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Election 2000



JUSTICE REHNQUIST: (Sounds gavel.) We'll hear argument now on No. 00-949, George W. Bush and Richard Cheney versus Albert Gore et al.

Before we begin the arguments, the Court wishes to commend all of the parties to this case on their exemplary briefing under very trying circumstances. We greatly appreciate it.

Mr. Olson.

MR. OLSON: Mr. Chief Justice, thank you, and may it please the Court. Just one week ago, this court vacated the Florida Supreme Court's November 21 revision of Florida's Election Code, which had changed statutory deadlines, severely limited the discretion of the state's chief election officer, changed the meaning of words such as "shall" and "may" into "shall not" and "may not", and authorized extensive standardless and unequal manual ballot recounts in selected Florida counties.

Just four days later, without a single reference to this Court's December 4 ruling, the Florida Supreme Court issued a new, wholesale post-election revision of Florida's election law. That decision not only changed Florida election law yet again, it also explicitly referred to, relied upon, and expanded its November 21 judgment that this court had made into a nullity.

JUSTICE : Mr. Olson --

JUSTICE KENNEDY: Can you begin by telling us our federal jurisdiction? Where's the federal question here?

MR. OLSON: The federal question arises out of the fact that the Florida Supreme Court was violating Article II, Section 1 of the Constitution and it was conducting itself in violation of Section 5 of Title III of the federal law.

JUSTICE KENNEDY: On the first, it seems to me essential to the republican theory of government that the Constitutions of the United States and the states are the basic charter. And to say that the legislature of the state is unmoored from its own constitution and it can't use its courts and it can't use its executive agency -- even you, your side, concedes it can use a state agent -- seems to me a holding which has grave implications for our republican theory of government.

MR. OLSON: Justice Kennedy, the Constitution specifically vested the authority to determine the manner of the appointment of the electors in state legislatures. Legislatures, of course, can use the executive branch in the states and it may use, in its discretion, the judicial branch.

JUSTICE KENNEDY: Then why didn't it do that here?

MR. OLSON: I did not do that here because it did not specify -- It did use the executive branch. In fact, it vested considerable authority in the secretary of state, designating the secretary of state as the chief elections official. And as we point out, the very first provision in the election code requires the secretary of state to assure uniformity and consistency in the application and enforcement of the election law. The secretary of state, as the executive branch, is also given considerably other -- considerable other responsibilities. And to a certain extent, especially in connection with the contest phase of the election, certain authority was explicitly vested in the Circuit Court of the state of Florida, which is the trial court.

JUSTICE O'CONNOR: But you think, then, there is no appellate review in the Supreme Court of what a circuit court's done?

MR. OLSON: Certainly the legislature did not have to provide appellate review.

JUSTICE O'CONNOR: Well, but it seemed, apparently, to just include selection of electors in the general election law provisions; it assumed that they'd all be lumped in together somehow. They didn't break it out.

MR. OLSON: Well, there are -- there is a breakout with respect to various aspects of Florida statute and Florida election law. There's a specific grant of authority to the circuit courts. There's no reference to appellate jurisdiction. It may not be the most powerful argument we bring to this --

JUSTICE KENNEDY: I think that's right. (Laughter.)

MR. OLSON: Because notwithstanding -- well, the fact is that the Constitution may have been invoked --

JUSTICE KENNEDY: Well, this is serious business because it indicates how unmoored, untethered the legislature is from the constitution of its own state, and it makes every state-law issue a federal question. Can you use this theory and say that it creates some sort of presumption of validity that allows us to see whether the courts or the executive has gone too far? Is that what you're arguing?

MR. OLSON: No. I would say this with respect -- it would have been a perfectly logical and -- if you read the statutes -- a perfectly logical, especially in the context of a presidential election, to stop this process at the circuit court and not provide layers of appeal because, given the time deadline, especially in the context of this election the way it's played out, there is not time for an appellate --

JUSTICE O'CONNOR: I have the same problem Justice Kennedy does, apparently, which is, I would have thought you could say that Article II certainly creates a presumption that the scheme the legislature has set out will be followed, even by judicial review, in election matters, and that 3 U.S. Code Section 5 likewise suggests that there -- it may inform the reading of statutes crafted by the legislature, so as to avoid having the law changed after the election.

