In the Matter of Election Procedure: George W. Bush, Respondent v. Albert Gore, Jr. Appellate

April 8, 2008, Filed

Prior History: On writ of certiorari to the Florida Supreme Court

Disposition:

Counsel: For Appellant: Molly Price

For Respondent: Roman Goerss

Justices Gabriela Salvidea and Kramer Phillips delivered the opinion of the Court in which Chief Justice Jim Hanson joins.

FACTS OF THE CASE

Bush et al. seek to appeal the Florida Supreme Court’s decision to facilitate a recount initiated by Gore et al on the grounds that the recount violates the Fourteenth Amendment and that the Florida Supreme Court flouted the legislature’s chosen method for dealing with a recount and instead created new legislation for handling a petition and contest.

I. The Florida judiciary’s role in this recount complies with Florida law and with the U.S. Constitution

Upon review of Florida state law and the U.S. Constitution, it is clear that the actions of the Florida Supreme Court conformed to both. Article II of the U.S. Constitution reads:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

This does not mean that all electoral power is concentrated in the legislature. Florida’s legislature explicitly created an integral role for the judiciary in recounts. Article II, clearly, does not assign sole electoral authority to the legislature. It empowers the legislature to decide the manner in which the state and its various branches are to interact in the electoral process. A legislature—despite being empowered by the U.S. Constitution to craft its elections—always is subject to judicial review, as established, most notably, by Marbury v. Madison. The legislature is empowered to determine the interaction between the legislative branch and the judicial branch, and Florida’s legislature unquestionably understands—indeed, meant—for the judiciary to play the very role it has played in this recount. There is no valid Article II claim.

The real question is whether the recount proceeding determined by the legislature was undermined. It was not: the discretion afforded by the legislature to the judiciary in resolving election disputes is clear and broad. Florida statute addressing recounts reads: “the circuit judge to whom the contest is presented may fashion such orders as he or she deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under such circumstances,” Fla. Stat. §102.168(8) (2000) (emphasis added). This statute, in plain and unequivocal language, conveys that the legislature intended extensive involvement by the judiciary. Detailed judiciary actions are not prescribed, but that the judiciary can act as determined by its own discretion, is indisputable. The appellant argues that the Florida Supreme Court overstepped its bounds by legislating rather than merely interpreting: “The Florida Supreme court acted as a legislative maker, rather than a legal-interpreter. This is in stark contrast with Article II of the U.S. Constitution, which states that the Legislature, not the Judiciary, decides how the President shall be elected” (Price’s brief). The Florida Supreme Court did no such thing. The Florida Supreme Court, as per Fla. Stat. §102.168, fulfilled its legislature-sanctioned role by fashioning an effective recount. The legislature, as empowered by Article II, did decide how the President would be elected: it decided that the judiciary has broad powers in cases of a recount.

In light of the indisputable power granted to the judiciary by Fla. Stat. §102.168, the deadline changes made by the Florida Supreme Court comprise a reasonable means of both proper investigation and adequate relief. Nowhere in Florida statute, the Florida Constitution, or the U.S. Constitution is altering this sort of deadline prohibited—indeed, a deadline change is the very “fashioning” allowed explicitly by Florida statute. Florida statute does not enforce strict deadlines for recount procedures. Instead, it empowers the judiciary to decide how to execute a recount properly. And a properly executed recount, in this case, necessitated deadline changes. Indeed, the Court extended the deadline only because the recount has not had the opportunity to commence properly:

[T]he court concluded that it was the obligation of the Secretary of State to extend the deadline, and ordered the deadline extended by five days in order to compensate for the five days the recount lost because of the Division of Elections’ misinterpretation of the state’s election code that first halted it. There was nothing arbitrary about the deadline (Goerss’s brief).

Only by extending the deadline could the counties fulfill their duty of effectively executing a recount. And an effective recount is the aim of all these proceedings. The right to a recount ought to be treated seriously, just as seriously as the election itself, and the court has acted in this spirit. There are not a mere handful of ballots at issue—there are four extremely large counties’ worth of ballots and those ballots need time and care to be treated respectfully. Florida court precedent and the Florida Constitution uphold voter intent as the proper criterion by which to approach a ballot. Boardman v. Esteva, for example, interpreted the Florida Constitution to uphold this criterion. Thus, the Florida Supreme Court, by extending the recount deadline, fashioned a recount process that could actually determine voter intent and thus fulfill the goal of the election.

