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Excerpts of Supreme Court Arguments
December 11, 2000
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THEODORE OLSON, Bush campaign attorney: 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.

See more information about the election, including the latest audio from National Public Radio, on Minnesota Public Radio's Campaign 2000 section.
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 ANTHONY M. KENNEDY: Can you begin by telling us our federal jurisdiction? Where's the federal question here?

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 3 of federal law.

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 agency--it seems to me a holding which has grave implications for our Republican theory of government.

--- OLSON: Justice Kennedy, the Constitution specifically vested the authority to determine the manner of the appointment of 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 of the state.

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

OLSON: It 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.

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

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

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.

OLSON: Well, 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 an appellate jurisdiction. It may not be the most powerful argument we bring to the Supreme Court.

KENNEDY: I think that's right.

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

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.

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 it may inform the reading of statutes crafted by the legislatures 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--rather than to say there's no judicial review here in Florida.

OLSON: I think that I don't disagree with that, except to the extent that I think that the argument we've 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.

JUSTICE JOHN PAUL STEVENS: And is it critical to your Article II argument that we read the word "legislature" as narrowly--I mean, the power granted the legislature as similar to that granted in Article 5 of the Constitution?

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

OLSON: No, 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 would be unfortunate to assume that the legislature devolved its 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... 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.

STEVENS: But is it the choice of the legislature or 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?

OLSON: No, Article II, we do not contend that Article II would prohibit ... In the context of this case, we're saying that they can include the judicial branch when they wish to do so, but 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...

STEVENS: Mr. Olson .. 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?

OLSON: Well, I think that the dissenting 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 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.

OLSON: After the decision of December 8, in this context, those remand provisions--I mean those 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 DAVID H. 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.

OLSON: Well, to read that provision--it's written quite broadly. One has to read that in the context of the entire statutory framework. If one reads it the way the Florida Supreme Court did, the entire process is tilted on its head. Where there used to be the 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...

SOUTER: What's the timetable in 168?

OLSON: There's no timetable...

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.

OLSON: Well, I think--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.

SOUTER: It may well be, and I, you know, I will 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 a 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.

OLSON: Well, I am hoping to convince you that they passed far beyond the normal limits of statutory construction. The changing of the meaning...

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 has simply by good statutory construction, but I don't see the...

OLSON: It is, we submit, an utter revision of the timetables, the allocation of...

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

OLSON: That's correct.

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

OLSON: We're not just saying timetables. 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 timetable. The fact that there are timetables, 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...

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.

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 effect...

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

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...

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

OLSON: Well, because we said...

SOUTER: You'd find out.

OLSON: Because we argued, and I believe, that there's a very firm basis 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've recited them. The timetables are important.

KENNEDY: I thought your point was that the process is being conducted in violation of the equal protection clause because its standardless.

OLSON: And the due process clause. And what we know is now the new system that was set forth and articulated last...

JUDGE STEPHEN G. BREYER: In respect to that, if it were to start up again, if it were ... totally hypothetically ... and you were counting just undercounts, I understand that you think that the system that's set up now is very unfair, because it's different standards in different places. But what in your opinion would be a fair standard, on the assumption that it starts up missing the (December) 12th deadline but before the 18th?

OLSON: Well, one fair standard--and I don't know the complete answer to that, is that there would be a uniform way of evaluating the manner in which--there's Palm Beach, for example...

BREYER: All right. A uniform way of evaluating. What would the standard be, because this is one of your main arguments, you say intent of the voter is not good enough, you want substandards. What in your opinion would be the most commonly used in the 33 states or whatever, or in your opinion, the fairest, uniform substandard?

OLSON: Well, certainly, at minimum, Justice Breyer, the penetration of the ballot card would be required. 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 had to be punctured...

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

OLSON: It is certainly a starting point. And...

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

OLSON: That is correct, and...

O'CONNOR: Is that the starting point under the Florida legislative scheme?

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

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

OLSON: She had not set one, and that's one of the objections that we had with respect to the process that the--the selective process that existed and that we discussed in conjunction with the November 21 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.

