FOSTER v. LOVE
The Elections Clause of the Constitution provides that "the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations." 2 USC sections 1 and 7 provide that the Tuesday after the first Monday in November in an even- numbered year is established as the date for federal congressional and presidential elections. In 1975, Louisiana adopted an "open primary," which occurs before the uniform federal election day and in which all candidates appear on the ballot and all voters may vote. If a candidate for a given office receives a majority at the open primary, that candidate is elected and no further act is done on federal election day to fill that office. Louisiana voters challenged the open primary is a violation of federal law. Reversing the District Court, the Court of Appeals held that Louisiana's system squarely "conflicts with the federal statutes that establish a uniform federal election day."
Does Louisiana's open primary violate the federal statutes that establish a uniform federal election day?
Legal provision: Article 1, Section 4, Paragraph 1: Elections Clause
Yes. In a unanimous opinion delivered by Justice David H. Souter, the Court held that when Louisiana's open primary is applied to select among congressional candidates in October, it conflicts with federal law and to that extent is void. The Court rejected the argument that Louisiana's system only concerns the manner, not the time, of a federal election. Justice Souter reasoned that a federal election occurs in Louisiana before the federal election date whenever a candidate receives a majority in the open primary.
Argument of Richard I. Ieyoub
Chief Justice Rehnquist: We'll hear argument now in Number 96-670, Murphy Foster v. Scott Love.
Spectators are admonished not to talk until you get out of the courtroom.
The Court remains in session.
Mr. Ieyoub: Mr. Chief Justice and may it please the Court:
This is the Federal Election Day case up from Louisiana.
As Your Honors know, the 42nd Reconstruction Congress put the Federal Election Day statute on the books in 1872.
The question presented is whether the Federal Election Day statute nullifies Louisiana's open primary system under which all registered voters, regardless of party affiliation, vote for their candidates for Senate and United States Representative.
Under Louisiana law as we know it since 1976, if a candidate receives a majority of the votes in the October primary the candidate is declared elected, and there's no contested election on Federal Election Day, shall we say saving the poor working man a trip to the polls in nonpresidential election years.
Justice O'Connor: General Ieyoub, does any other State, to your knowledge, have this system?
Mr. Ieyoub: Yes, Your Honor.
Oklahoma has a similar system, as does Hawaii, Your Honor.
Justice O'Connor: And they each provide, as Louisiana does, for an open primary and no general election if a candidate gets a majority?
Mr. Ieyoub: Yes, Your Honor.
Justice O'Connor: Now, California has a system, I believe, of allowing crossover voting in primary elections, is that right?
Mr. Ieyoub: I'm not sure, Your Honor.
I believe that's correct.
Justice O'Connor: And some States allow crossover voting.
In other words, there's a primary election to pick the party's candidate, but parties... people who belong to another political party may cross over and vote--
Mr. Ieyoub: Yes, Your Honor.
Justice O'Connor: --in the party primary.
Mr. Ieyoub: Yes, Your Honor.
Justice O'Connor: But in effect Louisiana and you say several other States don't treat the primary election as a party primary.
Mr. Ieyoub: No, Your Honor, it does not.
Everyone has a right to vote in the open primary in October, regardless of party affiliation.
Justice O'Connor: Mm-hmm.
Mr. Ieyoub: And all candidates run in the primary regardless of the party affiliation, so that if there is not a majority vote, then the two top vote-getters go into--
Justice O'Connor: And why is it that Louisiana made that change?
I guess it was not always that way.
It wasn't until the late seventies.
Mr. Ieyoub: --That's correct, Your Honor.
I do not know why they made that change, Your Honor, but the change was made in 1976, and it actually went into effect in 1978, and since 1978, Your Honor, we have proceeded under the open primary law manner of election.
Justice O'Connor: Well, you... do you concede that Congress has the power under the Constitution to enact laws affecting the timing of election of Members of the Congress?
Mr. Ieyoub: Yes, Your Honor.