Further, there is no evidence that the deadline changes present a federal issue or that they violate Florida law. The appellant alleges that the deadline changes made by the Florida Supreme Court point to inappropriate legislating from the bench. This argument, in light of the language of the above statute, clearly is erroneous. In challenging the deadline changes, the appellant incorrectly looks to Fla. Stat. §102.112:

(1) The county canvassing board or a majority thereof shall file the county returns for the election of a federal or state officer with the Department of State immediately after certification of the election results. Returns must be filed by 5 p.m. on the 7th day following the first primary and general election and by 3 p.m. on the 3rd day following the second primary. If the returns are not received by the department by the time specified, such returns may be ignored and the results on file at that time may be certified by the department.

It is significant that this statute is not one intended to address protests or contests of elections. It refers only to commonplace elections. Since presently we are dealing with a recount we must be guided by the statutes that address recounts: Fla. Stat. §102.168 and Fla. Stat. §102.166. And neither one of these recount statutes prohibits deadlines changes.

The election scheme remains unchanged by the judiciary: in the case of a recount, the judiciary—as prescribed by the legislature—determines appropriate amelioration. Here, the judiciary decided not in favor of mere expediency, which halting the recount would have assured. It decided, in compliance with its state law and precedent, in favor of properly investigating a contested election and discerning voter intent, (State ex. Rel Carpenter v. Barber). In light of the recount statutes’ ambiguity, there is no single correct solution the Florida Supreme Court was dictated to “fashion” in compliance with its constitution or statutes. But there is no evidence that the solution fashioned by the Florida Supreme Court is an unconstitutional one. Article II empowers legislatures to decide their election procedures. The Florida legislature decided to give broad powers to the judiciary in recounts. The Florida Supreme Court carried out its duty in compliance with Florida statute, precedent, and the Constitution.

II. Secretary of State Katherine Harris’s role

Overruling Secretary of State Katherine Harris’s imposition of an inflexible deadline was in keeping with Florida law. Harrison’s definition of a legal vote was too narrow and clashed with Florida law’s definition of a legal vote. Thus, the judiciary, by overriding her deadlines, acted to uphold state law. The statute concerning the Secretary of State’s role reads: “If the returns are not received by the department by the time specified, such returns may be ignored and the results on file at that time may be certified by the department” Fla. Stat. § 102.112 (1) (2000) (emphasis added). The statute reads that the Secretary of State “may” ignore results, not that he or she must ignore them. Furthermore, this statute is ambiguous: is it referring to the context of a petition and contest? Or is it referring only to a conventional election? Since this ambiguity exists, it is appropriate to refer to the statute that explicitly addresses recounts. The appropriate statute allots procedural power to the judiciary, and since the Secretary of State’s role in this context was both unclear and contrary to the goals of the election, the judiciary was right to fashion an appropriate solution. Nowhere in the Florida statutes does it read that the power of the Secretary of State always ought to trump the judiciary’s power by virtue of it being part of the legislature, or that the legislature is not subject to judicial review.

Judicial review and intervention was necessary because Harris’s definition of a legal vote clashed with Florida statute, the Florida Constitution, and court precedent: “the Court drew upon the Florida state constitution and previous case law that established the intention of the voter as more important than arbitrary restrictions,” (Goerss’s brief). According to Harris, legal votes were only those that were cast in compliance with ballot directions, and thus her definition did not include undervotes. Florida statute, however, defines legal votes differently: “No vote shall be declared invalid or void if there is a clear indication of the intent of the voter as determined by the canvassing board,” Fla. Stat. § 101.5614 (5) (2000). The appellant argues that Harris’s interpretation was merely strict: “While her interpretation is strict, that does not make it invalid” (Price’s brief). Her interpretation is not merely “strict”—it flat-out contravenes Florida statute, precedent, and the Florida constitution. In light of Harris’s serious mistake, the Florida Supreme Court correctly applied the lawful criterion to votes: the intent of voters. Harris’s definition, one that prized form over content, was not reasonable or legal. The standard of voters’ intent is not “vague and easily manipulated,” as Price suggests in her brief. It is a standard employed by almost all states (see Bush v. Gore, Justice Stevens’s dissent, footnote 2). Further, the potential manipulation of this standard is not grounds for reversing the Florida Supreme Court’s decision. Acting to prevent an alleged future harm is faulty justification for overturning the Florida Supreme Court’s decision.

