Transcript of Oral Arguments, U.S. Supreme Court
George W. Bush vs. Palm Beach County Canvassing Board
December 1, 2000

DALE BOSLEY (Marshal): The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States.

Oyez, oyez, oyez. All persons having business before the Honorable, the Supreme Court of the United States are admonished to draw near and give their attention for the Court is now sitting. God save the United States and this Honorable Court.

(Sounds gavel.)

JUSTICE REHNQUIST: We'll hear argument this morning on No. 00- 836, George W. Bush versus the Palm Beach County Canvassing Board.

Mr. Olson.

MR. OLSON: And may it please the court.

Two weeks after the November 7th presidential election, the Florida Supreme Court overturned and materially rewrote portions of the carefully formulated set of laws enacted by Florida's legislature to govern the conduct of that election and the determination of controversies with respect to who prevailed on November 7th.

These laws have been formulated by the Florida legislature pursuant to an express delegation of authority to it by the United States Constitution. The election code that the Florida legislature developed conformed to Title 3, Section 5 of the United States Code. That provision invites states to devise rules in advance of an election to govern the counting of votes and the settling of election controversies.

JUSTICE O'CONNOR: Well, Mr. Olson, isn't Section 5 sort of a safe-harbor provision for states? And do you think that it gives some independent right of a candidate to overturn a Florida decision based on that section?

MR. OLSON: We do, Justice O'Connor. It is a safe harbor, but it's more than that. And Section 5 of Title 3 needs to be construed in connection with the history that brought it forth --

JUSTICE O'CONNOR: Yes, but I would have thought it was a section designed in the case of some election contest ends up before the Congress, a factor that the Congress can look at in resolving such a dispute. I just don't quite understand how it be independently enforceable.

MR. OLSON: That's why I've mentioned the context in which that section was adopted. In light of the extreme controversy that was faced by this country as a result of the 1876 election -- and as this court knows, that election was very close, it led to controversy, contests, discord -- Congress was very much concerned about the possibility of that happening again. And one of the --

JUSTICE KENNEDY: Yes, but what they did was -- and it's typical of grant-in-aid programs -- they said if you run a clean shop down there, we'll give you a bonus, and if you don't, well, you take your chances with everybody else.

MR. OLSON: Justice Kennedy, I submit that it is much like a compact that Congress was offering in the form of Section 5: Yes, if you do these things, certain things will happen.

But among these things -- what Congress wanted to accomplish with Section 5 is not only the -- to provide the benefit to the states, but to provide the benefit to the United States of the states accepting that implicit proposal.

JUSTICE KENNEDY: Well, what is there in the opinion of the Supreme Court of Florida that indicates that it relied on this federal statute in reasoning -- in the reasoning for its decision and in its judgment?

MR. OLSON: Well, I think the fact is that it did not. What it did was it disregarded the compact. When the state adopted a code of ethics -- or a code of election procedures that govern the election and the determination of disputes pursuant to the election, it brought itself into that safe harbor, and guaranteed to the voters and the candidates in that state, that the controversy and turmoil that infected this country after the 1876 --

JUSTICE KENNEDY: Well, but we're looking for a federal issue. And I thought that you might have argued that the secretary of state was instructed by the Supreme Court not to jeopardize the state's chances. And it cited 3 U.S.C. Sections 1 through 10. And so, if the state Supreme Court relied on a federal issue or a federal background principle and got it wrong, then you can be here.

MR. OLSON: Well, I certainly agree that it mentioned those provisions. I was simply saying that it blew past the important provisions of Section 5 and the benefits that Section 5 gives to the states, to the voters in that state, and to the people running for office in that state.

That is to say that if the rules are complied with, if disputes are resolved according to the rules that are set forth, then not only will the electors chosen by the voters in that state be given conclusive effect at the time they are counted by Congress, but we will not have the controversy, dispute, and chaos that's been taking place in Florida since then.

JUSTICE SCALIA: Mr. Olson, suppose a less -- a less controversial federal benefit scheme, let's say the scheme that says states can get highway funds if they -- if they hold their highway speeds to a certain level -- all right? -- and suppose you have a state supreme court that, in your view, unreasonably interprets a state statute as not holding a highway speed to the level required in order to get the benefit of that safe harbor, would you think that that raises a federal question and that you could appeal the state court decision here because it deprived the state of the benefit of the highway funds?

MR. OLSON: No, I don't think so. I think this --

JUSTICE SCALIA: Then why is this any different?

MR. OLSON: This is a great deal different because this is -- first of all, Article II of the Constitution, which vests authority to establish the rules exclusively in the legislatures of the state, tie in with Section 5.

Secondly, as this has court has stated --

JUSTICE SCALIA: Well, let's just talk about Section 5. I mean, this -- the constitutional question is another one. Why is Section 5 in that regard any different from the highway funding?

MR. OLSON: I think it -- I think it can't be divorced from Article II of the Constitution because it's a part of a plan for the vesting in the legislatures of the state, and Section 5 implements Article II in the sense that it provides a benefit not just to the state, but to the voters and candidates.

JUSTICE KENNEDY: But just talk about the statutory issue.

I assume that if we worked long enough with Justice Scalia's hypothetical, we could find a case where a court adjudicated with reference to the federal principle and got the federal principle wrong -- Indiana v. Brand (sp), that kind of thing. Did that happen here?

MR. OLSON: Well, I think that the state did not pay -- the state supreme court did not pay much attention to the federal statute. It was obviously aware of it. It did get the federal --

JUSTICE KENNEDY: Well, then there's no federal -- constitutional issue here.

MR. OLSON: Well, there is a federal --

JUSTICE KENNEDY: Pardon me -- statutory.

MR. OLSON: Well, we believe that there is, Justice Kennedy, because although the state recognized it, it blew right past it. The state legislature adopted the code that the Section 5 of Article III -- of Title 3 invited it to do. The state supreme court, which had no right under the Constitution -- but I can't divorce the constitutional provision from Section 5 -- then overturned the plan that the state enacted through its legislature to make sure that what happened down in Florida was not going to happen. And so what the state supreme court did, knowing full well that these provisions existed, overturned the carefully enacted plan by Florida --

JUSTICE REHNQUIST: Mr. Olson, do you think that Congress, when it passed 3 U.S. Code, intended that there would be any judicial involvement with it? I mean, it seems to me it can just as easily be read as a direction to Congress saying what we're going to do when these electoral votes are presented to us for counting.

MR. OLSON: I think that it wasn't -- directed to Congress, but it seems to me that in the context in which it was adopted and the promise that it afforded, that the conclusive effect would be given to the state selection of electors that is a somewhat empty remedy, and it doesn't accomplish Congress's objectives if it cannot be enforced when an agency of the state government steps in, as the Florida Supreme Court did here, and overturned the plan by which the Florida legislature carefully set forth a program so that disputes could be resolved, then we wouldn't have the controversy, conflict, and chaos that we submit exists today in Florida.

JUSTICE STEVENS: Mr. Olson, your submission is based on the premise that the Florida court overturned something that the statute had done. Is it not arguable at least that all they did was fill gaps that had not been addressed before?

MR. OLSON: Justice Stevens, I don't think that in this case that's even remotely arguable. What the state Supreme Court did is take a set of timetables; a set of provisions that --

JUSTICE STEVENS: Yes, and the first one was the mandatory -- is it your view still that the "shall" date controls in all respect?

MR. OLSON: No, not necessarily. There is -- the two provisions are essentially --

JUSTICE KENNEDY: 111 and 112.

MR. OLSON: -- 102.111, and 102.112.

JUSTICE STEVENS: Right.