1 IN THE SUPREME COURT OF THE UNITED STATES 2 - - - - - - - - - - - - - - - x 3 GEORGE W. BUSH, : 4 Petitioner, : 5 v. : No. 00-836 6 PALM BEACH COUNTY : 7 CANVASSING BOARD, : 8 Respondent. : 9 - - - - - - - - - - - - - - - x 10 Washington, D.C. 11 Friday, December 1, 2000 12 The above-entitled matter came on for oral 13 argument before the Supreme Court of the United States at 14 10:00 a.m. 15 APPEARANCES: 16 THEODORE B. OLSON, ESQ., Washington, D.C.; on behalf 17 of the Petitioner. 18 JOSEPH P. KLOCK, JR., ESQ., Miami, Florida; on behalf 19 of Respondents Katherine Harris, et al., in 20 support of Petitioner. 21 PAUL F. HANCOCK, ESQ., Tallahassee, Florida; on 22 behalf of Respondent Robert A. Butterworth. 23 LAURENCE H. TRIBE, ESQ., Cambridge, Massachusetts; on 24 behalf of Respondents Al Gore, Jr. and Florida 25 Democratic Party. 1 1 C O N T E N T S 2 ORAL ARGUMENT OF PAGE 3 THEODORE B. OLSON, ESQ. 4 On behalf of the Petitioner 3 5 ORAL ARGUMENT OF 6 JOSEPH P. KLOCK, JR., ESQ. 7 On behalf of the Respondent 8 Katherine Harris, et al., in 9 support of Petitioner 27 10 ORAL ARGUMENT OF 11 PAUL F. HANCOCK, ESQ. 12 On behalf of the Respondent 13 Robert A. Butterworth 35 14 ORAL ARGUMENT OF 15 LAURENCE H. TRIBE, ESQ. 16 On behalf of the Respondents 17 Al Gore, Jr., and Florida 18 Democratic Party 44 19 REBUTTAL ARGUMENT OF 20 THEODORE B. OLSON, ESQ. 21 On behalf of the Petitioner 72 22 23 24 25 2 1 P R O C E E D I N G S 2 [10:00 a.m.] 3 CHIEF JUSTICE REHNQUIST: We'll hear argument 4 this morning in number 00-836, George W. Bush vs. The Palm 5 Beach County Canvassing Board. Mr. Olson. 6 ORAL ARGUMENT OF THEODORE B. OLSON 7 ON BEHALF OF PETITIONER 8 MR. OLSON: And may it please the Court: Two 9 weeks after the November 7 presidential election, the 10 Florida Supreme Court overturned and materially rewrote 11 portions of the carefully formulated set of laws enacted 12 by Florida's legislature to govern the conduct of that 13 election and the determination of controversies with 14 respect to who prevailed on November 7th. These laws have 15 been formulated by the Florida legislature pursuant to an 16 express delegation of authority, to wit, by the United 17 States Constitution. The election code that the Florida 18 legislature developed conformed to Title 3, Section 5 of 19 the United States Code. That provision invites states to 20 devise rules in advance of an election, to govern the 21 counting of votes and the settling of election 22 controversy. 23 QUESTION: Well, Mr. Olson, isn't Section 5 sort 24 of a safe harbor provision for states, and do you think 25 that it gives some independent right of a candidate to 3 1 overturn a Florida decision based on that section? 2 MR. OLSON: We do, Justice O'Connor. It is a 3 safe harbor, but it's more than that. And Section 5 of 4 Title 3 needs to be construed in connection with the 5 history that brought it forth -- 6 QUESTION: Yes. But I would have thought it was 7 a section designed in the case of, some election contest 8 ends up before the Congress, a factor that the Congress 9 can look at in resolving such a dispute. I just don't 10 quite understand how it would be independently 11 enforceable. 12 MR. OLSON: That's why I've mentioned the 13 context in which that section was adopted. In light of 14 the extreme controversy that was faced by this country as 15 a result of the 1876 election, and as this Court knows, 16 that election was very close and led to controversy, 17 contest, discord, Congress was very much concerned about 18 the possibility of that happening again, and one of the 19 reasons -- 20 QUESTION: Yeah, but what they did was, and it's 21 typical of grant-in-aid programs, they said if you run a 22 clean shop down there, we'll give you a bonus, and if you 23 don't, well, you take your chances with everybody else. 24 MR. OLSON: Justice Kennedy, I submit that it is 25 much like a compact that Congress is offering in the form 4 1 of Section 5, yes. If you do these things, certain things 2 will happen. But among these things, what Congress wanted 3 to accomplish with Section 5 was not only to provide the 4 benefit to the states, but to provide the benefit to the 5 United States of the states accepting that implicit 6 proposal. 7 QUESTION: But what is there in the opinion of 8 the Supreme Court of Florida that indicates that it relied 9 on this Federal statute in the reasoning for its decision 10 and in its judgment? 11 MR. OLSON: Well, I think the fact is that it 12 did not. What it did was it disregarded the compact. 13 When the state adopted a code of ethics, or a code of 14 election procedures to govern the election and the 15 determination of disputes pursuant to the election, it 16 brought itself into that safe harbor and guaranteed to the 17 voters and the candidates in that state that the 18 controversy and turmoil that infected this country after 19 the 1876 -- 20 QUESTION: Well, we are looking for a Federal 21 issue, and I thought that you might have argued that the 22 Secretary of State was instructed by the Supreme Court not 23 to jeopardize the state's chances and then cited 3 U.S.C. 24 Sections 1 through 10. And so if the, if the state 25 supreme court relied on a Federal issue or a Federal 5 1 background principle and got it wrong, then you can be 2 here. 3 MR. OLSON: Well, I certainly agree that it 4 mentioned those provisions. I'm simply saying that it 5 blew past the important provisions of Section 5 and the 6 benefits that Section 5 gives to the states to the voters 7 in that state and to the people running for office in that 8 state. That is to say that if the rules are complied 9 with, if disputes are resolved according to the rules that 10 are set forth, then not only will the electors chosen by 11 the voters in that state be given conclusive effect at the 12 time they are counted by Congress but we will not have the 13 controversy, dispute and chaos that's been taking place in 14 Florida. 15 QUESTION: Mr. Olson, suppose a less, a less 16 controversial Federal benefit scheme, let's say the scheme 17 that says states can get highway funds if, if they hold 18 their highway speeds to a certain level, all right? And 19 suppose you have a state supreme court that in your view 20 unreasonably interprets a state statute as not holding 21 highway speed to the level required in order to get the 22 benefit of that safe harbor. Would you think that that 23 raises a Federal question and that you could appeal the 24 state court decision here because it deprived the state of 25 the benefit of the highway funds? 6 1 MR. OLSON: No, I don't think so. 2 QUESTION: Why is this any different? 3 MR. OLSON: This is a great deal different 4 because this is -- first of all, Article II of the 5 Constitution which vests authority to establish the rules 6 exclusively in the legislatures of the state, tie in with 7 Section 5. Secondly, as this Court has stated -- 8 QUESTION: Well, let's just talk about Section 9 5. I mean, the constitutional question's another one. 10 Why is Section 5 in that regard any different from the 11 highway funding? 12 MR. OLSON: I think it -- I think it can't be 13 divorced from Article II of the Constitution because it's 14 a part of a plan for the vesting in the legislatures of a 15 state, and Section 5 implements Article II in the sense 16 that it provides a benefit not just to the state but to 17 the voters. 18 QUESTION: But just talk about the statutory 19 issue. I assume that if we worked long enough with 20 Justice Scalia's hypothetical, we could find a case where 21 a court adjudicated with reference to the Federal 22 principle and got the Federal principle wrong. Did -- 23 Indiana vs. Brand and that kind of thing. Did that happen 24 here? 25 MR. OLSON: Well, I think that the state did not 7 1 pay, the state supreme court did not pay much attention to 2 the Federal statute. It was obviously aware of it. It 3 did get the Federal principle -- 4 QUESTION: Well, then there is no Federal 5 constitutional issue here. 6 MR. OLSON: Well, there is a Federal-- 7 QUESTION: Pardon me, statutory issue. 8 MR. OLSON: Well, we believe that there is, 9 Justice Kennedy, because although the state recognized it, 10 it blew right past it. The state legislature adopted the 11 code that the Section 5 of Article 3 of Title 3 invited it 12 to do. The state supreme court, which had no right under 13 the Constitution, but I can't divorce the constitutional 14 provision from Section 5, then overturned the plan that 15 the state enacted through its legislature to make sure 16 that what happened down in Florida was not going to 17 happen. And so what the state supreme court did, knowing 18 full well that these provisions existed, overturned the 19 carefully enacted plan by Florida. 20 QUESTION: Mr. Olson, do you think that Congress 21 when it passed 3 U.S. Code, intended that there would be 22 any judicial involvement? I mean, it seems to me it can 23 just as easily be read as a direction to Congress, saying 24 what we are going to do when these electoral votes are 25 presented to us for counting. 8 1 MR. OLSON: I think that it was intend -- 2 directed to Congress, but it seems to me that in the 3 context in which it was adopted and the promise that it 4 afforded, that the conclusive effect would be given to the 5 state selection of electors, that is a somewhat empty 6 remedy and it doesn't accomplish Congress' objectives if 7 it cannot be enforced when an agency of the state 8 government steps in as the Florida Supreme Court did here 9 and overturn the plan by which the Florida legislature 10 carefully set forth a program so that disputes could be 11 resolved, and we wouldn't have the controversy, conflict 12 and chaos that we submit exists today in Florida. 13 QUESTION: Mr. Olson, your -- your submission is 14 based on the premise that the Florida court overturned 15 something that the statute did not. Is it not arguable, at 16 least, that all they did was fill gaps that had not been 17 addressed before? 18 MR. OLSON: Justice Stevens, I don't think that 19 in this case that's even remotely arguable. What the state 20 supreme court did is take a set of timetables, a set of 21 provisions that -- 22 QUESTION: Yes. And the first one was the 23 mandatory -- is it your view still that the shall date 24 controls in all respects? 25 MR. OLSON: No. Not necessarily. But the 102 9 1 -- there is the two provisions, Section 102.111 and 2 102.112. 111 contains the shall date, 102 contains the 3 may date. 4 QUESTION: Correct. 5 MR. OLSON: Both of those statutes, both of 6 those provisions say that the returns must be, or shall be 7 filed by a certain deadline. The shall and the may 8 provisions simply relate to the possible remedy. We 9 submit that under either interpretation the Secretary of 10 State of Florida either must or shall ignore those 11 returns, or may set those aside in her discretion. 12 QUESTION: Does that mean if there were an act 13 of God that prevented the returns from being filed that 14 she would have discretion either to accept or reject the 15 returns? 16 MR. OLSON: Yes, I believe -- 17 QUESTION: She would have the discretion? 18 MR. OLSON: Yes. 19 QUESTION: Would she be compelled in that event 20 to accept the returns? 21 MR. OLSON: I don't think so. She took the 22 position -- 23 QUESTION: She has the total discretion either 24 to accept or reject? 25 MR. OLSON: That's -- 10 1 QUESTION: Is there any circumstance in which 2 she would be compelled to accept a late return? 3 MR. OLSON: I don't know of any. I haven't 4 thought of any, Justice Stevens. 5 QUESTION: Well, you are arguing in effect that 6 it's a mandatory deadline. I wonder if you really mean 7 it's mandatory. 