And I would have thought that that would be sufficient, rather than to raise an appropriate federal question --

MR. OLSON: Well --

JUSTICE O'CONNOR: -- rather than to say there's no judicial review here in Florida.

MR. OLSON: I think that I don't disagree with that, except to the extent that I think that the argument we presented and amplified in our briefs is a good argument. It's a solid argument. It is consistent with the way the code is set up, and it's particularly consistent with the timetable that's available in presidential election.

However --

JUSTICE SCALIA: Well, it's pretty close. You can say it could be interpreted that way by the Florida Supreme Court, I suppose. But you think it must be, or is your point that even in close calls we have to revisit the Florida Supreme Court's opinion?

MR. OLSON: No, I think that -- I think that it is -- particularly in this case, where there's been two wholesale revisions, major restructuring of the Florida election code, we don't even get close to that question at all.

It is -- it would be unfortunate to assume that the legislature devolved this authority on its judiciary sub silentio; there is no specific reference to it. But in this case, as we have pointed out, especially the decision of last Friday, there was a major overhaul in almost every conceivable way --

JUSTICE STEVENS: But, Mr. Olson, as I understand your argument, you rely on Lizer (ph) against Garnett (sp) and Hawk (sp) against Smith (sp). And is it critical to your Article II argument that we read the word "legislature" as narrowly -- I mean the power granted to the legislature as similar to that granted in Article V of the Constitution, as those cases dealt with?

MR. OLSON: No, I don't think it's necessary --

JUSTICE STEVENS: So your reliance on -- you really are not relying on those cases?

MR. OLSON: Well, I think those cases support the argument. But we -- as we --

JUSTICE STEVENS: You've got to choose one version of the word "legislature" or the other.

MR. OLSON: I think in different contexts it's not necessarily the case. And certainly it is true that legislatures can employ the legislative process that might include vetoes by a state chief executive, or a referendum, when the state deliberately chooses to choose a legislative method to articulate a code.

The point I think that's most important and most --

JUSTICE STEVENS: But is it the choice of the legislature, or is it -- was it constitutionally limited to this provision? I'm a little unclear on what your theory is. Is it your theory, in other words, that they voluntarily did not permit appellate review of the lower courts in these election contests, or that the -- Article II prohibited them from allowing appeal to the appellate court?

MR. OLSON: No, Article II -- we do not contend that Article II would prohibit them from --

JUSTICE STEVENS: Of course Article V would have, under Lizer (ph) against Garnett (sp) and those cases. But you --

MR. OLSON: In the context of this case, we're saying that they can include the judicial branch, when they wish to do so. But they -- under no circumstances is it consistent with the concept of the plan in the constitution for the state sub silentio -- the state legislature -- sub silentio to turn over to the judiciary the power to completely reverse, revise, and change the election code in all of the major respects --

JUSTICE GINSBURG: Mr. Olson? With respect to the role of judicial review, you rely very much on the McPherson case.

And two things strike me about that case; one is, if you're right on your jurisdiction theory, then should not this court have vacated, instead of affirmed, the decision of the Michigan Supreme Court in that case, because the Michigan legislature didn't confer upon the Michigan Supreme Court in that case any special authority of judicial review?

MR. OLSON: That's entirely possible that that might be the case, Justice Ginsburg, but the entire text of the McPherson decision and its recitation of the legislative history, or the history of legislation and acts by state legislatures to comply with it, make it quite clear that the power is vested in the legislature itself.

JUSTICE GINSBURG: But there was a decision by the court reviewing, which we affirmed. Under your jurisdiction theory, as I see it, there was no role for the Michigan Supreme Court to play because Article II, Section 1, gives the authority exclusively to the legislature and the legislature had not provided for judicial review specially for that measure.

MR. OLSON: I think the context of that case is different, and that it's entirely possible for the court to have come to the conclusion it did in that case, and we believe that case is compelling for the principle that we're arguing in this case, that there is no -- the entire structure of what Florida did -- its election code, in its effort to comply not only with Article II but with Section 5 of Title III -- is such that it did not intend, in any way, to divest itself of the power to determine how the appointment of electors would be determined in a federal presidential election and, most importantly, the resolution of cases and controversies and disputes with respect to the appointment.