III. Florida is required to recount the entire State, not just four counties

From the time of its inception, the Equal Protection Clause has been held as an essential component to the lawmaking process. In Brown v. Board of Education we concluded:

…[T]hat in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and other similarly situated . . . are . . . deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.

In Reynolds v. Sims we noted, “The Equal Protection Clause requires substantially equal legislative representation for all citizens in a State regardless of where they reside.” In the case before the Court today we are again called to question the role of the equal protection clause in the case of voting. In Baker v. Carr we held the use of discriminatory apportionment laws unconstitutional in that they violated equal access to the right to cast a ballot. In Smith v. Allwright we noted that the use of white primary systems was unconstitutional in that a denial of an individual’s equal access to a right to vote for a candidate of their choosing violated the Fourteenth Amendment. The right to cast a meaningful vote is one of the most fundamental of human rights. Anytime a law weights an individual’s vote differently from that of another, we must subject such law to the strictest of scrutiny. Without a compelling state interest, the process in question would inevitably be struck down for a violation of the Fourteenth Amendment. The case before us today does not provide such a compelling state interest in denying voters their constitutionally protected right to have their ballot counted.

Here today, the right in question involves the right to have one’s vote counted in a manner equal to that of a resident in an adjacent county. The Court has repeatedly held the right to vote, as a right “preservative of all rights” Yick Wo v. Hopkins. History has shown us the importance of maintaining equality in our laws. Anytime a nation infringes on an individual’s right to equality, fundamental questions of the rights of humanity arise. This Court has repeatedly upheld individuals’ right to vote. In Reynolds v. Sims we noted:

Undeniably, the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as federal, elections. A consistent line of decisions by this Court in cases involving attempts to deny or restrict the right of suffrage has made this indelibly clear. It has been repeatedly recognized that all qualified voters have a constitutionally protected right to vote…and to have their votes counted.

Similarly, in United States v. Classic we noted the constitutionally protected right to vote, writing:

The right of the people to choose, whatever its appropriate constitutional limitations, where in other respects it is defined, and the mode of its exercise is prescribed by state action in conformity to the Constitution, is a right established and guaranteed by the Constitution, and hence is one secured by it to those citizens and inhabitants of the state entitled to exercise the right.

In a republican state the people are the sovereign. The ability to access the vote and have the vote counted is one in the same in terms of importance. If a vote is cast and then not heard what good is it? An unequal weighting of ballots effectively denies the right of an individual the right to cast a meaningful ballot. Systematic disenfranchisement of voters, be it either through poll taxes, gerrymandering, literacy tests, or race produces the same end product and we have rejected these. In Baker v. Carr we noted the need for addressing redistricting policies that disenfranchised minorities. In Katzenbach v. South Carolina we upheld the use of the Voter Rights Act to eliminate literacy tests and other barriers and to “banish the blight of racial discrimination in voting, which has infected the electoral process in parts of our country for nearly a century.” The history of the Fourteenth Amendment indicates the intention of lawmakers to increase access to the voting franchise. In Defunis Justice Douglas wrote that, “The equal protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized.” Indeed the passage of the Fourteenth Amendment allowed for the evolution of equal rights theory and the subsequent passage of the Fifteenth Amendment guaranteeing that no citizen would have his vote abridged on account of race.