8 MR. OLSON: Well, the problem is that it's -- 9 what we are saying is that either it's mandatory, in which 10 case she could not accept them. 11 QUESTION: But you don't know whether it's 12 mandatory or not? 13 MR. OLSON: Well, the Florida Supreme Court and 14 what the circuit court did in that case, it said that it 15 wasn't -- and we'll accept this for purposes of this 16 argument that it wasn't -- 17 QUESTION: Yes, but one of the things that's of 18 interest to me is the extent to which you say there was a 19 change in the law. It seems to me that in order to answer 20 that question you have to know what your view of the law 21 was before this all happened. 22 MR. OLSON: I think that we can answer that this 23 way, is that whether it was shall ignore or may ignore. 24 It was not must accept. 25 QUESTION: Under any circumstance it was not 11 1 must? 2 MR. OLSON: No, under no circumstances was it 3 must accept. Now -- 4 QUESTION: Even in an act of God or fraud? 5 MR. OLSON: I don't believe so, Justice Stevens. 6 QUESTION: Okay. 7 QUESTION: Mr. -- 8 QUESTION: Isn't the law in Florida like as in 9 most states, and in the Federal government, that when an 10 official has discretion, may accept or may not accept, 11 that has to be exercised within the limits of reason? 12 MR. OLSON: Yes. 13 QUESTION: Well, then, isn't it possible that 14 when the court says she must accept under certain 15 circumstances, what they mean is outside those 16 circumstances, given the circumstances here it would be 17 unreasonable to refuse? 18 MR. OLSON: Well, what the court did was so 19 constrain those circumstances, virtually to make them 20 nonexistent. 21 QUESTION: All right. So then what you're 22 arguing about is a determination by the state court of 23 Florida as to what the circumstances are under state law 24 where the action of a state official would or would not be 25 reasonable. 12 1 MR. OLSON: I think that -- yes, but I think 2 that it has to be looked at in the context in which that 3 was done when the state supreme court so constrained and 4 says in its opinion shall accept these late returns until 5 5 p.m. on November 26th, and in the context there was no 6 discretion left for the Secretary of State at all. 7 QUESTION: Mr. Olson, may I ask you, because 8 you've been skipping over what I thought was a key piece 9 of the Florida legislation. The Florida Supreme Court 10 said, there's the deadline, and that conflicts with 11 another provision of this law, the provision that says 12 there shall be under certain circumstances recounts, and 13 then there's a rather detailed description of the process 14 that's necessary, the time line for when you can ask the 15 recount is on the 6th day. 16 MR. OLSON: Up to. 17 QUESTION: Yeah, up to. And it would be 18 impossible in a populous county to in one day do what the 19 statute instructs must be done when there's a recount. 20 The Florida Supreme Court said, it's right in its opinion, 21 there's two conflicts, and the first one they mention 22 straight out on page 21A of your appendix, is that there 23 has to be a reconciliation between this, yes, there can be 24 recounts and, yes, there's a deadline. So they are trying 25 to reconcile two provisions. 13 1 MR. OLSON: The first part of the recount 2 provision to which you're referring, Justice Ginsburg, 3 says may conduct a recount. Under certain circumstances 4 after the sampling part of that process is taken, if it's 5 taken in the county canvassing board's discretion, then 6 under certain circumstances it's supposed to go forward 7 with a more fulsome process, but the legislature being 8 fully aware of the recount provisions and the importance 9 of -- this ties in with the protest period for the 10 election, which overlaps the recount provisions, and the 11 contest provision for the election, and the fact that all 12 of this has to be done in the context of a presidential 13 election. 14 Under any other kind of election, these things 15 wouldn't be nearly as important, but we have very 16 important timetables, and as this Court has said a 17 presidential election is so important to the rest of the 18 nation, and there is such high Federal interest in 19 accomplishing these things in the right way, what the 20 Florida legislature did is balance the protest period, the 21 recount period with the contest period, and state that 22 there shall be certain deadlines before which certain 23 things need to be done and after which, so what those two 24 statutes say is that there may be a recount, but that 25 there shall be compliance with the time deadline. It also 14 1 says that -- 2 QUESTION: But that's something that one can 3 certainly argue. My problem is, one could also argue what 4 the Florida Supreme Court said, and I do not know of any 5 case where we have impugned a state supreme court the way 6 you are doing in this case. I mean, in case after case we 7 have said we owe the highest respect to what the state 8 says, state supreme court says, is the state's law. 9 MR. OLSON: This is a very unusual situation, 10 Justice Ginsburg, because it is in the context of a 11 presidential election, and it is in the context of Federal 12 rights. This Court has, in the areas in which we've 13 described in our brief, undertaken to review the meaning 14 and the effect that the state supreme court or state court 15 decision under certain circumstances. We submit this is 16 one. What the Florida Supreme -- 17 QUESTION: But I said, and even in the very 18 cases that you cite, because I checked them, that we owe 19 the highest respect to the state court when it says what 20 the state law is. 21 MR. OLSON: Yes, but then the Court has also 22 said, then we go on to see the extent to which what the 23 state court did, as we cited in the Lindsey case, for 24 example, in the ex post facto context, we go on to see 25 what the import of that is in connection with the Federal 15 1 right. I would emphasize that what the Florida Supreme 2 Court did is basically essentially say, we're rewriting 3 the statute, we're changing it. 4 QUESTION: Does the Secretary have any 5 flexibility to accommodate the statute to the exigencies 6 was presidential election? The Secretary of State. 7 MR. OLSON: The Secretary of State did. It 8 doesn't -- she doesn't much anymore because what has 9 happened -- and I would like to finish that one point, 10 that the Florida Supreme Court said we are not going to be 11 bound by technical statutory requirements or what the 12 supreme court called hyper-technical statutory 13 requirements. Instead, we are going to resort to the will 14 of the people, the will of the electorate, the will of the 15 voters, so to speak, and we are going to -- because we 16 can't rewrite the statute, but we are going to partially 17 rewrite the statute, we are going to resort to our 18 equitable powers. So what -- and among the things that 19 the court did, and there are a range of them, as I have 20 indicated, they took away the discretion of the Secretary 21 and instructed her to accept these manual recount returns. 22 QUESTION: Mr. Olson, on the equitable powers, 23 they were doing that in setting a new deadline, and I 24 don't think you would argue the case would have been more 25 acceptable if there had been no deadline? 16 1 MR. OLSON: No, it wouldn't have been, but -- 2 QUESTION: And on the fight between may and 3 shall, they relied on four traditional canons of statutory 4 construction and not equity at all. 5 MR. OLSON: They recited four canons of 6 statutory construction, Justice Stevens, but when they 7 said they use those construction -- canons of statutory 8 construction to say that the words may and shall mean 9 shall not, that is not a reasonable exercise of statutory 10 construction. I think what the -- it's relatively obvious 11 that what the supreme court did is exactly what Article -- 12 Section 5 of Article III intends not to happen. Change 13 the rules. 14 QUESTION: I don't read their opinion that way, 15 Mr. Olson. It seems to me that the portion of their 16 opinion dealing with statutory construction ends with a 17 conclusion that the Secretary has discretion. The portion 18 of the opinion employing the canons of construction does 19 not place any limits upon the Secretary's discretion. 20 MR. OLSON: Well, yes, I agree with that up to a 21 point, but then it says that she must accept these returns 22 that are after the deadline. 23 QUESTION: That was not on the basis of any 24 canons of statutory construction. That was on the basis 25 of the state's constitution. 17 1 MR. OLSON: That's right, but -- so there was 2 both going on, and what the court was bound and determined 3 to do was to get to a consequence that the court 4 determined was consistent with the will of the people, 5 irrespective of what the statute -- 6 QUESTION: Mr. Olson, would you agree that when 7 we read a state court decision, we should read it in the 8 light most favorable to the integrity of the state supreme 9 court, that if there are two possible readings, one that 10 would impute to that court injudicial behavior, lack of 11 integrity, indeed dishonesty, and the other one that would 12 read the opinion to say we think this court is attempting 13 to construe the state law -- it may have been wrong, we 14 might have interpreted it differently, but we are not the 15 arbiters, they are. 16 MR. OLSON: I would like to answer that in two 17 ways. In the first place, I don't mean to suggest, and I 18 hope my words didn't, that there was a lack of integrity 19 or any dishonesty by the Florida Supreme Court. What 20 we're saying, that it was acting far outside the scope of 21 its authority in connection with an exercise of power that 22 is vested by the Constitution of the United States -- 23 QUESTION: But if it tells us -- if it tells us, 24 we see these two provisions in conflict, they need to be 25 reconciled. 18 1 MR. OLSON: But -- under almost any other 2 circumstances, yes, Justice Ginsburg, but in this context, 3 in this context, we are talking about a Federal right, a 4 Federal constitutional right, and the rights of individual 5 citizens under the Constitution and so therefore, this 6 Court has a grave responsibility to look -- 7 QUESTION: Mr. Olson, I'd like to get focused a 8 little more on this same area. If it were purely a matter 9 of state law, I suppose we normally would leave it alone 10 where the state supreme court found it, and so you 11 probably have to persuade us there is some issue of 12 Federal law here. Otherwise, why are we acting? 13 MR. OLSON: Yes. 14 QUESTION: And are you relying in that regard on 15 Title 2? I mean, would you like to -- Article II? Would 16 you like to characterize the Federal issue that you think 17 governs this? 18 MR. OLSON: Well, we are very definitely relying 19 on Article II of the Constitution. The framers of the 20 Constitution debated long and hard. It was one of the 21 longest debates that took place during the formation of 22 the Constitution. Where should this power be lodged, in 23 the Federal legislature, in the state legislature, at the 24 ballot booth or what. The one thing that was discussed 25 and rejected by virtually everyone is that the power to 19 1 select the manner in which electors would be appointed 2 would be in the state judiciary, and we quote -- in the 3 state judiciary. That was rejected. 4 The notion that it would be vested in the state 5 judiciary was something that was rejected, and what the 6 framers decided to do is to vest it in the state 7 legislature and vested that authority under Article II, 8 not just in the state, but the legislature. 