# In Bush v. Gore 2000, what remedy did the 7-2 Supreme Court Decision offer **URL:** \ **Category:** Great Debates\ **Created:** [July 24, 2005, 3:01am UTC](https://boards.straightdope.com/t/in-bush-v-gore-2000-what-remedy-did-the-7-2-supreme-court-decision-offer/313889 "2005-07-24T03:01:39Z")\ **Posts on this page:** 18\ **Page:** 1
**Author:** ![Lynwood\_Slim](https://avatars.discourse-cdn.com/v4/letter/l/6f9a4e/32.png) [@Lynwood\_Slim](https://boards.straightdope.com/u/Lynwood_Slim)\ **Post date:** [July 24, 2005, 3:01am UTC](https://boards.straightdope.com/t/in-bush-v-gore-2000-what-remedy-did-the-7-2-supreme-court-decision-offer/313889/1 "2005-07-24T03:01:39Z")
I have been reviewing the Bush v. Gore Supreme court case. After lots of research, the Wikipedia article seems to be a fair summary with good links. In any case, the Supreme Court had two decisions before it. One decision seems to have been, was whether a total recount of Florida votes would create a valid decision. That was decided 7-2 – that the recount would not be valid, as it would violate equal protection, each county having a different standard as to how to count ballots that the machine couldn’t count. The second decision was to stop counting at all, that was 5-4. The reasoning there seems to have been that if a final count did not support a Bush victory, that the presidency would be undermined. From my reading of this, and I hope I have it right, the decision to make Bush president (i.e., that a recount would not be valid) was 7-2, not 5-4; the 5-4 decision was to stop the recount entirely. I am really not interested in a debate, but my experience here is that this question will probably become one. I hope there is an at least relatively impartial legal expert out there who can verify or explain what the 7-2 decision was about, and what remedy it offered, if any. It seems to be it offered no remedy other than to let the recount continue, but that it would not be valid, and that the original certification that made Bush president in 04 would stand. Could we not make this into a referendum on Bush? I am interested in the legal decision. ---
**Author:** ![rjung](https://avatars.discourse-cdn.com/v4/letter/r/45deac/32.png) [@rjung](https://boards.straightdope.com/u/rjung)\ **Post date:** [July 24, 2005, 6:33am UTC](https://boards.straightdope.com/t/in-bush-v-gore-2000-what-remedy-did-the-7-2-supreme-court-decision-offer/313889/2 "2005-07-24T06:33:40Z")
I was not under the impression that the Supreme Court had to suggest a remedy of any sort, but merely to rule on the legality (or lack thereof) of the issue. Suggest a solution? Why, that’s judicial activism! 😉 As for the “equal protection” issue, I’ll just quote from [A Layman’s Guide to the Supreme Court Decision in Bush v. Gore](http://www.rut.com/misc/mark-levine.html): > [@](#): > > Q: Wait, wait. I thought the problem was “equal protection,” that some counties counted votes differently from others. Isn’t that a problem? > A: It sure is. Across the nation, we vote in a hodgepodge of systems. Some, like the optical-scanners in largely Republican-leaning counties record 99.7% of the votes. Some, like the punchcard systems in largely Democratic-leaning counties record only 97% of the votes. So approximately 3% of Democratic votes are thrown in the trash can. > > Q: Aha! That’s a severe equal-protection problem!!! > A: No it’s not. The Supreme Court wasn’t worried about the 3% of Democratic ballots thrown in the trashcan in Florida. That “complexity” was not a problem. > > Q: Yikes. So what was the serious equal protection problem? > A: The problem was neither the butterfly ballot nor the 3% of Democrats (largely African-American) disenfranchised. The problem is that somewhat less than .005% of the ballots may have been determined under slightly different standards because judges sworn to uphold the law and doing their best to accomplish the legislative mandate of “clear intent of the voter” may have a slightly different opinion about the voter’s intent. ---
**Author:** ![squeegee](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/squeegee/32/14537_2.png) [@squeegee](https://boards.straightdope.com/u/squeegee)\ **Post date:** [July 24, 2005, 6:35am UTC](https://boards.straightdope.com/t/in-bush-v-gore-2000-what-remedy-did-the-7-2-supreme-court-decision-offer/313889/3 "2005-07-24T06:35:47Z")
Non-lawyer here: why is a “remedy” important for the 7-2 decision? Or for any decision? ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [July 24, 2005, 7:40am UTC](https://boards.straightdope.com/t/in-bush-v-gore-2000-what-remedy-did-the-7-2-supreme-court-decision-offer/313889/4 "2005-07-24T07:40:48Z")
