Revista da EMERJ - V. 20 - N. 2 - Maio/Agosto - 2018

 R. EMERJ, Rio de Janeiro, v. 20, n. 2, p. 8 - 53, Maio/Agosto. 2018  14 -marked ballots, if conducted pursuant to standards no more precise than ascertaining the “intent of the voter,” would violate the Equal Protection Clause of the Fourteenth Amendment. This is, primarily, because of the risk that identical ballots–from different counties or even from the same county–might be evaluated differently. 22 Speci- fically, punch card ballots with partially detached chads or indented chads might be counted by one counting team based on its inter- pretation of the “intent of the voter” standard, but not by another applying a disparate interpretation. Second, the majority ruled that a remand to the Florida Supreme Court for an opportunity to devise more precise, uniform standards to guide the manual recount, which might alleviate any equal protection concerns, was impossible becau- se of looming time constraints. Specifically, Bush v. Gore was handed down roughly two hours before midnight on December 12–the day on which resolution of the election contest had to be completed, if Florida’s slate of presidential electors was to enjoy the “safe harbor” from congressional challenge afforded by federal statute. Neither aspect of the majority opinion is persuasive. The majority’s equal protection rationale creates entirely new law. 23 Never before had the Supreme Court (and perhaps not any other court either) intimated that application of a vague statutory standard like “intent of the voter” in a manual recount (or any other vote count, for that matter) violated the Equal Protection Clause be- cause of the risk that identically-marked ballots might be counted differently. 24 Of course, to say that Bush v. Gore creates new equal protection law is not to say that it is wrong (except, of course, for Justice Scalia, who is on record as rejecting novel constitutional inter- 22 Bush v. Gore , slip opinion at 8-9. This was not the only equality concern the majority raised. The majority also suggested that limiting a manual recount to undervotes (and excluding overvotes) and using untrained personnel as vote counters raised equal protection concerns. 23 The plethora of states employing the “intent of the voter” standard in a wide variety of contexts, including manual recounts and the counting of write-in and absentee ballots, no doubt were surprised to learn that they have been acting unconstitutionally all along. For these state laws, see Bush , slip opinion at 3 n.2 (Stevens, J., dissenting). See also Brief of Respondents, Bush v. Gore , at 36 (noting that before voting machines were invented, the “intent of the voter” standard was universally employed). 24 See Brief of Respondent, Bush v. Gore , at 44-45 (noting the prevalence of the “intent of the voter” standard and list- ing numerous judicial decisions applying it). It is worth pointing out that had the Florida Supreme Court prescribed a more specific formula for ascertaining the “intent of the voter,” the conservative Justices probably would have ruled that the state court was changing state law and thus violating Article II. See Bush v. Gore , slip opinion at 7 (refusing to decide whether the state supreme court had authority under state statute to prescribe a more specific standard for manually counting votes); see also Gore v. Harris, 2000 WL 1867628 (Fla. 2000) (per curiam) (noting that a more expansive defini- tion “would have raised an issue as to whether this Court would be substantially rewriting the Code after the election”).