9 QUESTION: And the state legislature could vest 10 it in the judiciary if it wanted, as I read the McPherson 11 case, and here they have done something less. The state 12 judiciary said, we are going to invoke the ordinary 13 election procedures, which you know, warts and all, it 14 involves some interpretation by the courts and contest 15 proceedings, et cetera. 16 MR. OLSON: Well, it is -- yes, it said that, 17 Justice Kennedy. But what it did was supplant a set of 18 rules elect -- enacted before the election to govern the 19 election, for a set of rules made up after the election. 20 QUESTION: All right. Mr. Olson, let's assume 21 that it did that, for the sake of argument. I want to go 22 back to the issue that the Chief Justice raised a little 23 while ago, and I'd like you to comment on this line of 24 reasoning. You've got Section 5. Congress in the statute 25 seems to have gone to great lengths to provide what to do 20 1 in the situation that you are describing, accepting your 2 view of the case. 3 Section 5, it says if you do certain things 4 within certain times, the conclusion that you draw is 5 going to be conclusive upon the Congress. In Section 15, 6 it sets out in fact an elaborate set of contingencies 7 about what the Congress is supposed to do and can do if 8 there is a dispute as to whether a given set of procedures 9 in the state have conformed to Section 5. Section 15 10 refers to regularity. It refers to legality and 11 illegality. It looks to me as though at least at this 12 stage of the proceedings, Congress has said if there is a 13 question about whether this if-then provision in Section 14 5, construing Article II, has been satisfied, then this is 15 the decisional tree for the Congress to follow in deciding 16 what to do about it and in resolving challenges. 17 It looks to me as though at this stage of the 18 game, the statute has committed the determination of the 19 issues that you raise and the consequences to follow from 20 them to the Congress. Why should the Court, why should 21 the Federal judiciary be interfering in what seems to be a 22 very carefully thought out scheme for determining what 23 happens if you are right? 24 MR. OLSON: Because I submit that that writes 25 Section 5 essentially out of existence if an agency of 21 1 state government, if a state legislature -- 2 QUESTION: No. It doesn't write it out of 3 existence. It provides in Section 15 what happens if the 4 state agency does what you say it did. 5 MR. OLSON: If the state agency, if the state 6 legislature empowered by Article II of the Constitution, 7 does what it is invited to do by Section 5, and then 8 another agency of state government, in this case the state 9 supreme court, comes along and upsets that scheme, yes, 10 you have ultimate resort to the resolution of the dispute 11 under Sections 15 of Title 3, but that's precisely -- 12 QUESTION: Well, you say you have ultimate 13 resort. But that begs the question, that seems to be 14 precisely the resort that Congress has provided. 15 MR. OLSON: Well, I'm not making myself clear, I 16 think, is that the importance of Section 5 was to invite 17 the state to do things that would avoid the chaos and the 18 conflict and the controversy and the unsettled situation 19 that this country faced in 1876, and -- 20 QUESTION: Mr. Olson, did Section 15 exist when 21 McPherson was decided? 22 MR. OLSON: I don't know, Justice Scalia. I 23 don't know the answer to that, when it was adopted. I 24 can't recall whether it was a part of the 1887 electoral 25 count statute or not. I can probably answer that in 22 1 regard -- 2 QUESTION: That would make a difference, 3 wouldn't it? 4 MR. OLSON: Well, it seems to me it wouldn't 5 make a difference, because of this. It might -- yes, it 6 certainly might make a difference one way, but it still 7 wouldn't make a difference because our concept here, and I 8 think it's quite a rational and actually the only 9 explanation for how you can put these provisions together, 10 Article II and Section 5, and Congress' desire to avoid 11 the very controversy, chaos, conflict, which even -- 12 QUESTION: Well, but Section 15 assumes that 13 there is controversy and chaos. 14 MR. OLSON: Yes. 15 QUESTION: Section 15 isn't providing for 16 challenges except in situations perhaps exactly like this 17 one. 18 MR. OLSON: But that's what the country -- what 19 essentially Section 15, although it modifies it and 20 structures it somewhat, it was still a situation that 21 Congress was facing in 1876 when it was dealing with the 22 Hayes-Tilden election. 23 QUESTION: Right. 24 MR. OLSON: And by the time it got there, there 25 were dueling slates of electors that were buying -- there 23 1 were exchanges and a lot of things that everyone felt was 2 very destructive to the country. 3 QUESTION: But Congress had to face the 4 constitutional fact that under Article II, it could not, 5 or its understanding was certainly, that it could not 6 mandate certain state procedures. Article II did say the 7 legislature shall decide what they are. 8 MR. OLSON: Correct. 9 QUESTION: So the most that Congress could do in 10 providing for a more orderly resolution of what happened 11 in Hayes-Tilden was to do what it did in Section 5, and 12 that is to say if you do certain things, you can depend 13 upon the results, recognizing that the state might not do 14 those things. And it then provided, or at least at the 15 present time it is provided in Article, in Section 15, 16 that if you don't do those things, there is a sequence of 17 issues that can be raised to be decided by the Congress. 18 If Congress wanted this Court to get into the 19 issue at this stage, it seems passing strange to me that 20 despite all the elaborateness of Section 15 there wouldn't 21 have been some mention of Federal litigation proceeding in 22 the Section 15 proceeding. 23 MR. OLSON: I think that's a very important 24 point, and let me make it: That Congress did say if you 25 do these things, certain consequences will flow from it. 24 1 Florida did these things, and we submit that there is, 2 that the courts are here to protect the benefit of the 3 bargain that Florida made when it responded to that 4 invitation, because -- 5 QUESTION: We have to separate your statutory 6 argument from your Constitutional argument. To the extent 7 that you are relying just on the Constitution, do you 8 think that Congress could by Section 15 exclude the courts 9 from adjudicating the constitutionality of what the state 10 has done? 11 MR. OLSON: No, I don't think so. 12 QUESTION: But it certainly could express its 13 preference for a scheme whereby the initial litigation, if 14 you will, at this level, would take place in the Congress. 15 To acknowledge that is not to say that the issue is 16 justiciable or that this Court has somehow been 17 necessarily excluded from the process for all time. It is 18 simply to say that the first line of litigation at the 19 Federal level seems under the statute to be Congress, and 20 not the Court. 21 QUESTION: Isn't that a fair reading of 15? 22 MR. OLSON: That's not a fair reading of Section 23 5, and let me answer this question, and I would like with 24 the Court's permission to reserve the time -- 25 QUESTION: Well, I don't think Section 5 goes to 25 1 the issue. The question is whether it's a fair reading of 2 Section 15. 3 MR. OLSON: I don't think that they can be read 4 in isolation. I think that Section 5 was designed to 5 avoid the problem created by the controversy and the 6 having to resolve this in Congress, which is exactly what 7 did happen in 1876, and was a very unsatisfactory 8 situation. 9 QUESTION: And in 1876, Congress did not have -- 10 QUESTION: 1877. 11 QUESTION: -- the rules with -- 12 QUESTION: 1877. 13 QUESTION: Congress did not have the rules with 14 respect to conclusiveness that it now has under Section 5. 15 MR. OLSON: That's right. And it put those 16 rules with respect to conclusiveness into Section 5. The 17 Florida legislature bought into that scheme and now the 18 Florida Supreme Court, which doesn't have any 19 Constitutional authority pursuant to Section 2 to do so, 20 upset that scheme, deprived Florida of the benefit of 21 doing exactly what Congress wanted to have happen under 22 Section 5. I would, with the Court's permission, reserve 23 the balance of my time. 24 QUESTION: Very well, Mr. Olson. Mr. Klock, 25 we'll hear from you. 26 1 ORAL ARGUMENT OF JOSEPH P. KLOCK, JR. 2 ON BEHALF OF THE RESPONDENTS KATHERINE HARRIS, 3 ET AL., IN SUPPORT OF PETITIONER 4 MR. KLOCK: Mr. Chief Justice, and may it please 5 the Court: 6 Our argument is simply addressed to issues 7 having to do with Florida law, and the point being raised 8 by the Secretary is this, that the law in the state of 9 Florida on November 7 was changed by the Supreme Court of 10 Florida's decision on November 21. The Secretary is not 11 contesting the right of the Florida Supreme Court to 12 change the law of Florida, is simply pointing, she is 13 simply pointing out, that the law did change. 14 QUESTION: Does the Secretary maintain that in 15 some instances she has a discretion that a court does not 16 or can a court do whatever she might do, under Florida 17 law? 18 MR. KLOCK: Under Florida law, she has certain 19 discretion that I think a court probably does not have in 20 the protest period, Justice Kennedy, and that would be 21 that she had the discretion to decide whether or not 22 returns could be permitted after that seventh day, and 23 indeed that's based on two things that we have in the 24 record. One is an opinion that was issued by the Division 25 of Elections that talks about the circumstances in which 27 1 the Secretary would exercise discretion, and the second is 2 the letter that the Secretary sent to the three or four 3 canvassing boards that requested an extension of time 4 after the 14th deadline had passed. 5 She sent the letter out, she said, please 6 indicate to me whether or not you intend to file returns 7 after the deadline, and if you do what the reasons are. 8 She collected a set of criteria, she applied the 9 criteria, and then sent a letter back, and what she did, 10 Justice Kennedy, in the case of the Division's letter, the 11 opinion which, of course, is binding under Florida law on 12 elections officials who receive them, she -- the Division 13 head said that there were certain circumstances such as 14 acts of God, hurricanes, and that kind of thing where the 15 discretion would be exercised. When she came up with her 16 additional reasons for considering whether or not she 17 would exercise her discretion, she indicated a number of 18 them which are also contained within the record. It's at 19 the Joint Appendix at 21, she indicated where there was a 20 result of voter fraud with a substantial -- 21 QUESTION: She said she would exercise her 22 discretion. Did she say she would have to exercise her 23 discretion in those conditions? 24 MR. KLOCK: I think she would have to exercise 25 her discretion. 28 1 QUESTION: The court did compel her to? 2 MR. KLOCK: Yes, sir. 3 QUESTION: Do you think that was clear before 4 the opinion of the supreme court in this case? 5 MR. KLOCK: Yes, sir. 6 QUESTION: Let me just ask one general question 7 for your comment on whether it's a change in the law. To 8 what extent, in your view, was the -- did the Supreme 9 Court of Florida consider itself bound by either prior 10 precedent or the constitution of the state which 11 preexisted? 12 MR. KLOCK: In terms of handing down its 13 decision? 