[Here](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=00-949) is the actual text of the decision if you wish to read it for yourself. The basic issue was that the recount was being done in a fairly blatant unconstitutional manner. The 14th amendment says that States must give all citizens equal protection under the law. In other words, a State can not treat a person or class differently without a rational basis to do so. In the case of the recount the undervote ballots, those with an incomplete mark for a vote, were being recounted while the overvote, those with multiple marks for a vote, were not. The recount was providing a remedy to the citizens that mistakenly undervoted that was not provided to those that overvoted. Since there is no rational basis to do so the recount was violating equal protection of the citizens that overvoted. The other issue was that there was no standard for counting the undervotes. In some counties 3 times as many ballots were being counted than others. Such a significant difference without a valid reason to do so violated equal protection also. Those two problems would have taken a significant amount of time to resolve and Florida law required contested elections to be settled by December 12th. Since it was impossible to conduct the recount in a consitutional manner and consistant with Florida law (the case was decided on Dec. 12th.) the recount was stopped. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 24, 2005, 9:37am UTC](https://boards.straightdope.com/t/in-bush-v-gore-2000-what-remedy-did-the-7-2-supreme-court-decision-offer/313889/5 "2005-07-24T09:37:56Z")
> [@rjung](#): > > I was not under the impression that the Supreme Court had to suggest a remedy of any sort, but merely to rule on the legality (or lack thereof) of the issue. Suggest a solution? Why, that’s judicial activism! 😉 You are woefully mistaken. Every case the federal courts decide includes a remedy. That’s what the “Cases and Controversies” requirement mandates. Granted, of course, that the nature of the remedy may by its scope become judicial activism. ---
**Author:** ![Lynwood\_Slim](https://avatars.discourse-cdn.com/v4/letter/l/6f9a4e/32.png) [@Lynwood\_Slim](https://boards.straightdope.com/u/Lynwood_Slim)\ **Post date:** [July 24, 2005, 2:57pm UTC](https://boards.straightdope.com/t/in-bush-v-gore-2000-what-remedy-did-the-7-2-supreme-court-decision-offer/313889/6 "2005-07-24T14:57:01Z")
Treis – you have grasped my question, thank you. Can you explain to me the difference between the 7-2 decision and the 5-4 decision – what did each decide? I had been under the impression that a sharply divided court (5-4) made Bush president, but if the 7-2 decision was the one that said a total Florida recount would be invalid, was it not that decision that made Bush president? If not (I could me mistaken here), if the 7-2 decision did say the recount would be invalid, what did it say should be done? Was its remedy to go back to the election certified by Harris, or something else. I am a bit embarassed to say, that I have read both decisions, and it is not exactly clear to me which one made Bush president. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [July 24, 2005, 4:45pm UTC](https://boards.straightdope.com/t/in-bush-v-gore-2000-what-remedy-did-the-7-2-supreme-court-decision-offer/313889/7 "2005-07-24T16:45:10Z")
> [@](#): > > Can you explain to me the difference between the 7-2 decision and the 5-4 decision – what did each decide? As I understand it, the first 7-2 decision said the recount was not constitutional as it was being conducted. In theory, this left open the possibility that the recount might be conducted in a different manner that might be constitutional. The second 5-4 decision said that no recount could be conducted in a constitutional manner within the time that existed. ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [July 24, 2005, 5:22pm UTC](https://boards.straightdope.com/t/in-bush-v-gore-2000-what-remedy-did-the-7-2-supreme-court-decision-offer/313889/8 "2005-07-24T17:22:38Z")
That “Layman’s Guide to the Supreme Court Decision in Bush v. Gore” looks quite biased. As if we don’t already have enough biased reporting on the issue. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [July 24, 2005, 8:35pm UTC](https://boards.straightdope.com/t/in-bush-v-gore-2000-what-remedy-did-the-7-2-supreme-court-decision-offer/313889/9 "2005-07-24T20:35:51Z")