Congress may at any time alter regulations as it see fits, but I would point out that in 20 years, almost 20 years of the open primary, Congress has never moved to try to alter Louisiana's manner of electing its representatives to Congress so as to force a determinative election on Federal Election Day, and Your Honors, the--
Justice O'Connor: Well, I guess the question, really, is whether the statutes that Congress did pass are contrary to Louisiana's scheme, as was held in the court below.
Mr. Ieyoub: --No, Your Honor, I would argue that it is not.
At the time the statute was passed by Congressman Butler and Senator Thurman in 1872, primaries were unknown.
They did not foresee primaries.
Primaries were a creature of the 20th Century, as fully stated in this Court's decision in United States v. Classic, but they did have the foresight to make exceptions for death or failure to elect, in which case they allowed elections other than on Federal Election Day.
Justice O'Connor: Well, do you say that Louisiana's system creates a vacancy, so the vacancy statute applies?
Mr. Ieyoub: Louisiana's system certainly allows for the election of a candidate in October, as opposed to actually electing on Federal Election Day.
Justice O'Connor: Well, except the Federal statute fixes the Tuesday next after the first Monday in November as the day for election for the Members of Congress.
Mr. Ieyoub: That's correct, Your Honor, and Louisiana's statutory scheme does, in fact, set a date on the first Tuesday after the first Monday.
It does do that.
Justice O'Connor: But the election, if there's a majority vote in the primary, does not occur on that date.
Mr. Ieyoub: --Well, that's correct, Your Honor, and I submit that what we have here is an old statute and new circumstances, in which case I think that we have to look to the legislative purpose and the legislative history, as Chief Justice Taney said, looking, if necessary, to the public history of the times in which the statute was passed, and Justice Holmes saying you can look to the respective minds of Congress.
Justice Kennedy: So you accept the proposition that Louisiana law de jure authorizes elections before the Federal election date?
Mr. Ieyoub: That is correct, Your Honor, a person can be elected de jure under Louisiana's scheme, but what we're saying here is that Thurman and Butler wanted to protect the right to choose, and that is protected by Louisiana's statutory scheme.
What was important, what is important is, as Hamilton said, the right of the people to choose those whom they... who will govern them, and we allow that.
Louisiana's statutory scheme allows that.
That was what was--
Justice Ginsburg: But the question is when it's allowed, and I know that it's called an open primary, but would you explain to me why that isn't a misnomer?
As you've said, everyone can vote.
That's the time everyone votes.
It's not like a party primary, and in order to be in the running you must participate.
Now, why aren't those two features, when they're combined... everyone votes.
Everyone who wants to run must be in on this inning.
Why doesn't that add up to an election?
Mr. Ieyoub: --Well, Your Honor, there is an election on October... in October.
Justice Ginsburg: So then that is the Election Day.
Mr. Ieyoub: That is the election primary date, Your Honor, and if a person receives a majority of the vote, and only in that instance, they are declared elected, and there would be no determinative election on Federal Election Day.
Justice Ginsburg: Yes, but my question to you is, why don't we just call it what it is, that is, an election, since everybody votes, and everybody who wants to be in the running is there?
Why isn't... why is it labeled primary?
It is an election, and it seems to me, being an election it conflicts with the Federal single Election Day.
Mr. Ieyoub: Well, Your Honor, it is an election.
It is also a system of voting that winnows down the candidates in many cases, where you have two individuals with the highest vote totals going into a general election on Federal Election Day, but--
Justice Ginsburg: But you could do that consistent with the Federal day by having, if there are two people, then you have a run-off, as can happen in some States.
Mr. Ieyoub: --That's correct, Your Honor.
Justice Ginsburg: Later on, before January.
Mr. Ieyoub: That's correct, and that is possible, but the State legislature of Louisiana, which we contend has the primary authority to set the manner of elections, has acted in such a way as to hold this scheme, the open primary scheme, as the law of our State.