14 QUESTION: In terms of the particular result it 15 reached in this case. 16 MR. KLOCK: I believe the Supreme Court of 17 Florida was looking at its law in terms of articulating 18 the law that it wanted to have then and on a going-forward 19 basis. What it did -- and obviously since it's the chief 20 court of the state, it has the right to do whatever it 21 wishes to do with respect to Florida law only bound by 22 whatever separation of powers -- 23 QUESTION: Do you think they thought their 24 decision was dictated either by prior precedent or by the 25 constitution of the state? 29 1 MR. KLOCK: Your Honor, I don't know whether 2 they thought that or not, but that's not what the opinion 3 says. As a matter of fact, the opinion is pretty clear, 4 they start out by talking about statutory construction, 5 and they hinge everything on the use of the word 6 interpret, and then they sort of turn the word interpret 7 to a use that it's not intended to be, but then when they 8 get to the point of designing the rule of law they're 9 going to go forward on, they don't talk about interpreting 10 the statute. They then go and base it on principles of 11 equity in the Florida Constitution, and indeed what they 12 end up with, Your Honor, is this statement with respect to 13 the discretion that the Secretary is left with, and that 14 is this -- and it's on 35 of the Joint Appendix. "We 15 conclude that consistent with Florida's election scheme, 16 the Secretary may reject a Board's," that's the canvassing 17 board's, "amended returns only if the returns are 18 submitted so late that their inclusion will preclude a 19 candidate from contesting certification or preclude 20 Florida voters from participating fully in the Federal 21 electoral process." 22 Now, Your Honor, there's -- 23 QUESTION: I understand your position is that 24 was entirely new? 25 MR. KLOCK: Yes, sir. 30 1 QUESTION: I'm just wondering, therefore your 2 submission is that it was not dictated by the constitution 3 or by prior precedent? 4 MR. KLOCK: No, Your Honor. 5 QUESTION: I thought you said a moment ago that 6 the court, the Florida court did rely on the Florida 7 Constitution. There's a section of their opinion that's 8 devoted to that. 9 MR. KLOCK: Your Honor, in devising the remedy, 10 they refer to the Florida Constitution, but the issue that 11 we're here on, as I understand it, sir, is whether or not 12 the law changed. There's no question that they have a 13 right to do what they did. The only -- 14 QUESTION: I think perhaps another statement of 15 the issue is to what extent did the Florida Supreme Court, 16 in construing this statute, rely on more general 17 provisions of the Florida Constitution which they cited in 18 their opinion? 19 MR. KLOCK: I think they did rely, in creating 20 the remedy on the Florida Constitution, I believe they 21 created a right that had not previously been seen there, 22 which they have a right to do, but, Mr. Chief Justice, the 23 issue again is whether or not the law that they 24 articulated on November 21 is different than the law that 25 existed on November 7, and how the Secretary of State, in 31 1 exercising her discretion, was to divine the standard that 2 would be established on November 21. 3 QUESTION: Your position is so long as it's 4 different, it violates Section 5 and therefore we have a 5 right to step in? 6 MR. KLOCK: Well, Justice Scalia, we have not 7 addressed the Federal issues because, I mean, we're in a 8 situation where you have -- 9 QUESTION: Well, this is a Federal court what 10 are you here for, if you're not addressing -- 11 MR. KLOCK: I understand that, sir. I 12 apologize. But we have the Secretary of State here, we 13 have the Attorney General here, and the legislature has 14 filed by amicus, and of course the state has not appeared, 15 so it's a little unusual. We haven't addressed those 16 issues, but to answer your question, yes, sir. 17 QUESTION: Can you tell me when this petition 18 was filed here, the Secretary had not certified anybody 19 the winner, and now the Secretary has certified a winner, 20 and therefore, I guess, whether we win, whether your side, 21 the side you're supporting wins or loses, it doesn't 22 change that, and I guess that's moot, but my question is, 23 is there any respect in which this really makes a 24 difference, this case? How? I'm thinking, if it does 25 make a difference, numbers of vote, is that kind of thing 32 1 right for us to decide now? How could it make a 2 difference? What's the consequence of our going one way 3 or the other now in this case? 4 MR. KLOCK: Your Honor, it makes an enormous 5 difference because the relief that has been requested 6 would be for the Court to determine that the law in effect 7 at the time of the election was that manual recounting of 8 ballots would not be permitted to address voter error, 9 which I think has been extensively -- 10 QUESTION: We don't have -- all -- suppose they 11 won and the relief was, suppose your side won, and the 12 relief was, fine, it should have been certified on 13 November 14th or 18th instead of November 26th. Now, 14 what's the consequence of that? Just that? Forgetting 15 what the reasoning is. Is there a consequence that flows 16 from that, that is real, adverse, you know, significant, 17 concrete that we can predict now as opposed to speculate? 18 MR. KLOCK: The only immediate result would be 19 that you would have a margin that instead of being 536 20 votes would be 900-some-odd votes, and it would only be 21 added to as a result of whatever was added by the overseas 22 ballots. 23 QUESTION: Fine. Then this case has said, we've 24 said a claim is not ripe if it rests upon contingent 25 future events that may not occur as anticipated or indeed 33 1 may not occur at all. And so what I wonder, is this in 2 this realm of speculation as to whether or not it will or 3 will not make a difference, a difference to the outcome of 4 the election. 5 MR. KLOCK: It will make a difference to the 6 outcome of the election because there is an ongoing 7 contest which is interrelated and is involved with the 8 Supreme Court's opinion, and of course because the Supreme 9 Court of Florida, in coming up with the remedy that they 10 came up with, completely changed the period of time from a 11 relatively short period of time, seven days for a protest 12 and much longer period for a contest, we now have a 13 situation where there is 19 days for the protest and 16 14 days for a contest. 15 QUESTION: Well, it's too late -- it's too late 16 to lengthen the time for the contest. I mean, to the 17 extent that they have shortened the contest time, you 18 know, that's water over the dam right now, isn't it? 19 MR. KLOCK: Yes, Justice Scalia, but the issue 20 here -- I'm sorry. 21 QUESTION: Is it not the case that if the votes 22 are, are as, as they have been shown to be under the 23 Florida Supreme Court's opinion, the race is much closer, 24 and therefore some counties under Florida law would 25 conduct recounts that otherwise would not conduct 34 1 recounts. Doesn't whether a recount is conducted depend 2 upon how likely it is that the recount is going to change 3 the outcome? 4 MR. KLOCK: Your Honor, if the law is returned 5 to the point it was on November 7, there is no right to a 6 manual recount to correct voter error, and that will end 7 the litigation that currently exists in the State of 8 Florida, which were the opinions of the Secretary of 9 State's Division of Elections that were issued and also 10 the state of the law as it existed at that point in time. 11 The record shows very clearly that there was no dispute 12 that there were any problems with voting machines or any 13 other tabulation problems with voting machines. It was 14 simply when they went through the process of what is, 15 Justice Ginsburg, a discretionary right to a manual 16 recount, not a mandatory one, when they went into that and 17 did the test, each of those canvassing boards did not find 18 any problem with a mechanical problem. It was simply a 19 problem in terms of voter error. 20 QUESTION: The secretary took the -- never mind. 21 Thank you. 22 QUESTION: Thank you, Mr. Klock. Mr. Hancock, 23 we'll hear from you. 24 ORAL ARGUMENT OF PAUL F. HANCOCK 25 ON BEHALF OF RESPONDENT ROBERT A. BUTTERWORTH 35 1 MR. HANCOCK: Mr. Chief Justice, and may it 2 please the Court: In accordance with Article II of the 3 United States Constitution, the Florida legislature has 4 directed the manner of selecting presidential electors in 5 Florida. That manner is pursuant to a popular vote that's 6 implemented pursuant to the general election laws of the 7 State of Florida. 8 QUESTION: I guess Article II permits the 9 legislature in general to make a choice that it could 10 itself select the electors? 11 MR. HANCOCK: Yes, Justice O'Connor. We agree 12 with that. In implementing the election law, each branch 13 of the Florida government plays a role. For example, the 14 judiciary, or the executive branch of our government has 15 not found itself bound by the technical, hypertechnical 16 requirements of the election law. An example of that is 17 that the, the executive branch has implemented a rule, not 18 a law, but a rule that allows absentee ballots from 19 overseas military voters to be received after the 10 days 20 after the close of the polls. Under the law of the State 21 of Florida, all absentee ballots have to be received by 22 the time the polls close on election day. 23 QUESTION: In your brief you say, you conclude 24 that the Florida Supreme Court like, I think it's page 12, 25 like any state court, exercised its inherent equitable 36 1 powers to remedy a threat to fundamental constitutional 2 rights, and it rewrote the certification deadlines 3 according to that power, did it not? 4 MR. HANCOCK: The only -- yes, Justice Kennedy. 5 The only equitable power exercised by the court was 6 setting the deadline. 7 QUESTION: Isn't that such an amorphous general 8 abstract standing that it can't possibly be said to be a 9 law that was enacted and in place at the time of the 10 election? 11 MR. HANCOCK: No. The laws were enacted well 12 before the election. What happened was that in the court 13 -- 14 QUESTION: Of course, the Constitution was there 15 before the election, the Due Process Clause is before the 16 election, but what we are talking about is having laws of 17 sufficient specificity and stability that people can rely 18 on them in advance and not have them changed after the 19 fact. And your brief makes it very clear that they 20 exercised their inequitable powers to remedy a threat to 21 fundamental constitutional rights and changed the deadline 22 accordingly. It seems to me that's no standard -- it's an 23 enviable standard, something we might all agree with in 24 the end, but as far as the requisite specificity to 25 satisfy 3 U.S.C. Section 5, I just don't see it as there. 37 1 MR. HANCOCK: The court had to do something, 2 Justice Kennedy. It was faced with conflicts in Florida 3 law. They had conflicting opinions from the Florida 4 Attorney General as to the meaning of the law and the 5 Secretary of State as to the meaning of the law. As a 6 result of -- 7 QUESTION: Maybe it had to do something, but did 8 it comply with 3 U.S.C. Section 5? 9 MR. HANCOCK: I submit, Justice Kennedy, that 3 10 U.S.C. Section 5 doesn't require the state to do anything, 11 it merely says -- 12 QUESTION: But did it comply with that part of 3 13 U.S.C. Section 5 that requires that laws be enacted and in 14 place prior to the election in order to get the safe 15 harbor? 16 MR. HANCOCK: Yes, it did. The laws were in 17 place before the election. And those laws granted to the 18 judiciary -- 19 QUESTION: Well, but certainly the date changed. 20 That is a dramatic change. The date for certification, 21 right? 22 MR. HANCOCK: Yes. 23 QUESTION: And it was done by the court. 