SOUTER: If this were remanded to the Leon County Circuit Court, and the judge of that court addressed the secretary of state--either is or could be made a party--and said, "Please tell us what the standard ought to be. We will be advised by your opinion." That would be feasible, wouldn't it?

OLSON: I think it would be feasible. Now, counsel for the secretary of state will be up in a moment, immediately after me.

GINSBURG: But if we're talking about the contest period, the statute, as Justice Souter pointed out, speaks with amazing breadth. It says that, "The circuit judge," this is the text, "shall fashion any order he or she deems necessary to prevent or correct any wrong, and to provide any relief appropriate under the circumstances." I couldn't imagine a greater conferral of authority by the legislature to the circuit judge.

OLSON: But we submit, in the context of the entire election code itself. Now, the intent of the voter standard, the one that's been cited and relied upon by our opponents most, is a provision that's contained in the provision of the Election Code that deals with damaged or spoiled ballots.

SOUTER: OK, but we have--there's no question that the closest we can come now, under Florida law, is an intent of the voter standard. Is it your position that if any official, judicial or executive, at this point were to purport to lay down a statewide standard, which went to a lower level, a more specific level than intent of the voter, and said, for example, "Count dimpled chads" or "Don't count dimpled chads," in your judgment would that be a violation of Article II?

OLSON: I don't think it would be a violation of Article II, provided that--I mean, the first part of your question...

SOUTER: All right. So if we went from the standard that existed before, the dimpled chads that hadn't--that that had not been a standard anywhere in Florida, if that change was made, we would strongly urge that that would be a violation of Article II, a complete change...

SCALIA: Mr. Olson, it is also part of your case, is it not, that insofar as that language just quoted is concerned, the power of the circuit judge (is) to prevent or correct any alleged wrong? It's part of your submission, I think, that there is no wrong when a machine does not count those ballots that it's not supposed to count.

OLSON: That's absolutely correct, Justice Scalia. It would...

SCALIA: The voters who detach the chads entirely, and the machine as predicted does not count those chads, where those instructions are not followed, there isn't any wrong.

OLSON: That's correct. This has been euphemistically referred to as legal votes that haven't been counted. These are ballots where the system created by Florida, both with respect to the initial tabulation and the preferred system for the recount, the automatic recount in close elections, is to submit those ballots to the same mechanical, objective scrutiny that the initial count was done. And those were not counted either because there were votes for more than one candidate, which would make them overvotes I guess they're calling them, or that they read as no-vote, which many people do. Many people do not vote in the presidential election, even those that are voting for other offices.

SOUTER: But as to the undervotes, and as to the undervotes in which there is arguably some expression of intent on the ballot that the machine didn't pick up, the majority of the Florida Supreme Court says you're wrong. They interpreted the statute otherwise.

Are you saying here that their interpretation was so far unreasonable in defining legal vote as not to be a judicial act entitled, in effect, to the presumption of reasonable interpretation under Article II?

OLSON: Yes, that is our contention. And that has to be done--that contention is based upon everything else in the Florida statute, including the contest provisions. The manual recount provisions...

WILLIAM H. REHNQUIST, chief justice: Mr. Olson...

OLSON: ... and I'd like to reserve the balance of my...

REHNQUIST: ... is it critical to your position that the Florida Supreme Court erred in its resolution of the "shall-may" controversy, in its first opinion...

OLSON: I'm sorry, I missed...

REHNQUIST: Is it critical to your position, because you're tying the two cases together, that the Florida Supreme Court made that kind of error in its resolution of the conflict between "shall" and "may" in this...

OLSON: I don't think it's critical to our--what we're saying is that what--the court expanded upon its previous decision that was vacated in this case. It used the time period that it opened up to do this manual recount to then build upon in the December 8 opinion.

JOSEPH P. KLOCK, attorney for the Florida secretary of state: ... If I could start by addressing a question of Justice Souter with respect to the standards: 166 does have time limits. The time limit of 166 is set by the certification, which is seven days after the election.

The time of the contest, there are time limits there as well. You have 10 days to file a complaint, 10 days to file an answer.

And in the context of a presidential election, you then, of course, have the December 12 deadline. So, therefore, there are time constraints that are there.