> [@Lynwood Slim](#): > > Treis – you have grasped my question, thank you. > > Can you explain to me the difference between the 7-2 decision and the 5-4 decision – what did each decide? > > I had been under the impression that a sharply divided court (5-4) made Bush president, but if the 7-2 decision was the one that said a total Florida recount would be invalid, was it not that decision that made Bush president? > > If not (I could me mistaken here), if the 7-2 decision did say the recount would be invalid, what did it say should be done? Was its remedy to go back to the election certified by Harris, or something else. > > I am a bit embarassed to say, that I have read both decisions, and it is not exactly clear to me which one made Bush president. The Supreme Court was in essence stuck between a rock and a hard place. The recount was unconstitutional and the obvious remedy for that is to conduct it in a constitutional manner. Unfortunately there was a Florida law that said that a contested election must be decided by December 12th. Seeing as how the case was ruled on December 12th an acceptable recount could not have been completed in accordance with Florida law. 7 Justices agreed that the recount was unconstitutional but differed on what to do about it. Justice Breyer suggested remanding the Florida’s Supreme Court decision for an order to complete the recount by December 18th. In other words, they would have told the Florida Supreme Court to order a recount that would remedy the problems that rendered the first recount unconstitutional. This is where the split between the 5 and the other 2 in the 7 Justice majority occured. The majority ruled that Justice Breyer’s suggestion would violate Florida statute and thus would not be considered an appropiate action by the Florida Supreme court. Basically 7 agreed that the recount was unconstitutional and 5 agreed that it must be stopped. The two that dissented out of the 7 wanted to extend the Florida deadline and complete the recount in a constitutional manner. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [July 24, 2005, 8:50pm UTC](https://boards.straightdope.com/t/in-bush-v-gore-2000-what-remedy-did-the-7-2-supreme-court-decision-offer/313889/10 "2005-07-24T20:50:24Z")
Sorry, I missed a few questions. > [@Lynwood Slim](#): > > I had been under the impression that a sharply divided court (5-4) made Bush president, but if the 7-2 decision was the one that said a total Florida recount would be invalid, was it not that decision that made Bush president? The 7-2 decision said that the recount that was/had been done was unconstitutional. The 5-4 decision said that no recount could legally be completed. Neither decision made Bush president, that phrase was coined by Gore supporters as a sour grapes phrase to show that Bush didn’t win/Bush stole the election/Gore was robbed. > [@Lynwood Slim](#): > > If not (I could me mistaken here), if the 7-2 decision did say the recount would be invalid, what did it say should be done? Was its remedy to go back to the election certified by Harris, or something else. The suggestion was (and I am not sure how many Justices of the 4 agreed with it) to extend the Florida deadline and conduct the recount constitutionally. > [@Lynwood Slim](#): > > I am a bit embarassed to say, that I have read both decisions, and it is not exactly clear to me which one made Bush president. Unless I am completely missing something its not accurate to say that there were two decisions. Bush vs. Gore resulted in one decision, the recount was unconstitutional and the recount must be stopped. The 7-2 part stems from the disagreement on how to proceed after finding the recount unconstitutional. ---
**Author:** ![Hoops](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hoops/32/6408_2.png) [@Hoops](https://boards.straightdope.com/u/Hoops)\ **Post date:** [July 25, 2005, 12:40am UTC](https://boards.straightdope.com/t/in-bush-v-gore-2000-what-remedy-did-the-7-2-supreme-court-decision-offer/313889/11 "2005-07-25T00:40:54Z")
OK, I am pretty ignorant about legal matters on this level, but this paragraph struck me: > [@treis](#): > > The Supreme Court was in essence stuck between a rock and a hard place. The recount was unconstitutional and the obvious remedy for that is to conduct it in a constitutional manner. Unfortunately there was a Florida law that said that a contested election must be decided by December 12th. Seeing as how the case was ruled on December 12th an acceptable recount could not have been completed in accordance with Florida law. If that were the case, could the SCOTUS have entertained the idea that Florida’s December 12th statute itself might be unconstitutional, since it effectively precluded an acceptable recount in this very important instance? Sorry if this is an dumb question. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [July 25, 2005, 1:43am UTC](https://boards.straightdope.com/t/in-bush-v-gore-2000-what-remedy-did-the-7-2-supreme-court-decision-offer/313889/12 "2005-07-25T01:43:56Z")
Can’t see a way they would rule that way. The constitution says: > [@](#): > > 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. Its certainly reasonable to have a deadline for contested elections to be resolved and within a Sates’ power to do so. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [July 25, 2005, 1:13pm UTC](https://boards.straightdope.com/t/in-bush-v-gore-2000-what-remedy-did-the-7-2-supreme-court-decision-offer/313889/13 "2005-07-25T13:13:18Z")