If we look at the hist--
Justice Ginsburg: But what interest of Louisiana would be affected if Louisiana said, we're going to do our same thing, except we're going to do it on Federal Election Day and, if need be, in the 20 percent of the cases, we'll have a run-off.
Then you would be acting consistently with all of the State goals, and with the Federal law.
Mr. Ieyoub: --Louisiana could do that, Your Honor, but what we're saying here is that Louisiana's open primary scheme in no way really clashes or conflicts with the Federal Election Day statute.
Justice Souter: Well, it does conflict, because it has an election on a day other than the day specified by the Federal statute.
That's why we're here.
Isn't that a clear conflict?
Mr. Ieyoub: No, Your Honor, because I believe that you can't necessarily give a literal interpretation in this particular--
Justice Souter: Why not?
Mr. Ieyoub: --Well--
Justice Souter: The statute's clear.
Mr. Ieyoub: --simply because I think that it might... it would lead to unreasonable--
Justice Souter: What's unreasonable about it?
Congress has decided that it wants the election to occur uniformly on a given day in November throughout the United States.
What's unreasonable about--
Mr. Ieyoub: --We have that, Your Honor.
We have that--
Justice Souter: --No, you don't have that.
Your election, if there is a majority, occurs in October, not in November.
Mr. Ieyoub: --Well, Your Honor, we submit that under the sovereignty of the State we have a right at least to set the manner in which our representatives to Congress will be elected, and it does not conflict in the sense that it's closely--
Justice Souter: There is no constitutional authority on the part of Congress to determine the time, uniformly throughout the country?
Mr. Ieyoub: --There is, Your Honor, but as was pointed out by Mr. Madison in his answer to Mr. Monroe's question about the Times, Places, and Manner Clause, the States should have the primary responsibility.
The reason why the Federal Government might have some control is that they were afraid that if the Federal... I mean, if the State legislatures did not act appropriately, it could bring about the dissolution of the Union, and that's what--
Justice Souter: Is it us... is it up to this Court to decide whether Louisiana has acted appropriately in determining whether a pretty clear Federal statute is going to be applied or not?
Is that what you're asking us to do?
Mr. Ieyoub: --No, Your Honor.
I am... I think that Congress has a right to decide whether or not there is a determinative election on Federal Election Day.
Under Article I, section 5, also--
Justice Souter: Do you think that this is a justiciable controversy?
Mr. Ieyoub: --No, Your Honor, I do not think it's a justiciable controversy, because I fail to see the injury that the respondents have really suffered.
They had a right to vote.
They had the right to vote in October.
Justice Souter: So that--
--But I want to make sure I understand your position.
Your position, then, is not really an argument about whether the statute applies, and if so, how, and whether there is an inconsistency between it and the Louisiana statute.
Your position is that this issue really does not belong in the court.
Mr. Ieyoub: --Yes, Your Honor, that is my position.
It does not belong in the court.
The right of an individual to vote in any manner is not absolute, and this Court so stated in Burdick v. DeCoushy, that the manner of voting is not necessarily an absolute right.
Now, if Your Honors would look at the appendix, joint appendix on page 43, one of the respondents says, I did not vote in the October open primary in which Billy Tauzin received a majority of the vote and was thereby elected outright under Louisiana law.
I was, therefore, prevented by the Louisiana law from exercising my right under the Constitution and Federal law to vote in an election.
She did not vote in the primary, and now she's saying that since I did not vote in the manner in which Louisiana prescribed, I have been deprived, and I have been injured, and Your Honor, we say that will not do.
That is just not correct, and the matter should not be in this Court.
Justice Ginsburg: Then your view is that no voter, as long as they could vote in something they called a primary, would have standing to object to Louisiana's deviating from most of the country in having what is the election a month before everyone else does.
Mr. Ieyoub: Well, Your Honor, I would say that certainly there would... in our situation, where there is an open primary and an October election, when one fails to vote they have not really suffered an injury to the extent that this Court, or to the extent it would create a justiciable controversy in which this Court--
Chief Justice Rehnquist: If you... General Ieyoub, that's how you... if you fail to vote you have no standing, and if you vote you haven't been injured, I suppose, so the result would be that no individual voter could ever challenge the violation, or claim violation of the congressional statute.