BREYER: Which is federal, not state, and occurs in the safe harbor statute.

KLOCK: Yes, but...

BREYER : Or as a result of the safe harbor statute.

KLOCK: Yes, Your Honor, but this court, in its opinion that it handed down in the initial Harris case pointed out that it was clear that there was a desire and a wish by the legislature to preserve the safe harbor.

BREYER: I thought the Florida court accepted that too in its current opinion.

KLOCK: They did say that, exactly, Your Honor.

BREYER: Mr. Klock...

REHNQUIST: You refer to the first Harris case. We think of it as the first Bush v. Gore case. You're talking about the same?

KLOCK: Yes, Your Honor.

SOUTER : Mr. Klock, will you address Justice Breyer's question of a moment ago? If there were to be a uniform standard laid down, I suppose at this point by the Leon County Circuit Court, or in any other valid way, in your judgment, what should the substitute standard be?

KLOCK: I'll try to answer that question.

You would start, I would believe, with the requirements that the voter has when they go into the booth. That would be a standard to start with.

The voter is told in the polling place, and then when they walk into the booth, that what you're supposed to do, with respect to the punch cards, is put the ballot in, punch your selections, take the ballot out, and make sure there are no hanging pieces of paper attached to it.

The whole issue of what constitutes a legal vote, which the Democrats make much ado about, presumes that it's a legal vote no matter what you do with the card. And presumably you could take the card out of the polling place and not stick it in the box and they would consider that to be a legal vote.

The fact is, is that a legal vote, at the very basics, has to at least be following the instructions that you were given and placing the ballot in the box.

BREYER: No, we're asking, I think, not what the Florida election law is at this point, in your opinion, but rather if, under the equal protection clause ... and I'm drawing on your experience as a person familiar with elections across the country, you've looked into this...

KLOCK: Yes, sir.

BREYER: ... what would be a fair subsidiary standard applied uniformly, were it to be applied uniformly across all the counties of Florida, including Broward, a fair, uniform standard for undervotes?

Remember, Indiana has a statute, Michigan has a statute, 33 states have a statute where they just say "intent of voter." But in your opinion, because of the hanging chad, et cetera, et cetera, what is a fair, not necessarily Florida law, but a fair, uniform standard?

KLOCK: Without being disrespectful, Your Honor, I think you've answered the question in terms of phrasing the question. There are any number of statutory schemes that you could select from, if you were a legislature. But as a court, I don't think that the Supreme Court of Florida, respectfully, or any other court can sit down and write the standards that are going to be applied...

BREYER: In your opinion, if you were looking for a basically fair standard, to take one out of a hat, Indiana or Palm Beach, 1990, in your opinion would be a basically fair one?

KLOCK: If I were to take one out of a hat, Your Honor, if I was a legislature, what I would do is I would hold that you have to punch the chad through on a ballot. In those situations where you have a ballot where there are only indentations in every race, you might then come up with a different standard. But the only problem that we have here is created by people who did not follow instructions.

BREYER: OK. Can I ask you a different question on Florida law?

KLOCK: Yes, sir?

BREYER: And the question on Florida law is simply this, what the statute as I take it, the contest statute, lists grounds for contesting. One of those grounds is rejecting a sufficient number of legal votes, sufficient to place the election in doubt. And then the circuit judge is given the power to investigate that allegation, just to look into it.


BREYER: So why would it be illegal under Florida law to have a recount just to investigate whether this allegation is or is not so?

KLOCK: The justice's question assumes that they are legal votes.

BREYER: There might be some in there that are legal under anybody's standard.

KLOCK: Your Honor, if they are not properly--if the ballot is not properly executed, it's not a legal vote. ... And I would respectfully suggest that a ballot that is not properly punched is not a legal ballot. And I think also, sir, if you go through an analysis of the vice president's arguments and supporting what the Supreme Court does, there's sort of an omelet that is created by going and picking through different statutes.

For instance, the clear intent standard comes from a statute that deals with a damaged ballot where you have to create, to put through the machine, a substitute ballot. And there are very clear directions as to what to do to preserve the integrity of the ballot.