Joan Biskupic and Derek Muller have covered the most important news I saw in Justice Stevens’ Bush v. Gore files: that the Article II (independent state legislature theory) emanated from Justice O’Connor, not Chief Justice Rehnquist, and that Justice O’Connor inexplicably abandoned the argument. As I saw in Justice Stevens’ notes, the Article II argument was originally in the per curiam opinion, but the Chief Justice stripped it out when Justice Kennedy said he would not join.

But I did also come across this draft per curiam order in Justice Stevens’ file, which indicates that someone (I think Justice Stevens, because of the handwritten correction) wrote up a proposed order that would have at least kept open the possibility of a recount of Bush and Gore ballots under a uniform standard set by the Florida Supreme Court to be done within six days of the order.

Note the reference at the end of the proposed order to uncertainty as to “whether there is time” to resolve claims about uniform standards “before December 18, 2000,” and with instructions to the Florida Supreme Court “either to terminate the recount or to enter an appropriate order providing assurance that like ballots will be given like treatment.”

I don’t know from my quick review of the file if this was circulated to any other Justices, but I did not see any such indication in the file.