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