24 MR. HANCOCK: Yes, it was done pursuant -- 25 QUESTION: And the legislature had very clearly 38 1 said, you know, seven days after, that's the date, and it 2 just does look like a very dramatic change made by the 3 Florida court, and I'm wondering if that is consistent in 4 fact with the notion, expressed at least in Section 5, so 5 that the result would be if it did go to Congress, it 6 would be a change. 7 MR. HANCOCK: The -- I agree that the date was 8 implemented pursuant to the court's equitable powers. 9 Other than that, it was a routine exercise in statutory 10 construction. The court was faced with a situation first 11 of all where because of conflicting advice the counties 12 had started and then stopped conducting manual recounts 13 because of advice from the secretary of the state which 14 the supreme court ultimately concluded to be erroneous. 15 QUESTION: Yes. And that advice was -- and this 16 was really the beginning of all of the problem, her advice 17 was that the provision providing for recounts, manual 18 recounts, not requiring them but giving them as one of the 19 options, only came into play when there was some defect in 20 the, in the machinery, and it was not available for voter 21 error, that is for voters who didn't punch the cards the 22 way they were supposed to. And the attorney, your office 23 came out with the opposite conclusion. 24 The secretary's brief contends that that had 25 always been the rule in Florida. Is that the case? Do 39 1 you know of any other elections in Florida in which 2 recounts were conducted, manual recounts, because of an 3 allegation that some voters did not punch the cards the 4 way they should have through their fault? No problem with 5 the machinery -- it's working fine. You know, there were 6 what, pregnant chads, hanging chads, so forth? 7 MR. HANCOCK: No, Justice -- 8 QUESTION: Did that ever happen -- 9 MR. HANCOCK: No, I'm not aware of it ever 10 happening before. But, I can say that the Supreme Court 11 of Florida for 100 years has put a duty on election 12 officials to discern the intent of the voter, and while 13 the secretary of the state refers to it as voter error, 14 when the ballot is punched, that's, under the laws of the 15 State of Florida as interpreted by the supreme court, that 16 voter has cast the ballot, even if the chad did not -- 17 QUESTION: Is it your position that any 18 interpretation the Supreme Court of Florida makes to 19 implement the will of the people is never a new law? 20 MR. HANCOCK: The supreme -- yes. I can't say 21 ever, but I'd say that on the case before the court, all 22 that was before the court was ordinary statutory 23 construction, which must be, the result of it whether this 24 Court would agree with it or disagree with it, must be 25 respected by this Court. That's the very foundation of 40 1 federalism. 2 QUESTION: Mr. Hancock, are you relying on the 3 Florida Supreme Court statement at least twice in its 4 opinion -- now I looked at the page to which Mr. Klock 5 referred, page 37-A, it says for the second time that 6 Section, the section governing manual recounts appears to 7 conflict with the sections that set a deadline, and it's 8 reconciling that conflict. 9 MR. HANCOCK: Yes. 10 QUESTION: Whether it was wrong or right, that's 11 what it said its mission was and that's what it did. 12 MR. HANCOCK: Yes. Both in words and in 13 operation, the statutes could not work together because of 14 the time for requesting manual recounts, the extent of the 15 job manual recounts -- 16 QUESTION: What is the section that requires 17 manual recounts? 18 MR. HANCOCK: It's 102. -- well, 102.166 19 authorizes manual recounts. 20 QUESTION: That's different from requires. 21 MR. HANCOCK: Yes, but once it starts, Justice 22 Scalia, once it's authorized, if the initial sample 23 recount shows an error that might effect the outcome of 24 the election -- 25 QUESTION: Then -- 41 1 MR. HANCOCK: The board is then required to, 2 among other things, conduct a full manual recount. 3 QUESTION: No, no. It's required to do one of 4 three things, one of which could be a manual recount. It 5 could decide to do one of the other two instead. 6 MR. HANCOCK: Yes. The problem faced by the 7 counties -- 8 QUESTION: So there is really -- there is -- I 9 mean, the Court says that there is a requirement for a 10 manual recount but I don't see anything in the text of the 11 statute that requires a manual recount. 12 MR. HANCOCK: The statute requires that the 13 election officials attempt to discern the cause of the 14 error. Here the cause of the error was that, in these 15 counties, was that the machines were not able to read 16 ballots, 10,000 ballots in Palm Beach County, the machine 17 did not read as including a vote for president. That was 18 the issue so that the solution to that was not the 19 machines, even when they're operating properly would not 20 read these ballots, so what was left of the county 21 canvassing boards then was to do the full manual recount, 22 and the language of that statute again says they shall do 23 a full manual recount in those circumstances. 24 QUESTION: It says that the board may authorize 25 the manual recount, it doesn't require it. If it does 42 1 authorize it, then it tells it how to do it and says they 2 shall appoint as many counting teams as necessary, 3 presumably as necessary to do it within the time limit. 4 MR. HANCOCK: Yes, Justice O'Connor, but, again 5 these -- under the law these requests can be made up to 6 the time of canvassing -- that means up to six or seven 7 days -- and also the number of ballots at issue here are 8 between 650,000 in Palm Beach County and also 900,000, up 9 to 900,000 in Broward County. 10 QUESTION: If that is a statutory problem, the 11 court's resolution didn't really solve it, did it? 12 Because even with her extended time period the same 13 statutory problem exists. There still isn't enough time 14 under the extended deadlines for some of these counties 15 that have an enormous number of votes to conduct a manual 16 recount, isn't that right? 17 MR. HANCOCK: Well, let me -- 18 QUESTION: I mean to resolve a supposed conflict 19 in the statute in a manner that leaves in place the same 20 problem that existed before seems to me not a real 21 resolution of the statutory problem. 22 MR. HANCOCK: The supreme court tried to blend 23 it all together to make it work, Justice Scalia, and again 24 it came up with a solution. The Secretary of State's 25 argument here is based on -- the Secretary of State 43 1 herself recognized that she had the discretion under 2 Florida law to accept returns filed outside of that 3 seven-day deadline. A breakdown of the machines, in her 4 view, would justify late returns. A failure of the 5 machines to read ballots would not justify late-filed 6 returns. 7 The supreme court said that the legal standard 8 she was using was wrong. That -- we submit that that 9 decision of the supreme court is the law in the state of 10 Florida. 11 QUESTION: I'm going to extend your time two 12 minutes, Mr. Hancock, because you haven't had a chance to 13 say a lot yet. 14 MR. HANCOCK: Well, I don't need the extension 15 time, Your Honor. If there's no other questions, I will 16 stop. Thank you. 17 QUESTION: Thank you. Mr. Tribe, we will hear 18 from you. 19 ORAL ARGUMENT OF LAURENCE H. TRIBE 20 ON BEHALF OF THE RESPONDENTS AL GORE, JR. 21 AND FLORIDA DEMOCRATIC PARTY 22 MR. TRIBE: Mr. Chief Justice, and may it please 23 the Court: 24 I think I would want to note at the outset that 25 the alleged due process violation which keeps puffing up 44 1 and then disappearing and has as far as I can tell not 2 appeared at the state supreme court, did make one 3 appearance in the reply brief here, is really not before 4 the Court, and for understandable reasons, because 5 although it is part of the popular culture to talk about 6 how unfair it is to change the rules of the game, I think 7 that misses the point when the game is over, and when it's 8 over in a kind of photo finish that leaves people unsure 9 who won, and then the question is, how do you develop 10 great, sort of greater certainty, and a rather common 11 technique is a recount, sometimes a manual recount, 12 sometimes taking more time would be rather like looking 13 more closely at the film of a photo finish. It's nothing 14 extraordinary. It's not like suddenly moving Heartbreak 15 Hill or adding a mile or subtracting a mile -- 16 QUESTION: You're seeing no important policy in 17 3 U.S.C. Section 5. 18 MR. TRIBE: No, no. 19 QUESTION: In fact, we can change the rules 20 after -- not important -- the popular culture -- 21 MR. TRIBE: Certainly not, Justice Kennedy, but 22 I read U.S.C. Section 5 -- that is 3 U.S.C. Section 5 not 23 as a requirement that, for example, one never add 24 resources to checking how a particular ballot was cast. 25 If you look at the language, I think it's really much too 45 1 casual to say of it that all of the laws must stay fixed 2 in order to have the safe harbor apply. As I'll try to 3 argue in a few minutes, that's not really a question for 4 this Court, but for the Congress, but the language of 5 Section 5 is that -- and I'll just read what I think are 6 the key words, "if a state --" 7 QUESTION: Can you tell us where you're reading 8 from? 9 MR. TRIBE: Actually, I'm just reading from a 10 copy of the U.S. Code, 3 U.S.C. Section 5, not from any -- 11 the page I can identify -- 12 QUESTION: It's in the appendix to the 13 petitioner's brief, I'm sure, isn't it? 14 MR. TRIBE: Yes, although I'm afraid I don't 15 have it in front of me. 16 QUESTION: Page 3A of the blue brief. 17 MR. TRIBE: Thank you, Justice Souter. Page 3A 18 of the blue brief, I am reliably informed. 19 So if any state -- 20 QUESTION: That won't get you an extra two 21 minutes. 22 MR. TRIBE: Well, I tried. I tried. If any 23 state shall have provided, and then it says by laws 24 enacted prior to the day fixed for the appointment of the 25 electors, a fancy way of saying election day, for the 46 1 final determination of any controversy or contest about 2 the appointment of electors -- and here's the key phrase, 3 I think -- by judicial or other methods or procedures at 4 least six days before the time fixed for the meeting of 5 the electors, that means in our situation, December 12, 6 then the final determination shall be conclusive and 7 govern the counting in Congress. 8 Now, the question for Congress, I suppose, would 9 be, although I don't see how this Court could get into 10 that question at this stage, but the question would be, is 11 a particular change extending a deadline for exigent 12 circumstances because a recount has been authorized, a 13 change in the judicial or methods of procedures for 14 resolving the contest. 15 QUESTION: Let me just ask you a moment, you say 16 you don't think the statute permits this Court to get into 17 the matter at this time. Are you suggesting there could 18 be any judicial review of a decision by the Congress to 19 count one set of electoral votes? 20 MR. TRIBE: No, I don't think so, Mr. Chief 21 Justice, it's just that I don't trust my own imagination 22 to have exhausted all possibilities. For example, in the 23 case in, I think it was 1890, in Fitzgerald v. Green when 24 this Court held that only states can punish fraudulent 25 voting for presidential electors, it got into the act sort 47 1 of obliquely and at an angle, and that had a bearing on 2 the question of how the presidential electoral slate might 3 be composed, but it certainly didn't get into this. 4 QUESTION: No, it certainly was quite different 5 from -- 6 MR. TRIBE: Very. 7 QUESTION: -- this hypothetical. 