> [@Bricker](#): > > You are woefully mistaken. Every case the federal courts decide includes a remedy. That’s what the “Cases and Controversies” requirement mandates. Then perhaps you could point out what it was in this case. You know, like, _answer the OP_, maybe? > [@treis](#): > > Its certainly reasonable to have a deadline for contested elections to be resolved and within a Sates’ power to do so. Is it also reasonable to footdrag and shop for injunctions from favorable courts until the deadline has run out? > [@](#): > > The Supreme Court was in essence stuck between a rock and a hard place. Not at all. They were not \*required \* to hear the case _at all_. The lower federal courts refused to, recognizing Florida’s jurisdiction in the federalist, nonactivist manner that Republicans normally say they favor. The equal-protection argument in the decision was reversed. Different people had different likelihoods of getting their votes counted in the first place, obviously a violation, but that was not discussed except by the Justices who said there was a (nonspecific) problem. The amount of correction needed to eliminate the EP violation had to vary proportionately, of course, but that was what the 5 ruled was \*itself \* an EP violation, not a means to enforce \*compliance \* with EP. It was just like a Jim Crow court ruling that giving blacks equal voting rights would treat them differently than whites and would therefore be a violation of EP in itself. ---
**Author:** ![Lynwood\_Slim](https://avatars.discourse-cdn.com/v4/letter/l/6f9a4e/32.png) [@Lynwood\_Slim](https://boards.straightdope.com/u/Lynwood_Slim)\ **Post date:** [July 26, 2005, 4:05am UTC](https://boards.straightdope.com/t/in-bush-v-gore-2000-what-remedy-did-the-7-2-supreme-court-decision-offer/313889/14 "2005-07-26T04:05:43Z")
Thanks Treis and others for non-polemical answers and close readings (as to the others, that’s why I thought it best to post this in “great debates.” I think I understand: The Supreme Court agreed, 7-2, that the recount ordered by the Florida Supreme Court, as it was conceived, was unconstitutional. To be honest, this is new to me. I had thought a that decision was the 5-4 decision. Of those who voted that the Florica S.C. decision was unconstitutional, two of those, along with the two dissents, wanted to send the case back to Florida, for them to come up with a new standard for recounting, right? The 5-4 vote was whether there was enough time, on December 11 when the case heard, to have a newly conceived recount done by December 12, which was the date set by the Florida constitution. Do I have this right? thanks. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [July 26, 2005, 4:49am UTC](https://boards.straightdope.com/t/in-bush-v-gore-2000-what-remedy-did-the-7-2-supreme-court-decision-offer/313889/15 "2005-07-26T04:49:27Z")
> [@Lynwood Slim](#): > > I think I understand: The Supreme Court agreed, 7-2, that the recount ordered by the Florida Supreme Court, as it was conceived, was unconstitutional. To be honest, this is new to me. I had thought a that decision was the 5-4 decision. > > Of those who voted that the Florica S.C. decision was unconstitutional, two of those, along with the two dissents, wanted to send the case back to Florida, for them to come up with a new standard for recounting, right? To be honest I am not entirely sure what exactly each Justice felt about the issue at hand. The majority decision claimed that 7 justices agreed that there were constitutional problems with the recount but only 5 joined the majority. Each Justice wrote a dissent and agreed to the other Justices in a hodge podge fashion. Reading them it doesn’t seem that 2 of the 4 would have overturned the Florida decision but the majority decision made it seem that they would. > [@Lynwood Slim](#): > > The 5-4 vote was whether there was enough time, on December 11 when the case heard, to have a newly conceived recount done by December 12, which was the date set by the Florida constitution. Do I have this right? Not quite, the ruling was made on December 12th (rather late in the night I believe). The deadline was actually a Federal law: > [@](#): > > If any State shall have provided, by laws enacted prior to the > day fixed for the appointment of the electors, 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 meeting 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. Basically saying that the electors should be determined 6 days before the meeting of electors. After that deadline it is in the hands of Congress on how to proceed in regards to which electors to use. Apparently Hawaii sent its electors late once and Congress chose to count them: > [@](#): > > They do not prohibit a State from counting what the majority concedes to be legal votes until a bona fide winner is determined. Indeed, in 1960, Hawaii appointed two slates of electors and Congress chose to count the one appointed on January 4, 1961, well after the Title 3 deadlines. See Josephson & Ross, Repairing the Electoral College, 22 J. Legis. 