148
Breyer, J., dissenting
review proper, the conclusion that the Florida Supreme Court's decision contravenes federal law is untenable.
While conceding that, in most cases, "comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law," the concurrence relies on some combination of Art. II, § 1, and 3 U. S. C. § 5 to justify its conclusion that this case is one of the few in which we may lay that fundamental principle aside. Ante, at 112 (opinion of Rehnquist, C. J.). The concurrence's primary foundation for this conclusion rests on an appeal to plain text: Art. II, § 1's grant of the power to appoint Presidential electors to the state "Legislature." Ibid. But neither the text of Article II itself nor the only case the concurrence cites that interprets Article II, McPherson v. Blacker, 146 U. S. 1 (1892), leads to the conclusion that Article II grants unlimited power to the legislature, devoid of any state constitutional limitations, to select the manner of appointing electors. See id., at 41 (specifically referring to state constitutional provision in upholding state law regarding selection of electors). Nor, as Justice Stevens points out, have we interpreted the federal constitutional provision most analogous to Art. II, § 1— Art. I, § 4—in the strained manner put forth in the concurrence. Ante, at 123, and n. 1 (dissenting opinion).
The concurrence's treatment of § 5 as "inform[ing]" its interpretation of Article II, § 1, cl. 2, ante, at 113 (opinion of Rehnquist, C. J.), is no more convincing. The Chief Justice contends that our opinion in Bush v. Palm Beach County Canvassing Bd., ante, p. 70 (per curiam) (Bush I), in which we stated that "a legislative wish to take advantage of [§ 5] would counsel against" a construction of Florida law that Congress might deem to be a change in law, ante, at 78, now means that this Court "must ensure that postelection state-court actions do not frustrate the legislative desire to attain the 'safe harbor' provided by § 5." Ante, at 113. However, § 5 is part of the rules that govern Congress' recognition of slates of electors. Nowhere in Bush I did we
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