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Dissenting, concurring opinions show justices deeply divided on aspects of Florida vote case


WASHINGTON (CNN) -- The U.S. Supreme Court, in a 7-2 decision late Tuesday, reversed a Florida Supreme Court decision ordering the hand recounts of thousands of votes, a ruling apparently benefiting Republican presidential candidate George W. Bush in the razor-thin election that remains undecided more than a month after Election Day.

"Seven justices of this Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court," according to a 7-2 "per curiam," or unsigned, opinion. "The only disagreement is as to the remedy."

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Bush campaign observer James Baker reacts to the decision of the U.S. Supreme Court regarding the election recounts (December 12)

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U.S. Supreme Court opinion in Bush v. Gore (FindLaw) *

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The nation's highest court also remanded Bush v. Gore to the Florida Supreme Court for further proceedings, but effectively ended the manual recounts as unconstitutional.

The court said the Florida court's holding Friday that the votes that were rejected must be examined to glean "voter intent" is wrong, noting that some ballots have indentations and others have "chads" -- protruding pieces of paper -- hanging by two corners, for instance.

The different conditions of the ballots, and the fact that there is no uniform, statewide standard to determine how and who should count the ballots renders the manual recount process unconstitutional under the 14th Amendment's equal protection guarantee, the ruling said.

"The formulation of uniform rules to determine intent based on these recurring circumstances is practicable and, we conclude, necessary," the ruling said.

In a blistering rebuke to the Florida court's 4-3 ruling Friday, the U.S. Supreme Court said: "The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees."

The Bush campaign had argued that different Florida counties would use different methods for hand counting votes, and the lack of a uniform standard means votes would be treated differently, a violation of the 14th Amendment.

' The right to vote is protected by more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another. '

- Excerpts from U.S. Supreme Court

Essentially, the Bush camp has argued, voter choices in some counties would be given greater importance than others, resulting in an unequal treatment of ballots and, by extension, the voters themselves.

Bush lawyer Theodore Olson had also argued that the Florida court violated Article II of the U.S. Constitution, which empowers legislatures to decide how electors will be chosen, and the Title III federal law, which set a December 12 deadline for electors to be chosen.

Democrat Al Gore's lawyer David Boies argued that the Florida court only interpreted Florida law and did not violate the U.S. Constitution or any federal laws.

The Gore campaign said the differing recount standards are normal across the country, and the Florida court was relying on existing laws and language in Florida election laws in asking the recounts to proceed to determine "voter intent" in rejected ballots.

The 7-2 ruling also said the manual recounts would be impossible to complete before a federally imposed Tuesday deadline for states to choose electors.

"That date is upon us, and there is no recount procedure in place under the State Supreme Court's orders that comports with minimal constitutional standards," the ruling said. "Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional ... we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed."

The justices also seemed to indicate that they were uncomfortable with having to resolve a presidential election, which more properly must be decided by the voters and the political process.

"When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront," according to the 13-page ruling.

Because it was unsigned, the ruling does not identify the authors.

But strongly worded concurring and dissenting opinions indicated a deep rift in the court. Chief Justice William Rehnquist and Justices Antonin Scalia, Clarence Thomas, Sandra Day O'Connor and Anthony Kennedy seemed to form a five-justice majority in deciding that new recounts should not be ordered to remedy the problems.

O'Connor and Kennedy, considered the key swing votes, appeared to have sided with the majority though they did not attach their names to a concurring opinion signed by Rehnquist, Scalia and Thomas.

Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens wrote dissents to parts or whole of the unsigned opinion, thereby forming the four-justice minority.

Reuters contributed to this report.

U.S. Supreme Court hears Florida election case -- again
December 10, 2000
Scalia and Stevens clash over recount stay in Bush v. Gore
December 10, 2000
Possibility of Electoral College defections raised
December 10, 2000

Supreme Court of the United States
Supreme Court of Florida

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