BUSH v. PALM BEACH COUNTY CANVASSING BOARD et al.

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70 OCTOBER TERM, 2000
Syllabus
BUSH v. PALM BEACH COUNTY CANVASSING
BOARD et al.
certiorari to the supreme court of florida
No. 00–836. Argued December 1, 2000—Decided December 4, 2000
The day after the November 7, 2000, Presidential election, the Florida
Division of Elections reported that petitioner, Governor George W.
Bush, had received 1,784 more votes than respondent Vice President
Albert Gore, Jr. Under the Florida Election Code, an automatic ma-
chine recount occurred, resulting in a much smaller margin of victory
for Bush. Gore then exercised his statutory right to submit written
requests for manual recounts to the canvassing boards of four Florida
counties, see Fla. Stat. § 102.166, and subsequently joined in this suit
to require manual recounts and the certification of the recount results.
Among other things, the Florida Circuit Court held that § 102.111’s
7-day recount deadline was mandatory, but that the Volusia County
board could amend its returns at a later date, and ruled that the Secre-
tary of State (Secretary), after considering all attendant facts and
circumstances, could exercise her discretion in deciding whether to
include the late amended returns in the statewide certification. After
the Secretary rejected the four counties’ requests to make late filings,
the Circuit Court denied an emergency motion by the Florida Demo-
cratic Party and Gore, ruling that the Secretary had not acted arbi-
trarily and had exercised her discretion in a reasonable manner consist-
ent with the court’s earlier ruling. The First District Court of Appeal
certified the matter to the Florida Supreme Court, which, inter alia,
enjoined the Secretary and the Elections Canvassing Commission from
certifying the election results and declaring a winner until further
order; held that a discrepancy between the machine returns and a sam-
ple manual recount was sufficient to trigger the statutory provisions for
a full manual recount; and ruled that § 102.112, which provides that the
Secretary “may . . . ignor[e]” late election returns, controlled over the
conflicting provision in § 102.111, which specifies that the Secretary
“shall . . . ignor[e]” such returns. Relying in part on the right to vote
set forth in the State Constitution, the court concluded that the Secre-
tary may reject late manual recounts only under limited circumstances.
Invoking its equitable powers, the court imposed a November 26 dead-
line for a return of ballot counts, thereby effectively extending by 12
days § 102.111’s 7-day deadline, and directed the Secretary to accept
manual counts submitted prior to that deadline.

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Syllabus
Held: In light of considerable uncertainty as to the precise grounds for
decision, the judgment of the Florida Supreme Court is vacated, and
the case is remanded. This Court generally defers to a state court’s
interpretation of a state statute. But in the case of a state law ap-
plicable not only to elections to state offices, but also to the selection
of Presidential electors, the state legislature is not acting solely under
the authority given it by the State, but by virtue of a direct grant
of authority under Art. II, § 1, cl. 2, of the United States Constitution,
which requires each State to appoint its electors “in such Manner as the
Legislature thereof may direct.” Insertion of those words into that
Clause, while operating as a limitation upon the State in respect of any
attempt to circumscribe the legislative power, cannot be held to operate
as a limitation on that power itself. McPherson v. Blacker, 146 U. S.
1, 25. Review of the opinion below reveals considerable uncertainty as
to the precise grounds for the decision. See Minnesota v. National
Tea Co., 309 U. S. 551, 555. Specifically, this Court is unclear both as
to the extent to which the Florida Supreme Court saw the Florida Con-
stitution as circumscribing the legislature’s authority under Art. II, § 1,
cl. 2, and as to the consideration the Florida court accorded to 3 U. S. C.
§ 5, which contains a federal-law principle that would assure finality of
the State’s determination if made pursuant to a state law in effect before
the election. That is sufficient reason for this Court to decline at this
time to review the federal questions asserted to be present. See 309
U. S., at 555. While state courts must be free to interpret their state
constitutions, it is equally important that ambiguous or obscure state-
court adjudications not stand as barriers to a determination by this
Court of the validity of state action under the Federal Constitution.
Intelligent exercise of the Court’s appellate powers compels it to ask for
the elimination of the obscurities and ambiguities from the opinions in
such cases. Id., at 557.
772 So. 2d 1220, vacated and remanded.
Theodore B. Olson argued the cause for petitioner. With
him on the briefs were Terence P. Ross, Douglas R. Cox,
Thomas G. Hungar, Mark A. Perry, Benjamin L. Ginsberg,
Michael A. Carvin, Barry Richard, John F. Manning, Wil-
liam K. Kelley, Bradford R. Clark, George J. Terwilliger
III, Timothy E. Flanigan, and Marcos D. Jime´nez. Joseph
P. Klock, Jr., argued the cause for Katherine Harris et al.,
respondents under this Court’s Rule 12.6, in support of peti-

