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

33  R. EMERJ, Rio de Janeiro, v. 20, n. 2, p. 8 - 53, Maio/Agosto 2018  statute on its side, but also the plain tenor of Florida election law precedent. While the specific statutory intepretation questions raised by the election contest were not resolved by prior precedent, the one clear principle to be derived from Florida election cases is that safeguarding the right to vote and ascertaining the will of the voter trump more technical questions of compliance with legal formality. Numerous Florida court decisions have embraced this proposition. 114 In light of this background interpretive principle, plainly established by Florida precedent, the Florida Supreme Court’s ruling that presi- dential undervotes must be examined to ascertain, wherever possi- ble, the actual intent of the voters was entirely unexceptionable. The barrage of criticism leveled by Republican politicos against manual recounts–which was slyly endorsed by the concurring opinion 115 –was in fact a lawless refusal to abide by either explicit statutory language authorizing such recounts 116 or by abundant Florida precedent endor- sing the principle that ascertaining the actual intent of voters was the paramount objective of courts adjudicating election controversies. 117 Reasonable people certainly can disagree where to draw the line between a merely mistaken interpretation and a manifestly unre- asonable one. Moreover, degrees of unreasonableness are notoriou- sly difficult to quantify or otherwise measure objectively. Perhaps, in light of these considerations, it was inevitable that Republican Justi- ces, like so many Republican politicians and voters, would conclude that the Florida Supreme Court was “stealing” the election from Geor- ge W. Bush, 118 and thus that its statutory interpretations were entitled 114 See, e.g., Krivanek v. Take Back Tampa Political Comm., 625 So. 2d 840, 845 (Fla. 1993) (“election laws should gener- ally be liberally construed in favor of an elector”); State ex rel. Chappell v. Martinez, 536 So. 2d 1007, 1009 (Fla. 1988) (noting that ‘the object of holding an election” is “the electorate’s effecting its will through its balloting, not the hyper- technical compliance with statutes”); Boardman v. Esteva, 323 So. 2d 259, 263, 269 (Fla. 1975) (noting that “the right of a citizen to vote” is more important than “unyielding adherence to statutory scripture” and “that the primary consideration in an election contest is whether the will of the people has been effected”); State ex rel. Carpenter v. Barber, 198 So. 49, 51 (Fla. 1940) (“It is the intention of the law to obtain an honest expression of the will or desire of the voter.”). 115 Bush , slip opinion at 11 (concurring opinion) (noting that the manual recount of undervotes was “a search for elu- sive–perhaps delusive–certainty”). 116 Fla. Stat. §102.166 (4)(c); §101.166(5). 117 See supra note __. 118 See, e.g., David Tell, “The Bush Victory,” Weekly Standard , Dec. 25, 2000, p. 9 (criticizing the Florida Supreme Court decision as “ridiculous” and “ghastly”); Nelson Lund, “An Act of Courage,” Weekly Standard , Dec. 25, 2000, at 19 (accus- ing the Florida Supreme Court of “violat[ing] the Constitution” and blaming it for forcing the Supreme Court to inter- vene); Robert F. Nagel, “From U.S. v. Nixon to Bush v. Gore,” Weekly Standard , Dec. 25, 2000, at 20 (calling the Florida Supreme Court decision “stunning” and a product of “intellectual anarchy”); Michael S. Greve, “The Real Division in the Court,” Weekly Standard , Dec. 25, 2000, at 28 (noting some doubt whether “repeated judicial attempts to stack the deck in a presidential election do not compare to the moral scandal of Jim Crow”); Kristol & Bell, supra note __ (arguing that the