Mr. Ieyoub: --Your Honor, when it comes to the manner of voting, I think that's correct, when it comes to a State being able to set forth the manner of voting, as Louisiana has done in the open primary.
Justice Stevens: Yes, but of course, you can have someone who became 21, or whatever your voting age is, on November 1, couldn't have voted in October, but had the Federal statutory right to vote in November but you say, well, that's tough luck.
Mr. Ieyoub: Your Honor, they do have a statutory right to vote in November.
Justice Stevens: But there's no election in November under your system.
Mr. Ieyoub: At times there are, Your Honor.
At times there are... there is the opportunity to vote in November.
Justice O'Connor: Indeed, most of the time it's resolved in the primary, as I understand it.
Mr. Ieyoub: The history has been, Your Honor, that in the past most of the time they have been elected during the primary, and I will point out that under Article I, section 5, the Congress has the authority to challenge the seating of any individual elected to Congress and after 20 years Congress has never moved to remove the credentials of any Louisiana Senator or Congressman because they were elected in October as opposed to November.
I think the results would be unreasonable and impractical to say that if a Congressman got over 50 percent of the vote in a primary, they're not qualified to serve in Congress.
The fact that they would get 50 percent of the vote is an indication of the favor that the people hold him in, and to say that just because it was in October as opposed to an election day in November, that they do not have a right to serve after the people have chosen, I think would lead to unreasonable--
Justice Stevens: Under that argument you could maybe have your primary in September and then if you need a run-off have that in October.
It would still be all right under your analysis.
Mr. Ieyoub: --That's correct, Your Honor.
Justice Stevens: You don't... they could... you could just ignore the November date.
Mr. Ieyoub: Well, we could, but we did not, Your Honor.
Justice Stevens: You didn't.
I understand that.
Mr. Ieyoub: We did not, and in fact--
Justice Stevens: But as a matter of law, if we're trying to figure out what the law requires, you could.
The law really is a nullity as far as it requiring any particular date for the congressional election in Louisiana.
Mr. Ieyoub: --Well, Your Honor, I submit that the--
Justice Stevens: Maybe it isn't necessary, and maybe it doesn't make any sense, but under your view it seems to me it really just isn't even on the statute books.
Mr. Ieyoub: --Well, I think that Louisiana's scheme really does not in any way offer an abuse to its constitutional authority to set the manner, the primary authority to set the manner of elections.
We have a primary, or an election, in October closely tethered or closely associated with the Federal Election Day in November.
Justice Stevens: Yes, but you don't have to, if the statute means what you says it does.
Maybe you do out of your... you know, the goodness of your heart to try and cooperate with what Congress would like you to do, but you don't have to under your reading of the statute.
Mr. Ieyoub: Under our reading of the statute, Your Honor, you're correct.
If we have a majority vote-getter in October, then we feel that it's a useless exercise and a useless expense of money and time to have another election and, by the way, that was one of the objectives of passing the Federal Election Day.
Butler and Thurman didn't want multiple Federal elections so that the poor working man would have to take multiple trips to the polls, and that's--
Justice O'Connor: General Ieyoub, you are making an argument here today, at least in part, that the voters don't have standing and this is not a justiciable controversy.
That was not included in the question, was it, that you brought forward on certiorari?
Mr. Ieyoub: --Your Honor, we have in our brief--
Justice O'Connor: As I read the question presented, you said the specific question presented is whether the election system employed by the State of Louisiana to elect its Members to Congress conflicts with Federal laws governing the time for holding congressional elections.
Mr. Ieyoub: --That's right, Your Honor.
Justice O'Connor: And I thought that was the question we were going to decide.
Mr. Ieyoub: That... that--
Justice O'Connor: Although you seem to be arguing something different today.
Mr. Ieyoub: --Your Honor, we raised subject matter jurisdiction in our brief.