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72 BUSH v. PALM BEACH COUNTY CANVASSING BD.
Counsel
tioner. With him on the briefs were John W. Little III,
Ricardo M. Martinez-Cid, and Bill L. Bryant, Jr.
Paul F. Hancock, Deputy Attorney General of Florida,
argued the cause for respondent Butterworth, Attorney
General of Florida. With him on the brief were Mr. Butter-
worth, pro se, and Jason Vail and Kimberly J. Tucker, As-
sistant Attorneys General. Laurence H. Tribe argued the
cause for respondents Gore et al. With him on the briefs
were David Boies, Kathleen M. Sullivan, Thomas C. Gold-
stein, Teresa Wynn Roseborough, James A. Orr, Andrew
J. Pincus, Kendall Coffey, Jonathan S. Massey, and Peter J.
Rubin. Samuel S. Goren, Edward A. Dion, and Tamara M.
Scrudders filed a brief for respondents Broward County Can-
vassing Board et al. Bruce S. Rogow, Beverly A. Pohl, and
Denise D. Dytrych filed a brief for respondent Palm Beach
County Canvassing Board.*
*Briefs of amici curiae urging reversal were filed for the State of
Alabama et al. by Bill Pryor, Attorney General of Alabama, and Margaret
L. Fleming, John J. Park, Jr., Charles B. Campbell, Scott L. Rouse,
A. Vernon Barnett IV, and Richard E. Trewhella, Jr., Assistant Attor-
neys General; for the Commonwealth of Virginia et al. by Mark L. Earley,
Attorney General of Virginia, Randolph A. Beales, Chief Deputy Attor-
ney General, William Henry Hurd, Solicitor General, Judith Williams
Jagdmann, Deputy Attorney General, Siran S. Faulders and Maureen
Riley Matsen, Senior Assistant Attorneys General, Eleanor Anne Ches-
ney, Anthony P. Meredith, and Valerie L. Myers, Assistant Attorneys
General, Charlie Condon, Attorney General of South Carolina, and Don
Stenberg, Attorney General of Nebraska; and for William H. Haynes et al.
by Jay Alan Sekulow, Thomas P. Monaghan, Stuart J. Roth, Colby M.
May, James M. Henderson, Sr., David A. Cortman, Griffin B. Bell, Paul
D. Clement, and Jeffrey S. Bucholtz.
Steven R. Shapiro, Laughlin McDonald, and James K. Green filed a
brief for the American Civil Liberties Union as amicus curiae urging
affirmance.
Briefs of amici curiae were filed for the Florida Senate et al. by Charles
Fried, Einer Elhauge, and Roger J. Magnuson; for the State of Iowa et al.
by Thomas J. Miller, Attorney General of Iowa, Dennis W. Johnson, Solic-
itor General, and Tam B. Ormiston, Deputy Attorney General, and by the
Attorneys General for their respective States as follows: Bill Lockyer of

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73 Cite as: 531 U. S. 70 (2000)
Per Curiam
Per Curiam.
The Supreme Court of the State of Florida interpreted
its elections statutes in proceedings brought to require
manual recounts of ballots, and the certification of the re-
count results, for votes cast in the quadrennial Presidential
election held on November 7, 2000. Governor George W.
Bush, Republican candidate for the Presidency, filed a peti-
tion for certiorari to review the Florida Supreme Court de-
cision. We granted certiorari on two of the questions pre-
sented by petitioner: whether the decision of the Florida
Supreme Court, by effectively changing the State’s elector
appointment procedures after election day, violated the Due
Process Clause or 3 U. S. C. § 5, and whether the decision of
that court changed the manner in which the State’s electors
are to be selected, in violation of the legislature’s power to
designate the manner for selection under Art. II, § 1, cl. 2, of
the United States Constitution. Post, p. 1004.
On November 8, 2000, the day following the Presidential
election, the Florida Division of Elections reported that
Governor Bush had received 2,909,135 votes, and respond-
ent Democrat Vice President Albert Gore, Jr., had received
2,907,351, a margin of 1,784 in Governor Bush’s favor.
Under Fla. Stat. § 102.141(4) (2000), because the margin of
victory was equal to or less than one-half of one percent
of the votes cast, an automatic machine recount occurred.
The recount resulted in a much smaller margin of victory
for Governor Bush. Vice President Gore then exercised his
California, Richard Blumenthal of Connecticut, Earl I. Anzai of Hawaii,
Karen M. Freeman-Wilson of Indiana, Andrew Ketterer of Maine, J. Jo-
seph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Joseph
P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Patricia A.
Madrid of New Mexico, Drew Edmondson of Oklahoma, Hardy Myers
of Oregon, and Sheldon Whitehouse of Rhode Island; for the American
Civil Rights Union by John C. Armor and Peter Ferrara; for the Coalition
for Local Sovereignty by Kenneth B. Clark; and for the Disenfranchised
Voters in the USA et al. by Ilise Levy Feitshans.