An effective disenfranchisement of an individual’s right to cast a meaningful ballot, as seen in the case before this Court, falls within the aforementioned pattern of systemic disenfranchisement. The equality in question today is not the right of each presidential candidate to have all votes counted, but rather the right of the American people to have fair and honest elections. We noted this in Storer v. Brown writing:

Moreover, as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes. In any event, the States have evolved comprehensive, and in many respects complex, election codes regulating in most substantial ways, with respect to both federal and state elections, the time, place, and manner of holding primary and general elections, the registration and qualifications of voters, and the selection and qualification of candidates. Storer v. Brown

Fairness in elections fundamentally rests on the preservation of the right to have a ballot equally weighted against another. While an electoral system such as the one now demonstrated in Florida deploys different ballots, the means and manner in which those ballots are counted remains consistent across county boundaries. The substantial state interest of maintaining the integrity of elections is dependent upon the ability of election officials to produce and record accurate results; results that reflect the intention of the populace at large. Accurate results reflect the intention of not a select few counties, but the state at large. While the state of Florida failed to set a statewide standard before the presidential election, that failure is irrelevant to the case at hand. A difference in ballots—be they butterfly, electronic, or any other form—does imply they be treated different and so how they will be counted will be slightly different.

At risk is the true intention of the voter. The State of Florida in failing to set a statewide standard for determining the manner in which ballots must be counted, must adhere to the guidelines set forth by state election officials. The Constitution reserves the right for states to set the manner and times in which elections be conducted, yet it does not reserve the right of states to dilute the value of an individual’s ballot. County election officials must adhere to the guidelines set by state officials, while simultaneously protecting an individual’s right to have a vote weighted and counted in a manner synonymous that of others.

History has shown the intent of the voter matters even in elections of federal officials. While the Electoral College was founded with the intent of protecting the minority, history has proven that today the voice of the people is the overwhelming determinate in how electoral votes are distributed. In the case of the State of Florida, it awards 23 electoral votes to the winner of the state election, not county elections. The equal protection clause and case precedent mandates that all individual’s votes be counted and weighted equal to any other, so that the voice of the people be accurate and fairly tabulated. In cherry picking four counties out of sixty-seven, a recount of only those counties would weight those votes differently than those outside the confines of those targeted counties. We concede the fact that votes may be treated differently in respect to how they are counted, but this Court does not concede the notion that votes may be weighted differently. The intent of the voter is of fundamental importance in a democracy and the lack of a compelling state interest and the clear infringement of the Equal Protection Clause gives this Court reason to strike down a partial recount of ballots in the State of Florida. The margin of victory by Republican presidential candidate George W. Bush over Democratic presidential nominee Albert Gore, Jr. necessitates a statewide recount. The set deadline of December 18, 2000 is not a barrier to this recount and therefore we order a statewide recount. There is no reason the state of Florida cannot possibly comply with this deadline for electors, but even in the event that they cannot, it is still possible to extend the deadline.

In the case of Skinner v. Oklahoma we noted: The guarantee of "equal protection of the laws is a pledge of the protection of equal laws." The state of Florida in treating and weighting ballots different from one another, inherently violates the laws of equality. It has discriminated against those outside the boundaries of selected counties, by denying them an equally weighted ballot. A recount invariably counts and weights a vote different from that a county in which a recount is not conducted. As we held in Wesberry v. Sanders that, “the constitutional requirement in Art. I, 2, that Representatives be chosen "by the People of the several States" means that as nearly as is practicable one person's vote in a congressional election is to be worth as much as another's.” The denial of an equally weighted ballot, due to one’s place of residence—a choice that cannot be readily changed—cannot survive our constitution’s insistence on equality in counting ballots.

V. Summary

This case shall be remanded to the Florida Supreme Court with instructions to move forward with the recount without further impediments. The voter intent standard is a clear one, and one used in a number of states. Upholding the Florida Supreme Court’s decision respects the judiciary’s power to interpret its own state law; respects the legislature’s decision to create an integral role for the judiciary; and respects the intent of Florida’s voters, since the standard upheld by the Florida Supreme Court is one that upholds the proper ballot criterion. The purpose of a recount is not to pacify a bitter losing candidate by halfheartedly performing a recount—it is to address seriously the very real problem of voter disenfranchisement, and ascertain voter intent. The Florida Supreme Court has acted according to this correct purpose.