145, 166, n. 154 (1996).5 Thus, nothing prevents the majority, even if it properly found an equal protection violation, from ordering relief appropriate to remedy that violation without depriving Florida voters of their right to have their votes counted. As the majority notes, “[a] desire for speed is not a general excuse for ignoring equal protection guarantees.” Ante, at 10. However, the Florida Supreme Court ruled that the Florida Legislature intended to meet that deadline and according to the majority that meant the Florida Supreme Court could not extend the deadline. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [July 26, 2005, 3:05pm UTC](https://boards.straightdope.com/t/in-bush-v-gore-2000-what-remedy-did-the-7-2-supreme-court-decision-offer/313889/16 "2005-07-26T15:05:39Z")
[Bush v. Gore FAQ](http://www.iknowwhatyoudidlastelection.com/bush-supreme-court.htm): > [@](#): > > The US Supreme Court made clear that the Florida Supreme Court did not change the rules of the election. But the US Supreme Court found the failure of the Florida Court to change the rules was wrong. > > Q: Huh? > A: The Legislature declared that the only legal standard for counting vote is “clear intent of the voter.” The Florida Court was condemned for not adopting a clearer standard. > > Q: I thought the Florida Court was not allowed to change the Legislature’s law after the election. > A: Right. > > Q: So what’s the problem? > A: They should have. The US Supreme Court said the Florida Supreme Court should have “adopt[ed] adequate statewide standards for determining what is a legal vote” > > Q: I thought only the Legislature could “adopt” new law. > A: Right. > > Q: So if the Court had adopted new standards, I thought it would have been overturned. > A: Right. You’re catching on. > > Q: If the Court had adopted new standards, it would have been overturned for changing the rules. And if it didn’t, it’s overturned for not changing the rules. That means that no matter what the Florida Supreme Court did, legal votes could never be counted. > A: Right. Next question. > > Q: Wait, wait. I thought the problem was “equal protection,” that some counties counted votes differently from others. Isn’t that a problem? > A: It sure is. Across the nation, we vote in a hodgepodge of systems. Some, like the optical-scanners in largely Republican-leaning counties record 99.7% of the votes. Some, like the punchcard systems in largely Democratic-leaning counties record only 97% of the votes. So approximately 3% of Democratic votes are thrown in the trash can. > > Q: Aha! That’s a severe equal-protection problem!!! > A: No it’s not. The Supreme Court wasn’t worried about the 3% of Democratic ballots thrown in the trashcan in Florida. That “complexity” was not a problem. ---
**Author:** ![Lynwood\_Slim](https://avatars.discourse-cdn.com/v4/letter/l/6f9a4e/32.png) [@Lynwood\_Slim](https://boards.straightdope.com/u/Lynwood_Slim)\ **Post date:** [July 27, 2005, 4:06am UTC](https://boards.straightdope.com/t/in-bush-v-gore-2000-what-remedy-did-the-7-2-supreme-court-decision-offer/313889/17 "2005-07-27T04:06:50Z")
Elvis: I think you are factually incorrect on the issue of optical scanners, as well as most of your other points. see here: [http://www.policyreview.org/DEC01/elhauge.html](http://www.policyreview.org/DEC01/elhauge.html) but we stray: my original post had to do with what the exact difference was between the 7-2 vote and the 5-4 vote. As far as I can tell, 7 justices determined that the recount conceived by the Florida Supreme court had constitutional problems. I believe this to be significant. What I don’t quite understand is what remedy the two justices who said the Florida recount would be unconstitutional were in favor of. The five who voted to stop the recount (including the famous moderate O’Conner) seemed to favor the results that were certified on Nov 26 as the default remedy. What remedy were the four in the minority advocating? A newly conceived recount? That is my specific question, if you care to address it. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [July 27, 2005, 4:46am UTC](https://boards.straightdope.com/t/in-bush-v-gore-2000-what-remedy-did-the-7-2-supreme-court-decision-offer/313889/18 "2005-07-27T04:46:21Z")
