531US1
Unit: $$U9
[05-01-02 10:02:37] PAGES PGT: OPIN
Cite as: 531 U. S. 98 (2000)
133
Souter, J., dissenting
the trial judge did) that a probability, not a possibility, should
be necessary to justify a contest, that reading is not required
by the statute’s text, which says nothing about probability.
Whatever people of good will and good sense may argue
about the merits of the Florida court’s reading, there is no
warrant for saying that it transcends the limits of reasonable
statutory interpretation to the point of supplanting the statute enacted by the “legislature” within the meaning of Article II.
In sum, the interpretations by the Florida court raise no
substantial question under Article II. That court engaged
in permissible construction in determining that Gore had instituted a contest authorized by the state statute, and it proceeded to direct the trial judge to deal with that contest
in the exercise of the discretionary powers generously conferred by Fla. Stat. Ann. § 102.168(8) (Supp. 2001), to “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.” As
Justice Ginsburg has persuasively explained in her own
dissenting opinion, our customary respect for state interpretations of state law counsels against rejection of the Florida
court’s determinations in this case.
III
It is only on the third issue before us that there is a meritorious argument for relief, as this Court’s per curiam opinion recognizes. It is an issue that might well have been
dealt with adequately by the Florida courts if the state proceedings had not been interrupted, and if not disposed of at
the state level it could have been considered by the Congress
in any electoral vote dispute. But because the course of
relevant figure is approximately 60,000, Tr. of Oral Arg. 62, the number of
ballots in which no vote for President was recorded by the machines.
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