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74 BUSH v. PALM BEACH COUNTY CANVASSING BD.
Per Curiam
statutory right to submit written requests for manual re-
counts to the canvassing board of any county. See § 102.166.
He requested recounts in four counties: Volusia, Palm Beach,
Broward, and Miami-Dade.
The parties urged conflicting interpretations of the Flor-
ida Election Code respecting the authority of the canvass-
ing boards, the Secretary of State (hereinafter Secretary),
and the Elections Canvassing Commission. On November
14, in an action brought by Volusia County, and joined by
the Palm Beach County Canvassing Board, Vice President
Gore, and the Florida Democratic Party, the Florida Circuit
Court ruled that the statutory 7-day deadline was manda-
tory, but that the Volusia board could amend its returns at a
later date. The court further ruled that the Secretary, after
“considering all attendant facts and circumstances,” App. to
Pet. for Cert. 49a, could exercise her discretion in deciding
whether to include the late amended returns in the state-
wide certification.
The Secretary responded by issuing a set of criteria by
which she would decide whether to allow a late filing. The
Secretary ordered that, by 2 p.m. the following day, Novem-
ber 15, any county desiring to forward late returns submit a
written statement of the facts and circumstances justify-
ing a later filing. Four counties submitted statements, and,
after reviewing the submissions, the Secretary determined
that none justified an extension of the filing deadline. On
November 16, the Florida Democratic Party and Vice Presi-
dent Gore filed an emergency motion in the state court, ar-
guing that the Secretary had acted arbitrarily and in con-
tempt of the court’s earlier ruling. The following day, the
court denied the motion, ruling that the Secretary had not
acted arbitrarily and had exercised her discretion in a rea-
sonable manner consistent with the court’s earlier ruling.
The Democratic Party and Vice President Gore appealed
to the First District Court of Appeal, which certified the
matter to the Florida Supreme Court. That court accepted

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jurisdiction and sua sponte entered an order enjoining the
Secretary and the Elections Canvassing Commission from
finally certifying the results of the election and declaring a
winner until further order of that court.
The Supreme Court, with the expedition requisite for the
controversy, issued its decision on November 21. Palm
Beach County Canvassing Bd. v. Harris, 772 So. 2d 1220
(2000). As the court saw the matter, there were two princi-
pal questions: whether a discrepancy between an original
machine return and a sample manual recount resulting from
the way a ballot has been marked or punched is an “error
in vote tabulation” justifying a full manual recount; and how
to reconcile what it spoke of as two conflicts in Florida’s
election laws: (a) between the timeframe for conducting a
manual recount under Fla. Stat. § 102.166 (2000) and the
timeframe for submitting county returns under §§ 102.111
and 102.112, and (b) between § 102.111, which provides that
the Secretary “shall . . . ignor[e]” late election returns, and
§ 102.112, which provides that she “may . . . ignor[e]” such
returns.
With regard to the first issue, the court held that, under
the plain text of the statute, a discrepancy between a sample
manual recount and machine returns due to the way in which
a ballot was punched or marked did constitute an “error in
vote tabulation” sufficient to trigger the statutory provisions
for a full manual recount.
With regard to the second issue, the court held that the
“shall . . . ignor[e]” provision of § 102.111 conflicts with the
“may . . . ignor[e]” provision of § 102.112, and that the “may
. . . ignor[e]” provision controlled. The court turned to the
questions whether and when the Secretary may ignore late
manual recounts. The court relied in part upon the right
to vote set forth in the Declaration of Rights of the Florida
Constitution in concluding that late manual recounts could be
rejected only under limited circumstances. The court then
stated: “[B]ecause of our reluctance to rewrite the Florida