8 MR. TRIBE: That's certainly right. 9 QUESTION: You suggest in your reply brief that 10 it is not -- I think you said it's not self-evident that 11 the Florida legislature at this time has the right to 12 appoint any slate of delegates because the Congress has 13 set the date, and the date is the general election day. 14 If that is so, doesn't this mean that when we 15 talk -- think about justiciability, we must be very 16 careful to preserve the role of the Court. You have said 17 or suggested here in your reply brief that the Florida 18 legislature now has no role. You are now suggesting that 19 this Court has no role. That means the Supreme Court of 20 Florida is it, so far as a judicial interpretation of the 21 consequences of 3 U.S.C. Section 5. 22 MR. TRIBE: Well, Justice Kennedy, first of all 23 I do want to be clear that in our view the question of 24 whether and when and how the Florida legislature can enter 25 the picture is in no way presented here. That paragraph 48 1 was intended to suggest that it's not obvious that the 2 views of some that there's no problem is right. 3 Secondly, if it were the case that the Florida 4 legislature could not simply decide, well, we're tired of 5 all this counting, we're moving in, and that this Court 6 cannot decide whether the conditions of 3 U.S.C. Section 5 7 are met, it would then remain only for Congress to make a 8 determination and adding the Florida legislature would 9 not, after all, have added an adjudication. 10 QUESTION: And my point is that puts hydraulic 11 pressure on your nonjusticiability argument and makes it a 12 very, very important argument and a critical argument in 13 this case. 14 MR. TRIBE: Well, perhaps, Justice Kennedy, but 15 I frankly can't see how it would affect the decision in 16 this case. After all, you have before you a judgment of 17 the highest court of the state. As Justice Ginsburg and 18 others have suggested, it would ordinarily be the case, 19 surely, that one would not go out of one's way to read the 20 judgment as a breach of faith with the duties of trying to 21 reconcile provisions that are -- 22 QUESTION: Well, I guess in the area, though, of 23 presidential electors it could be that that court, as all 24 courts would be, have to be informed, at least, by the 25 provisions of Section 5 in reviewing the laws enacted by 49 1 the legislature of the state. I mean, it had to register 2 somehow with the Florida courts that that statute was 3 there and that it might be in the state's best interest 4 not to go around changing the law after the election. 5 MR. TRIBE: Well, Justice O'Connor, I certainly 6 agree that if the Florida Supreme Court adverted to 3 7 U.S.C. Section 5, and as Justice Kennedy asked earlier, 8 got it wrong, then there would be a Federal issue for this 9 Court. Would it be, I wonder, a Federal issue -- 10 QUESTION: Well, is there a Federal issue if the 11 Court doesn't -- 12 MR. TRIBE: No. The answer is no. 13 QUESTION: -- advert to that? 14 MR. TRIBE: It would be nice. But remember it 15 is -- 16 QUESTION: Because of Article II, which, after 17 all, does give the legislature plenary power and must have 18 wanted -- it must have wanted to have the laws in place so 19 that it wasn't -- so that Florida wouldn't risk losing its 20 electoral votes. I mean, the legislature had to want that 21 by enacting laws, and perhaps the Florida court has to be 22 aware of the consequences to the state of changing the 23 rules. 24 MR. TRIBE: But, Justice O'Connor, under Article 25 II, Section 1, Clause 2, the authority to regulate the 50 1 manner of the choice of electors is vested in the state 2 legislature. If the state legislature decides from the 3 beginning to exercise that authority by instructing the 4 various institutions, certainly not just the courts, the 5 attorney general, the secretary of state, in very 6 particular ways to exercise their roles in the process, 7 with a specific view of -- 8 QUESTION: Well, it certainly did by enacting 9 that date. Here is the certification date. How could it 10 have been clearer? 11 MR. TRIBE: Well, I suppose it could be a 12 violation of Florida law if the enactment of that date is 13 construed as a direction to a particular authority like 14 the secretary of state or the state's highest court to 15 take certain actions in order to get the benefit of this 16 bonus, but only a violation of Federal law. I don't see 17 how you got a -- 18 QUESTION: What Florida law would that be? 19 MR. TRIBE: Of state law. I'm sorry. 20 QUESTION: Are you talking about the Florida 21 Constitution? 22 MR. TRIBE: Well, it might have been a violation 23 -- 24 QUESTION: But then you run into the Blacker 25 case. 51 1 MR. TRIBE: But it seems to me that the Federal 2 question, which is really what brings us here, can only 3 arise if 3 U.S.C. Section 5 is something other than what 4 Mr. Olson called the indemnification of the state. 5 QUESTION: It can also arise under the section 6 of the Constitution that was construed in Blacker. That's 7 quite independent of 3 U.S. 5. 8 MR. TRIBE: That's right, if one concluded that 9 Florida had violated its duty to empower the legislature 10 to take these regulatory steps. 11 QUESTION: If one concluded that the Florida 12 legislature had relied on the state constitution in a way 13 that the Blacker case says it may not in construing the 14 statute. 15 MR. TRIBE: I think that's possible, Mr. Chief 16 Justice, but the judgment before you doesn't provide even 17 an inkling, I think of proof about those matters. All we 18 have -- 19 QUESTION: That's what we have been arguing -- 20 QUESTION: As to whether it does or whether it 21 doesn't. 22 MR. TRIBE: Well, I think we have been arguing 23 several interrelated things. One of the things we have 24 been arguing is whether one could in good faith reach the 25 conclusion, novel as it was in some respects, as Justice 52 1 O'Connor points out, that the Florida Supreme Court 2 reached. Now, if the answer to that question was no, 3 perhaps if there were a due process issue in this case, 4 and if someone had a protectable interest that was 5 injured, that would be relevant. But the Federal question 6 that makes that relevant here would arise only if one 7 forgot that 3 U.S.C. Section 5 is all carrot and no stick. 8 QUESTION: No. I don't agree with you on that, 9 Mr. Tribe. It seems to me a Federal question arises if 10 the Florida Supreme Court in its opinion rather clearly 11 says that we are using the Florida Constitution to reach 12 the result we reach in construing the statute. I think 13 Blacker is a strong argument they can't do that. 14 MR. TRIBE: Well, that they can never avert to 15 their own constitution? 16 QUESTION: Well, certainly it stands for the 17 proposition you couldn't do it then, in those 18 circumstances. 19 MR. TRIBE: Well, what would it be, I wonder, 20 about the circumstances here that would say that in 21 reconciling these provisions which at first we were told 22 were mandatory, then we were told they are not mandatory, 23 they give discretion, and now we are told that the real 24 issue is simply did the court in putting a boundary on 25 that discretion, do something federally impermissible. 53 1 What would it be about that sequence that would implicate 2 -- 3 QUESTION: Well, you know, if the Supreme Court 4 of Florida simply said in its opinion, look, these 5 sections of the statute conflict, we've got to under our 6 judicial principles resolve it one way or the other, but 7 -- but it doesn't say that. It goes on to say, look, in 8 the light of the Florida Constitution and the general 9 rights conferred there, we are construing it this way. 10 MR. TRIBE: It seems to me that as a tiebreaker, 11 as a way of shedding light on the provisions that are in 12 conflict, so long as it's not done in a way that conflicts 13 with a Federal mandate, they are not violating any -- 14 QUESTION: Mr. Tribe, I don't -- I don't agree 15 with that. I don't -- I don't think that the Florida 16 Supreme Court used the Florida Constitution as a tool of 17 interpretation of this statute. If you look at its 18 opinion, it's separated into, into various sections, 19 issues; IV, legal opinion of Division of Elections; V, the 20 applicable law; VI, statutory ambiguity; and that's -- and 21 VII, legislative intent. That's the section where they 22 construe the statute in view of these ambiguities and so 23 forth. 24 That section concludes, under this statutory 25 scheme, the county canvassing boards are required to 54 1 submit their returns to the department by 5 p.m. of the 2 seventh day following the election. The statutes make no 3 provision for exceptions following a manual recount. If a 4 board fails to meet the deadline, the secretary is not 5 required to ignore the county's returns, but rather is 6 permitted to ignore the returns within the parameters of 7 this statutory scheme. 8 So what the statutory interpretation gives you 9 is a firm termination date of December 7th and discretion 10 in the secretary. The opinion continues, VIII, the right 11 to vote. The text of our Florida Constitution begins with 12 a declaration of rights. And it goes on to say that to the 13 extent the legislature may enact laws regulating the 14 electoral process, those laws are valid only if they 15 impose no "unreasonable or unnecessary" restraints on the 16 right of suffrage contained in the Constitution. In other 17 words, I read the Florida court's opinion as quite clearly 18 saying, having determined what the legislative intent was, 19 we find that our state constitution trumps that 20 legislative intent. I don't think there is any other way 21 to read it, and that is, that is a real problem, it seems 22 to me, under Article II, because in fact there is no right 23 of suffrage under, under Article II. There is a right of 24 suffrage in voting for the legislature but Article II 25 makes it very clear that the legislature can itself 55 1 appoint the electors. 2 MR. TRIBE: It seems to me that it's already 3 been conceded that the legislature can delegate that 4 function to the judiciary. And when Justice Kennedy asked 5 if it can delegate the function to the judiciary, and that 6 is what McPherson seems to suggest, then can it not 7 delegate something less, that is, can it not give the 8 judiciary a role of the sort that it's exercising here? 9 After all, the legislature, and this is important -- it's 10 not true in every state -- the legislature itself 11 repromulgates the Constitution every several years and 12 then it's ratified by the people. 13 QUESTION: Isn't there another -- go on. 14 QUESTION: No. That's all right. 15 QUESTION: Isn't there another way of looking at 16 what the Florida court did, and that was in effect to 17 apply the statute, the interpretative criterion, that 18 where there is any discretion for interpretation, an 19 unconstitutional result should be avoided, and because you 20 have here a statute as I understand it that regulates both 21 Federal and state recounts, that much is, I think is 22 clear. 23 MR. TRIBE: Right. 24 QUESTION: The only way to avoid an 25 unconstitutional meaning of the statute so far as Florida 56 1 law was concerned was to get into this constitutional 2 concern about preserving the franchise, and that because 3 the legislature intended one standard to cover both 4 Federal and state recounts, it therefore is valid to 5 consider the state constitution in order to derive a 6 general meaning that will apply to a Federal, as well as a 7 state election. Can you look at it that way? 8 MR. TRIBE: I fully accept that, Justice Souter. 