The two Justices of the 7 that agreed on the equal protection claim would have remanded the case to the Florida Supreme Court for action in accordance with the ruling. Justice Souter did not feel that the Court should have reviewed the case at all but did agree a possible constitutional issue could have arose but felt that if the Florida Supreme Court was allowed to conduct the recount they would have eliminated those issues. > [@Justice Souter](#): > > The Court should not have reviewed either Bush v. Palm Beach County Canvassing Bd, or this case, and should not have stopped Florida’s attempt to recount all undervote ballots by issuing a stay of the Florida Supreme Court’s orders during the period of this review. If this Court had allowed the State to follow the course indicated by the opinions of its own Supreme Court, it is entirely possible that there would ultimately have been no issue requiring our review, and political tension could have worked itself out in the Congress following the procedure provided in 3 U. S. C. §15. The case being before us, however, its resolution by the majority is another erroneous decision. > [@Justice Souter](#): > > I can conceive of no legitimate state interest served by these differing treatments of the expressions of voters’ fundamental rights. The differences appear wholly arbitrary. > > ``` > In deciding what to do about this, we should take account of the fact that electoral votes are due to be cast in six days. **I would therefore remand the case to the courts of Florida with instructions to establish uniform standards for evaluating the several types of ballots that have prompted differing treatments,** to be applied within and among counties when passing on such identical ballots in any further recounting (or successive recounting) that the courts might order. > > Unlike the majority, I see no warrant for this Court to assume that Florida could not possibly comply with this requirement before the date set for the meeting of electors, December 18. > > ``` Justice Breyer also felt that the Court should not have taken the case: > [@Justice Breyer](#): > > ``` > The Court was wrong to take this case. It was wrong to grant a stay. It should now vacate that stay and permit the Florida Supreme Court to decide whether the recount should resume. > > ``` but it seems that Justice Breyer was in agreement at least on one count of the Equal protection claim: > [@Justice Breyer](#): > > The majority’s third concern does implicate principles of fundamental fairness. The majority concludes that the Equal Protection Clause requires that a manual recount be governed not only by the uniform general standard of the “clear intent of the voter,” but also by uniform subsidiary standards (for example, a uniform determination whether indented, but not perforated, “undervotes” should count)… > > I agree that, in these very special circumstances, basic principles of fairness may well have counseled the adoption of a uniform standard to address the problem. In light of the majority’s disposition, I need not decide whether, or the extent to which, as a remedial matter, the Constitution would place limits upon the content of the uniform standard. His remedy would have been to remand the case back to the Florida Supreme Court and let them determine whether there was enough time to do a constitutionally acceptable recount. The other two Justices felt that there were no substantial Equal Protection issues in the case. Justice Stevens felt that the Florida Supreme Court acted within its power and there were no substantial constitutional issues: > [@Justice Stevens](#): > > On rare occasions, however, either federal statutes or the Federal Constitution may require federal judicial intervention in state elections. This is not such an occasion. > > The federal questions that ultimately emerged in this case are not substantial. I would surmise that he would uphold whatever the Florida Supreme Court decided in regards to the election. He was, ah shall we say, disappointed in the Majority’s ruling in the case: > [@Justice Stevens](#): > > Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law. Justice Ginsberg agreed with Justice Stevens that there were no substantial Equal Protection claims. I would guess that she would have also upheld the Florida Supreme Court’s ruling: > [@Justice Ginsberg](#): > > ``` > I agree with Justice Stevens that petitioners have not presented a substantial equal protection claim. Ideally, perfection would be the appropriate standard for judging the recount. But we live in an imperfect world, one in which thousands of votes have not been counted. I cannot agree that the recount adopted by the Florida court, flawed as it may be, would yield a result any less fair or precise than the certification that preceded that recount. See, e.g., McDonald v. Board of Election Comm'rs of Chicago, 394 U.S. 802, 807 (1969) (even in the context of the right to vote, the state is permitted to reform " 'one step at a time' ") (quoting Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 489 (1955)). > > ```