JUSTICE GINSBERG: Three times, at least as I count it, in McPherson itself, it refers to what is done by the legislative power under state constitutions as they exist. This is not the most clearly written opinion, and yet three times they refer to the legislative power as constrained by the state's Constitution.

MR. OLSON: And I think that's important. I agree with you, Justice Ginsberg. It's not the most clearly written opinion. But I think that in the context of that case, the relationship of the legislature to the Constitution in that case, and the way that power was exercised, that all can be reconciled with what we're urging the court today; that a wholesale revision and abandonment of the legislative authority can't be turned over, especially sub silencio, by a legislature, simply because there is a constitution. There is a constitution in every state. There is a judiciary in every state. The judiciary performs certain functions in every state. And to go that length, one would assume that the judiciary in every state, under that argument, could overturn, rewrite, revise, and change the election law in presidential elections, notwithstanding Article II, at will.

Now, this was a major, major revision that took place on Friday.

JUSTICE STEVENS: But Mr. Olson, isn't that one of the issues in the case, as to whether it was a major revision? Your opponents disagree. And I know you rely very heavily on the dissenting opinion in the Florida Supreme Court. But which opinion do we normally look to for issues of state law?

MR. OLSON: Well, I think that the dissenting opinion and the two dissenting opinions are very informative. We're relying on what the court did. If one looks at, for example, the recount provisions, before this revision, under Florida law, manual recount under the protest provisions were discretionary, completely discretionary, conducted by canvassing boards during the protest phase of the election -- post-election period, pursuant to legislatively defined procedures as to who could be present, for seven days after the election, with respect to all ballots in a county -- that was mandatory -- and only available, as we heard last week, for tabulation error, up until this election.

After the decision of December 8th, in this context those remand provisions -- I mean, those recount, manual recount provisions became mandatory instead of discretionary, pursuant to judicial rather than executive supervision, during the contest phase rather than the protest phase even though it's not even mentioned in the statute with respect to the contest phase, pursuant to ad hoc, judicially established procedures rather than the procedures that are articulated quite carefully in the statute --

JUSTICE SOUTER: Well, aren't ad hoc, judicially created procedures the point of subsection 8 of 168? I mean, once we get into the contest phase, subsection 8 gives, at least to the circuit court, leaving aside the question of appellate jurisdiction, about as broad a grant to fashion orders as I can imagine going into a statute.

MR. OLSON: Well, to read that, to read that provision -- and it's written quite broadly, but to read that -- one has to read that in the context of the entire statutory framework. If one reads it the way the Florida Supreme Court did at -- the entire process is tilted on its head; where there used to be a decision that was in the election officials, it now becomes in the court. All of the limitations on the remand process that existed during the protest phase, where the standards should be lower, because it's earlier in the process, are thrown out the window. The timetables are thrown out the window. The process that exists -- are there, and one has --

JUSTICE SOUTER: What's the timetable in 168?

MR. OLSON: There's no timetable in --

JUSTICE SOUTER: That's right; there is no timetable there. So that seems to undercut your timetable argument, once you get into the contest phase from the protest phase.

MR. OLSON: Well, I think -- but -- but that's only if you untether 168 entirely from the statute and the scheme by which the protest phase takes place over a period of seven to 10 days in the context of this election, and the contest phase occurs over the next four weeks --

JUSTICE SOUTER: It may well be, and I -- you know, I'll grant you, for the sake of argument, that there would be a sound interpretive theory that, in effect, would coordinate these two statutes, 166 and 168, in a way that the Florida Supreme Court has not done. But that's a question of Florida Supreme Court statutory construction. And unless you can convince us, it seems to me, that in construing 168, which is what we're concerned with now, and its coordination or lack of coordination with 166, the Florida Supreme Court has simply passed the bounds of legitimate statutory construction, then I don't see how we can find an Article II violation here.

MR. OLSON: Well, I am hoping to convince you that they've passed far beyond the normal limits of statutory construction.