9 I'd supplement it with one important point. We are not 10 dealing here with a decision in which within the gray area 11 where a court could reasonably go either way, this court 12 simply said we don't care about these Federal 13 considerations. It in particular exercised its equitable 14 powers in favor of the Petitioner in order to facilitate 15 meeting the December 12 deadline while still being able to 16 have electoral contests. That December 12 deadline comes 17 purely from Federal law. 18 QUESTION: Can you -- can you just go back to 19 your characterization of the opinion. I think we would 20 all agree that given that the legislature has to select 21 the manner, a state can't say, our Constitution selects 22 the electors. I suppose that's -- 23 MR. TRIBE: That's right. 24 QUESTION: All right, but thinking of this 25 opinion, suppose the court had said, look, we reach our 57 1 result based on the canons we found in Blackstone. Now, 2 nobody is going to say they said Blackstone is selecting 3 the electors, right? 4 MR. TRIBE: I think that makes sense. 5 QUESTION: All right. Now, I suppose they said, 6 we reached this decision based on the values found in the 7 Constitution. That would be like Blackstone. But suppose 8 they say, well, the legislature wants us to do X, but our 9 Constitution requires us to do not X. That might be 10 different. 11 MR. TRIBE: It might be different. 12 QUESTION: Now, what is it that they have done 13 here? 14 MR. TRIBE: I certainly don't think they have 15 done the third. They did not say -- I think when they 16 underscored the presence of language that Justice Scalia 17 read about what's mandatory, they were simply being candid 18 about the fact that they were acting in conflict with one 19 part of the statute, but the adjacent -- 20 QUESTION: It's in a separate section of the 21 opinion, Professor Tribe, that is entitled the right to 22 vote. It is after the legislative intent section and it 23 says categorically, to the extent the legislature may 24 enact laws, they are invalid. And I suggest perhaps the 25 reason that the court did it is that however expansive the 58 1 doctrine of constitutional doubt is, there is no way that 2 it can make December 7 mean anything except December 7. I 3 mean, they were almost constrained to use the constitution 4 to override the, the firm deadline -- 5 MR. TRIBE: Justice Scalia -- 6 QUESTION: -- that was explicitly set forth in 7 the constitution. 8 MR. TRIBE: Justice Scalia, both you and I think 9 at one point Justice O'Connor, in pointing to the 10 particular dates that came out differently under the 11 approach that this Court used from what would have emerged 12 if they had looked only at 102.111 are making a mistake, 13 with all respect. It's not as though this Court 14 promulgated a rule for the future about December 7th in 15 commemoration of Pearl Harbor, we say December 7 is the 16 day. No. What they did was say we have to find a date 17 which will accommodate these conflicting statutory 18 provisions and policies in light of what our constitution 19 tells us, and we surely -- it would amaze, I would think 20 amaze this Court to see anyone saying that because an 21 opinion was organized under Roman numeral headings -- 22 QUESTION: Professor Tribe -- 23 MR. TRIBE: -- in such a way that -- 24 QUESTION: Isn't it also true, Professor Tribe, 25 that part 8 of the opinion relies on four things -- the 59 1 Florida Constitution, earlier Florida decisions construing 2 statutes, an Illinois case, and a Federal case. 3 MR. TRIBE: Absolutely. 4 QUESTION: Not just their constitution. 5 MR. TRIBE: That's right, and surely -- 6 QUESTION: Is it also true that the inability to 7 use Section 7 depended in the Florida Supreme Court's 8 reasoning not on the existence of the constitution as the 9 sole reason, but on the inability to make the December 7 10 date final and provide for the recounts within the times 11 in which recounts can be called for. What I'm saying is, 12 didn't they say that the date of the 7th cannot stand, not 13 because of the constitution alone but because there are 14 other provisions in the statute that cannot be 15 accommodated with sections -- with the 7 date? 16 MR. TRIBE: Exactly. And I guess to take a 17 broad -- 18 QUESTION: They said that twice, and I think 19 that's critical if you add to that that we read a decision 20 of a state court in the light most favorable to that court 21 and not in the light least favorable. I suppose there 22 would be a possibility for this Court to remand for 23 clarification, but if there's two readings, one that's 24 questionable, one that isn't, all of our decisions suggest 25 that we read the one -- 60 1 MR. TRIBE: Especially, I think, Justice 2 Ginsburg, when the odds that these conceivable Federal 3 problems are indispensable to this result, are 4 overwhelmingly negative. It's not as though one cannot 5 explain the result this Court reached in the most 6 conventional standard ways, and the fact that -- 7 QUESTION: Professor Tribe, I would feel much 8 better about the resolution if you could give me one 9 sentence in the opinion that supports the second of these 10 supposed alternative readings, that supports the 11 proposition that the Florida Supreme Court was using the 12 constitutional right to vote provisions as an interpretive 13 tool to determine what the statute meant. I can't find a 14 single sentence for that. 15 MR. TRIBE: Justice Scalia, I can do a little 16 better than find a sentence. The entire structure of that 17 part of the opinion, as Justice Stevens points out, would 18 be incoherent if the constitution was decisive. That is 19 the highest law in Florida. Why bother with all the rest 20 if that is anything more than an interpretive guide. 21 QUESTION: You would bother with it because 22 having decided very clearly what the statute requires and 23 finding no way to get around the firm dates set, you say 24 the reason it's bad is because of the state constitution. 25 That's how it's written. 61 1 MR. TRIBE: But, Justice Scalia -- 2 QUESTION: They might have tried it another way, 3 but it seems to me they didn't -- 4 MR. TRIBE: They also say that the provision 5 that reaches the result that conflicts with the authorized 6 recounts was written in 1951, that in 1989 they wrote a 7 provision that unmistakably created discretion, and we 8 haven't yet discussed this provision, also created the 9 provision that when the returns are filed late, it doesn't 10 say throw them away, it doesn't say give them back, it 11 says fine every member of the canvassing board $200 a day. 12 That would be a totally crazy provision. As this opinion 13 understands, if you were not to reach a reconciliation of 14 this sort, this result was overdetermined under Florida 15 law. It might be true that they said the constitution 16 also points this way, but there isn't a sentence in the 17 opinion that suggests that without that constitutional 18 argument the result would have to be different. 19 QUESTION: What is the November 26th date? Is 20 that the seven day date moved or is that some kind of a 21 date that tries to reconcile the ultimate point after 22 which the Secretary in exercising her discretion no longer 23 has to accept the late returns? Did it move the date from 24 the statute? Has it created a new date about this 25 discretion? What is it? 62 1 MR. TRIBE: Well, it looks to me like an 2 exercise of the chancellor's foot, as it were, in this 3 particular case. When I saw the date, November 26th, I 4 couldn't come up with an algorithm or a formula that would 5 generate it, but the court was confronted with the task of 6 drawing, as this Court has recognized, what are sometimes 7 inevitably arbitrary lines; that is, it said it was not 8 consistent with the overall scheme of the statute to 9 require these recounts, which had just begun, to 10 terminate. That truly would be a promise to the ear to be 11 broken to the hope, like a munificent bequest, Justice 12 Jackson said -- 13 QUESTION: If the legislature -- 14 MR. TRIBE: -- in the pauper's will. Why tell 15 people the count if you won't count it? 16 QUESTION: And if the legislature had jumped 17 into the breach and said this same thing, would that be a 18 new statute or new enactment under 5 U.S.C.? 19 MR. TRIBE: I -- honestly, Justice Kennedy, I'm 20 not sure because the language that I quoted from 3 U.S.C. 21 Section 5 focuses on the institutional dispute resolution 22 arrangement that is in place, and if you look at the 23 legislative history in the decade of hearings in the 24 period after the Hayes-Tilden debacle, that history 25 focused on the importance of having a fixed tribunal which 63 1 you could look to rather than one cooked up at the last 2 moment, and indeed what they seem to be most afraid of was 3 the political entry of legislators and executives at the 4 11th hour. There was no focus at all. 5 QUESTION: But are you saying you can't tell us 6 whether they, in the hypothetical, supposed that it would 7 be a new enactment? 8 MR. TRIBE: Well, there are certainly no cases 9 on the subject. The language gives me very little 10 guidance. Since the section is addressed to Congress, 11 neither my opinion about it nor the Court's opinion is 12 necessarily -- 13 QUESTION: You don't think you could tell us 14 what you might advise the Congress if you were the counsel 15 for the Judiciary Committee. 16 MR. TRIBE: I think I would advise the Congress 17 that it is not a new enactment, that it is an entirely 18 reasonable construction of an existing enactment as to 19 which the only alternative construction is to make it 20 self-destruct, and to make it internally contradictory, 21 and I honestly don't think if I were advising Congress 22 that I would say it's a new construction. 23 I do think, also, that some people reasonably 24 could argue the contrary, and I guess I think that this 25 language should be interpreted whether by a court or by 64 1 Congress in a way that gives some deference to the state 2 government and its organs, and I think any degree of 3 deference here is inconsistent with saying that there's 4 been a Federal violation, especially when -- I want to 5 remind us all about the context. Are we going to say that 6 this paragraph in this opinion says that Florida is in 7 breach of Article II of the Constitution in general? Hard 8 to say. I don't think so. 9 QUESTION: There should perhaps be some 10 deference, though, to the concept expressed in Article II, 11 that it is the authority of the legislature and some 12 special concern about what the legislature may have said. 13 MR. TRIBE: Yes, but if the legislature is 14 entirely happy not to completely delegate this power to 15 the courts, which Article II would permit, but rather to 16 allow the courts to exercise a somewhat more flexible role 17 than the one that the critic of this opinion would be 18 embracing. That's within the power of the legislature of 19 Florida. 20 QUESTION: Yeah, but who would have thought that 21 the legislature was leaving open the date for change by 22 the court? Who would have thought that? 23 MR. TRIBE: Anyone. If you just read the 24 statute in 1989 and it says may. It says she may reject 25 the late returns. 65 1 QUESTION: That doesn't change -- that's not the 2 date. 3 MR. TRIBE: No, the date is the one from which 4 the may is measured. That is, you're supposed to get it 5 in by seven days later. What if you don't? Well, if you 6 don't, she may or she may not reject them. Now, anybody 7 reading that would realize that's a deadline only in a 8 kind of Pickwickian sense. It's not a real deadline. 