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  20 thing to say that the Florida legislature would have wished, all things being equal, to take advantage of the federal safe harbor provision. It is another thing entirely to say that the legislature would have wan- ted the availability of the safe harbor provision to trump any and all competing considerations, such as ensuring that every vote be coun- ted. 50 The outcome of the 2000 presidential election quite possibly turned on this aspect of the Bush decision–a rationale that is, to put it bluntly, a complete fabrication. A separate concurring opinion joined by the Court’s three most conservative members (Chief Justice Rehnquist, and Justices Scalia and Thomas)–an opinion that commentators plausibly have suggested was originally designed as the majority opinion 51 –emphasizes a different rationale for reversing the Florida Supreme Court and terminating the manual recount. 52 According to these Justices, Article II of the Consti- tution, which provides that state legislatures shall determine the manner of selecting presidential electors, forbids any state court interpretation of state election law that would represent a departure from the legis- lative design. Chief Justice Rehnquist identifies several ways in which (he says) the Florida Supreme Court’s decision ordering a state-wide manual recount impermissibly distorts state election law. 53 The concurring opinion charts new territory, since this pro- vision in Article II has generated only one prior Supreme Court interpretation–and that decision was not directly relevant to Bush . 54 To say that the concurring opinion adopts a novel construction of Article II is, again, not necessarily to suggest that there is anything wrong with that interpretation. The relevant question is whether the interpretation (and its application) is persuasive, not whether it is novel. It is also relevant whether the interpretive principles em- ployed in that construction are reconcilable with the general jurispru- dential commitments of the Justices who endorsed it. On neither of these scores does the concurring opinion pass muster. a ‘drop-dead’ date under Florida law.”). 50 See Bush , slip opinion at 5-6 (Breyer, J. dissenting). 51 See, e.g., David G. Savage & Henry Weinstein, “‘Right to Vote’ Led Justices to 5-4 Ruling,” Los Angeles Times, Dec. 14, 2000, A1. 52 Bush , slip opinion at 2. 53 See infra text accompanying notes __. 54 See McPherson v. Blacker, 146 U.S. 1 (1892).