The changing of the --

JUSTICE SOUTER: You've convinced us, certainly, that there is a disagreement about how it should be construed, and that disagreement is articulated by the dissents in the most recent case. But I don't quite see where you cross the line into saying that this had simply become a non-judicial act. It may or may not be good statutory construction, but I don't see it as a nonjudicial act.

MR. OLSON: It is, we submit, an utter revision of the time tables, the allocation of --

JUSTICE SOUTER: But, Mr. Olson, we're back to the -- there is no time table in 166.

MR. OLSON: That's correct.

JUSTICE SOUTER: And what your argument boils down to, I think, is that they have insufficiently considered -- I'm sorry, in 168 -- that they have insufficiently considered 166 in construing 168, and you may be right, but you have no textual hook in 168 to say untethered time tables imply, in effect, a nonjudicial act.

MR. OLSON: We're not just saying time tables. We're saying that it has wrenched it completely out of the election code, which the legislature very carefully crafted to fit together and work in an interrelated fashion. It isn't just the time table. The fact that there are time tables, which are very important in a presidential election -- we are today smack up against a very important deadline, and we're in a process where --

JUSTICE SOUTER: Yes, you are, but that is a deadline set by a safe harbor statute for the guidance of Congress, and it's a deadline that has nothing to do with any text in 168.

MR. OLSON: Well, I believe that the Supreme Court of Florida certainly thought that it was construing it -- certainly said so this time -- that it was construing the applicability of Section 5 and it was expressing the hope that what it was doing was not risking or jeopardizing the conclusive --

JUSTICE SOUTER: And it took that into consideration in fashioning its orders under Subsection 8.

MR. OLSON: And we submit that it incorrectly interpreted and construed federal law in doing that, because what they have inevitably done is provide a process whereby it is virtually impossible, if not completely impossible -- and I think it is completely impossible -- to have these issues resolved and the controversies resolved in time for that federal statutory deadline.

Furthermore, it is quite clear. We submit that the process has changed --

JUSTICE SOUTER: Well, if your concern was with impossibility, why didn't you let the process run instead of asking for a stay?

MR. OLSON: Well because, we said --

JUSTICE SOUTER: We'd find out.

MR. OLSON: Because we argued. And I believe that there's a very firm basis for saying that that process already had violated Article II of the Constitution. It was also already throwing in jeopardy compliance with Section 5 of Title 3 because the laws had been changed in a number of different respects, and we're recited them. The timetables are important.

Now, that's why I mentioned the Palm Beach standard that was articulated in writing and provided, along with the ballot instructions, to people voting that the chad ought to be punctured.

JUSTICE BREYER: You're repeating then, basically, Indiana. Is Indiana, in your opinion -- or 1990 Palm Beach -- are either of those fair, or what else?

MR. OLSON: It is certainly a starting point, and is something that has some --

JUSTICE O'CONNOR: Well, would the starting point -- would the starting point be what the secretary of state decreed for uniformity? Is that the starting point --

MR. OLSON: That is correct --

JUSTICE O'CONNOR: -- under the Florida legislative scheme?

MR. OLSON: I would agree with that, Justice O'Connor, and --

JUSTICE O'CONNOR: And what standard did the secretary of state set?

MR. OLSON: She had not set one, and that's one of the objections that we had with respect to the process that -- the selective process -- that existed and that we discussed in conjunction with the November 21st position. Not only was there not a standard, but there was a change, two or three times during the course of this process, with respect to the standard that I was just discussing.

JUSTICE KENNEDY: I understand that she has the expertise and we'll -- let's assume that, under Florida state law, she's the one with the presumptive competence to set the standard. Is there a place in the Florida scheme for her to do this in the contest period?

MR. OLSON: I don't think there is -- well, there is no limitation on when she can answer advisory opinions --

JUSTICE KENNEDY: Even in the contest period?

MR. OLSON: I don't -- I think that that's correct. Now, whether or not, if there was a change as a result of that, of the process, whether there would be problems with respect to Section 5, I haven't thought about.

JUSTICE SOUTER: Well, if this matter was -- if this were remanded --

(Cross talk.)

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