Albert GORE, Jr., and Joseph I. Lieberman, Appellants, v. Katherine HARRIS, as Secretary, etc., et al., Appellees, 773 So. 2d 524

PER CURIAM. This case is before the Court on remand from the United States Supreme Court. See Bush v. Gore, — U.S.-, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000). In our previous opinion, we ordered the Circuit Court of Leon County to tabulate by hand 9000 contested Dade County ballots. See Gore v. Harris, 112 So.2d 1243, 1262 (Fla.2000). This Court further held that relief would require manual recounts in all Florida counties where undervotes existed which had not previously been subject to manual tabulation. See id. at 1253, 1261-1262.

The standard we directed be employed in the manual recount was the standard established by the Legislature in the Florida Election Code, i.e., that a vote shall be counted as a “legal” vote if there is a “clear indication of the intent of the voter.” See id. at 1262 (citing

section 101.5614(5), Florida Statutes (2000)). The “intent of the voter” standard adopted by the Legislature was the standard in place as of November 7, 2000, and a more expansive ruling would have raised an issue as to whether this Court would be substantially rewriting the Code after the election, in violation of

article II,

section 1, clause 2 of the United States Constitution and 3 U.S.C. § 5 (1994). The per curiam opinion of the Supreme Court held that the Florida statutory standard for the manual examination of ballots violates equal protection rights. See Bush, 121 S.Ct. at 530. Although the Supreme Court found the legislatively prescribed standard to be unobjectionable as an abstract proposition and starting principle, it noted “[t]he problem inheres in the absence of specific standards to ensure its equal application.” Id.

The Supreme Court specified that in order for a manual recount to continue: It would require not only the adoption (after opportunity for argument) of adequate statewide standards for determining what is a legal vote, and practicable procedures to implement them, but also orderly judicial review of any disputed matters that might arise. In addition, the Secretary of State has advised that the recount of only a portion of the ballots requires that the vote tabulation equipment be used to screen out under-votes, a function for which the machines were not designed.

If a recount of over-votes were also required, perhaps even a second screening would be necessary. Use of equipment for this purpose, and any new software developed for it, would have to be evaluated for accuracy by the Secretary of State, as required by Fla. Stat. § 101.015 (2000). Id. at 532-33. ■ The Supreme Court ultimately mandated that any manual recount be concluded by December 12, 2000, as provided in 3 U.S.C. § 5. See id. at 533. In light of the time of the release of the Supreme Court opinion, these tasks and this deadline could not possibly be met.

Moreover, upon reflection, we conclude that the development of a specific, uniform standard necessary to ensure equal application and to secure the fundamental right to vote throughout the State of Florida should be left to the body we believe best equipped to study and address it, the Legislature. Accordingly, pursuant to the direction of the United States Supreme Court, we hold appellants can be afforded no relief. It is so ordered. SHAW, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ„ concur. WELLS, C.J., concurs in result only with an opinion. SHAW, J., concurs with an opinion. HARDING, J., concurs in result only.

PARIENTE, J., concurs with an opinion. . This opinion follows our dismissal of this cause by order of December 14, 2000.