9 She's got discretion. Certainly if there's an act of God 10 of the sort Justice -- was it Justice Stevens? -- asked 11 about -- 12 QUESTION: Yes, well, then the Secretary came in 13 and argued and said, yes, her discretion was if it were an 14 act of God or a machine breakdown she would exercise her 15 discretion. 16 MR. TRIBE: And it's an entirely normal exercise 17 of judicial interpretation to say that this statute is not 18 limited to God and machines. 19 QUESTION: Professor Tribe, can I ask you why 20 you think the Florida legislature delegated to the Florida 21 Supreme Court the authority to interpose the Florida 22 Constitution? I mean, I -- maybe your experience with the 23 legislative branch is different from mine, but in my 24 experience they are resigned to the intervention of the 25 courts, but have certainly never invited it. 66 1 MR. TRIBE: Well, I have to say my experience 2 parallels that -- 3 QUESTION: What makes you think the Florida 4 legislature affirmatively invited the Florida Supreme 5 Court? 6 MR. TRIBE: The odd thing is that the system in 7 Florida involves their own repromulgation of the 8 constitution, and their scheme with respect to the 9 resolution of disputes over elections draws a sharp 10 distinction between elections to their own House and 11 Senate, which they won't trust the courts with as far as 12 they can throw them. Those are to be resolved exclusively 13 in the House and Senate, and all others are to be resolved 14 in the courts under a standard that they understandably 15 preferred. 16 QUESTION: They are resigned, that they are 17 resigned to, but they need not be resigned to the Florida 18 Supreme Court interposing itself with respect to Federal 19 elections, they need not be because the Florida 20 Constitution cannot affect it. And I -- I just find it 21 implausible that they really invited the Florida Supreme 22 Court to interpose the Florida Constitution between what 23 they enacted by statute and the ultimate result of the 24 election. 25 MR. TRIBE: Well, I suppose if they were at all 67 1 far-sighted, if they looked at their own work and saw how 2 self-contradictory it was, they might say we would want 3 someone with the authority to reconcile these provisions 4 to do so in the light not only of the literal language but 5 of the fact that they are dealing with something very 6 important, the franchise, that disenfranchising people, 7 which is what this is all about, disenfranchising people 8 isn't very nice. 9 QUESTION: Wouldn't justice -- 10 MR. TRIBE: And it violates the Federal as well 11 as the state Constitution. 12 QUESTION: But wouldn't Justice Scalia's 13 suggestion be a stronger suggestion if they had dealt by 14 the statute only with Federal elections or only with a 15 presidential election as opposed to dealing with both 16 state and Federal in the same statute? 17 MR. TRIBE: Well, it's not uncommon, given the 18 convenience of having similar regulations apply on 19 election day not to bifurcate. Oregon v. Mitchell, after 20 all, confronted the nation with a problem -- 21 QUESTION: Right. But when they -- when they 22 don't bifurcate, it's reasonable to suppose that they 23 expect their statute to be construed, number one, as one 24 statute, not as having different dates for different, for 25 state and Federal; and, number two, to be construed so far 68 1 as the state concern arises in accordance with the state 2 Constitution, and if that is so, then the result is they 3 would expect a state constitutional concern to inform 4 their interpretation of a statute which ultimately governs 5 Federal as well as state. 6 MR. TRIBE: And they would recognize that when 7 the Federal election involved the presidency of the United 8 States with the special problems of the Electoral College 9 deadline, they might emerge with rather different 10 deadlines and to some extent a different approach for the 11 -- to elections. 12 QUESTION: But there are already different 13 deadlines for Federal elections, aren't there, because of 14 the Federal statute concerning overseas ballots? 15 MR. TRIBE: Yes. That's -- that's entirely 16 true. 17 QUESTION: So that's, that's going to be 18 different anyway. 19 MR. TRIBE: And there is an administrative order 20 -- 21 QUESTION: But it's as a result of Federal law, 22 isn't it? 23 MR. TRIBE: Well, there is a consent decree 24 arising out of Federal law. There was the Federal general 25 statute -- 69 1 QUESTION: But it wasn't the legislature's 2 choice, it was Congress' choice that required that. 3 MR. TRIBE: That's right. In 1986, there was a 4 congressional statute that already created that 5 difference. 6 QUESTION: Mr. Tribe, before you finish, I would 7 like to know whether you are conceding some of the things 8 you said. Sounds like maybe you are. But the Florida 9 legislature under Article II, Section 1, could say we 10 don't want any judicial review of anything about the 11 manner in which we say electors should be appointed. Does 12 the Florida legislature have the authority to cut out 13 judicial review? 14 MR. TRIBE: No. No, I certainly don't think so. 15 They cut out judicial review -- even this may not be 16 entirely consistent with the Florida Constitution. They 17 cut out judicial review for the election of their own 18 members in the House and Senate. I certainly don't think 19 they would have the authority to expel the Federal 20 judiciary from the election of senators and 21 representatives. 22 QUESTION: No. I mean the state judiciary. The 23 state judiciary. When it says each state shall appoint 24 electors in such manner as the legislature thereof may 25 direct. 70 1 May the legislature direct as to the Florida 2 Supreme Court, and Florida Supreme Court we don't want you 3 to review whatever we do? 4 MR. TRIBE: I'm not actually clear about that, 5 Justice Ginsburg. I have thought about it a lot. It 6 seems to me that under Smiley v. Holm and similar cases, 7 the general principle is that the Constitution takes the 8 state government and its arrangement as it finds it, and 9 that when the legislature is identified, that really does 10 not mean the legislature in some specialized capacity, as 11 with Article V. 12 Now, if that's the case and if it's therefore 13 assumed that the legislature is surrounded with both 14 executive and judicial authority, then a decision by the 15 legislature to completely exclude the judiciary from any 16 possible role, the state judiciary, might be inconsistent 17 with the underlying meaning of Article II itself. 18 QUESTION: Well, could the state legislature at 19 least now say in light of all this confusion, we enact a 20 law today saying this is the way electors will be 21 selected? Is that open to the legislature now? 22 MR. TRIBE: I'm not sure. That's very much like 23 my inability to answer because I honestly have not reached 24 a conclusion that it's not presented by this case. I 25 don't know whether the legislature could do the further 71 1 thing of naming electors, and if it doesn't do that -- 2 QUESTION: Thank you, Mr. Tribe. 3 MR. TRIBE: Thank you, Mr. Chief Justice. 4 QUESTION: Mr. Olson, you have four minutes 5 remaining. 6 REBUTTAL ARGUMENT OF THEODORE B. OLSON 7 ON BEHALF OF THE PETITIONER 8 MR. OLSON: Thank you, Mr. Chief Justice. May it 9 please the Court: It seems to me that it's very difficult 10 to read the Florida Supreme Court decision as saying 11 anything else other than the Florida Constitution in their 12 view, in that court's view, is trumping everything else. 13 The second paragraph of the conclusion says because the 14 right to vote is the preeminent right in the declaration 15 of rights of the Florida Constitution and so forth, this 16 opinion is full of language -- 17 QUESTION: But suppose they refer to the 18 declaration of the rights of man, to 1789, the French 19 revolution, I mean, the right to vote is a value in the 20 constitution. Are they actually saying -- I didn't see 21 it? 22 MR. OLSON: They are sayihng -- 23 QUESTION: Or are they are saying the statute 24 means one thing, but the statute is unconstitutional 25 because the Constitution of Florida says the opposite. I 72 1 didn't see that. 2 MR. OLSON: I think that the only reasonable 3 fair reading of the decision is that the Florida Supreme 4 Court felt that, and it says it over and over again, that 5 we are going to be -- attempt to discern the will of the 6 people, the will of the electorate and discern, and 7 enhance in whatever way we possibly can the right to vote. 8 And because of that, these provisions of the statute which 9 are very much quintessentially legislative, the timetables 10 that are involved in this statute, particularly the 11 November 14th deadline, is a part of a composite package. 12 There is one week for a protest and certain recounts to 13 the extent that they can be done and there are four weeks 14 for contests. 15 When the Florida Supreme Court truncated, when 16 the Florida Supreme Court expanded the protest period from 17 7 days to 19 days, it necessarily limited the contest 18 period to a shorter period of time. It changed the 19 discretion. It allowed certain things to occur that 20 couldn't have occurred and it justifies all of those 21 things on the grounds that the Florida Supreme Court, the 22 Florida Constitution trumps those legislative concerns, 23 and that's why it said we are not going to be dissuaded by 24 hypertechnical statutory considerations. So the court was 25 doing what this Court said in the McPherson vs. Blacker 73 1 case that it cannot do, allow itself to insert itself or 2 the Florida Constitution over what is required by Article 3 II, Section 1 of the Constitution. 4 It also seems to me quite evident in response to 5 what Justice Kennedy was asking earlier, that there was 6 concern about the Federal statutory provision, the 7 language to which I think Justice Kennedy was referring is 8 on page 32-A of the appendix to the petition from the 9 court's decision, and there is a footnote there that does 10 refer to reference to 3 U.S.C. 1 through 10, which of 11 course includes Section 5, and it says so in conjunction 12 with the statement that the exercise of the discretion by 13 the secretary of state could not be done in such a way 14 that would preclude Florida voters from participating 15 fully in the Federal electoral process. The court was 16 assuming, it seems to me, that it did not, was not 17 conflict -- the decision that it was rendering was not 18 going to cause a conflict with the Federal statutory 19 scheme, and it was, we submit, in error in that regard. 20 So the -- the -- to sum up with respect to this, 21 the Florida Supreme Court radically changed the 22 legislative scheme because it thought it could do so under 23 the Florida Constitution. By doing so, it acted 24 inconsistently with Article II of the Constitution, and 25 inconsistently with Section 5 of Title III, and it has 74 1 brought about precisely the circumstances that Section 5 2 of Section 3, Title III, was designed to avoid. 3 QUESTION: As I look in the conclusion, the 4 paragraph on page 37-A, where they summarize what they 5 said, there is nothing there about the Florida 6 Constitution. It's only about the Florida election code. 7 They say they must construe the Florida election code as a 8 whole, and they point out the provisions in conflict. 9 There is not one word in that paragraph that says anything 10 about the Florida Constitution. 11 MR. OLSON: The very second paragraph refers to 12 the Florida Constitution and the rights to vote. Page 13 36-A of the appendix to the petition. 14 CHIEF JUSTICE RHENQUIST: Thank you, Mr. Olson. 15 The case is submitted. 16 (Whereupon, at 11:30 a.m., the case in the 17 above-entitled matter was submitted.) 18 19 20 21 22 23 24 25 75