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Per Curiam
Election Code, we conclude that we must invoke the equi-
table powers of this Court to fashion a remedy . . . .” 772
So. 2d, at 1240. The court thus imposed a deadline
of November 26, at 5 p.m., for a return of ballot counts.
The 7-day deadline of § 102.111, assuming it would have
applied, was effectively extended by 12 days. The court
further directed the Secretary to accept manual counts sub-
mitted prior to that deadline.
As a general rule, this Court defers to a state court’s inter-
pretation of a state statute. But in the case of a law enacted
by a state legislature applicable not only to elections to state
offices, but also to the selection of Presidential electors, the
legislature is not acting solely under the authority given it
by the people of the State, but by virtue of a direct grant of
authority made under Art. II, § 1, cl. 2, of the United States
Constitution. That provision reads:
“Each State shall appoint, in such Manner as the Leg-
islature 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 . . . .”
Although we did not address the same question petitioner
raises here, in McPherson v. Blacker, 146 U. S. 1, 25 (1892),
we said:
“[Art. II, § 1, cl. 2,] does not read that the people or the
citizens shall appoint, but that ‘each State shall’; and if
the words ‘in such manner as the legislature thereof may
direct,’ had been omitted, it would seem that the legisla-
tive power of appointment could not have been success-
fully questioned in the absence of any provision in the
state constitution in that regard. Hence the insertion
of those words, while operating as a limitation upon the
State in respect of any attempt to circumscribe the leg-
islative power, cannot be held to operate as a limitation
on that power itself.”

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Per Curiam
There are expressions in the opinion of the Supreme Court
of Florida that may be read to indicate that it construed
the Florida Election Code without regard to the extent to
which the Florida Constitution could, consistent with Art. II,
§ 1, cl. 2, “circumscribe the legislative power.” The opinion
states, for example, that “[t]o the extent that the Legislature
may enact laws regulating the electoral process, those laws
are valid only if they impose no ‘unreasonable or unneces-
sary’ restraints on the right of suffrage” guaranteed by the
State Constitution. 772 So. 2d, at 1236. The opinion also
states that “[b]ecause election laws are intended to facilitate
the right of suffrage, such laws must be liberally construed
in favor of the citizens’ right to vote . . . .” Id., at 1237.
In addition, 3 U. S. C. § 5 provides in pertinent part:
“If any State shall have provided, by laws enacted
prior to the day fixed for the appointment of the elec-
tors, for its final determination of any controversy or
contest concerning the appointment of all or any of the
electors of such State, by judicial or other methods or
procedures, and such determination shall have been
made at least six days before the time fixed for the meet-
ing of the electors, such determination made pursuant
to such law so existing on said day, and made at least
six days prior to said time of meeting of the electors,
shall be conclusive, and shall govern in the counting of
the electoral votes as provided in the Constitution, and
as hereinafter regulated, so far as the ascertainment of
the electors appointed by such State is concerned.”
The parties before us agree that whatever else may be the
effect of this section, it creates a “safe harbor” for a State
insofar as congressional consideration of its electoral votes
is concerned. If the state legislature has provided for final
determination of contests or controversies by a law made
prior to election day, that determination shall be conclu-
sive if made at least six days prior to said time of meeting

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of the electors. The Florida Supreme Court cited 3 U. S. C.
§§ 1–10 in a footnote of its opinion, 772 So. 2d, at 1238, n. 55,
but did not discuss § 5. Since § 5 contains a principle of
federal law that would assure finality of the State’s de-
termination if made pursuant to a state law in effect before
the election, a legislative wish to take advantage of the “safe
harbor” would counsel against any construction of the Elec-
tion Code that Congress might deem to be a change in the
law.
After reviewing the opinion of the Florida Supreme Court,
we find “that there is considerable uncertainty as to the
precise grounds for the decision.” Minnesota v. National
Tea Co., 309 U. S. 551, 555 (1940). This is sufficient reason
for us to decline at this time to review the federal questions
asserted to be present. See ibid.
“It is fundamental that state courts be left free and un-
fettered by us in interpreting their state constitutions.
But it is equally important that ambiguous or obscure
adjudications by state courts do not stand as barriers
to a determination by this Court of the validity under
the federal constitution of state action. Intelligent ex-
ercise of our appellate powers compels us to ask for
the elimination of the obscurities and ambiguities from
the opinions in such cases.” Id., at 557.
Specifically, we are unclear as to the extent to which the
Florida Supreme Court saw the Florida Constitution as cir-
cumscribing the legislature’s authority under Art. II, § 1,
cl. 2. We are also unclear as to the consideration the Florida
Supreme Court accorded to 3 U. S. C. § 5. The judgment of
the Supreme Court of Florida is therefore vacated, and the
case is remanded for further proceedings not inconsistent
with this opinion.
It is so ordered.