Justice O'Connor: Not in the question presented, however.
Mr. Ieyoub: No, Your Honor.
No, we did not.
Justice O'Connor: No.
Mr. Ieyoub: Your Honor, we have a very--
Justice Scalia: Did you raise it in your brief?
I confess not even to have seen it in... I mean, I'm perfectly willing to consider it, even if you didn't raise it.
Gee, I think... I think I ought to consider it, but I didn't even see it in your--
Mr. Ieyoub: --Your Honor, it's either in the appendix, the joint appendix, or in the brief.
I think it's... it may be in the joint appendix where we raise subject matter jurisdiction, and in any event I--
Justice Scalia: --The joint appendix?
Chief Justice Rehnquist: Why would it be in the appendix?
Mr. Ieyoub: --It's certain particular motions that we had filed.
Chief Justice Rehnquist: Not in this Court.
Mr. Ieyoub: No.
Justice Scalia: This is all new stuff to me.
I mean, I... you know.
Mr. Ieyoub: But Your Honor, I would submit that this Court alone can raise the--
Chief Justice Rehnquist: Well now, just a minute.
You said you had raised it in your brief.
Where in your brief?
Mr. Ieyoub: --I apologize, Mr. Chief Justice.
We did not raise it in our brief.
I was thinking of page 24 of the joint appendix, where, in the United States District Court for the Middle District of Louisiana we raised that the court lacked subject matter jurisdiction in our answer, in that, so I apologize, Mr. Chief Justice.
Justice Scalia: It would have been nice to say something in your brief if you were going to make a big deal about it in your oral argument--
Mr. Ieyoub: Well, Your Honor, I made a big deal about it in response to a question by Justice Souter, and I think it's a big deal when you really come down to it.
I think that... in Ex parte Siebold this Court construed Article 1, section 4 not as any Federal juggernaut just totally wiping out regulation, or the manner of regulations that were passed by the State, but what they asked for, what this Court said was that we need cooperation between the Federal sovereignty and the State sovereignty, a harmonizing combination into one system of regulations made by the two sovereignties.
That's what we have here in Louisiana.
The open primary system, it doesn't really clash or conflict.
What it does is, it harmonizes two sovereignties, putting together election regulations.
Justice Ginsburg: --But you conceded that you could harmonize also if you just shifted the day that you have this election from October till November.
Then you would be totally on track with the Federal Statute.
You would serve the State purpose.
I don't understand why the harmonizing doesn't work against you, because it seems so easy for Louisiana to comply.
Mr. Ieyoub: Your Honor, that is within the purview of the State legislature to do exactly what you say.
They chose not to do it in the last legislative session, although they were faced with that issue.
We argue, however, that the history of the adoption of Article I, section 4, title 2, section 7 and its adoption, indicates that at the time it was passed, at the time the... first of all, it indicates that the State has the primary authority to regulate the manner of elections.
Second, it indicates that they didn't foresee primaries, and that primaries have been seen by this Court as an integral part of the electoral process, and that what the statute fathers of... in 1872 were trying to do was to ensure the right to choose, and the people of Louisiana have a right to choose their representatives that go to Congress.
Justice Stevens: Is it not a fact that at least in presidential election years the percentage of voter turnout at the primary is only around 30 percent or so, whereas the percentage of turnout at the November election is in the fifties and sixties percent?
Mr. Ieyoub: That's correct, Your Honor.
Justice Stevens: So it does make a... perhaps make a difference to the outcome of the election if you have a very low turnout in one time and a very high turnout in the other.
Mr. Ieyoub: Well, that's correct, Your Honor, but I submit that Louisiana has had very high voter turnout in the October primary and--
Justice Stevens: Well, in 1980 it was 28 percent, I think, in 1984, 31 percent, and at the General Election was over 50 percent.
Mr. Ieyoub: --Well, that's correct, Your Honor, but we still say that we have a very close relationship with the Federal Election Day, not such that it's an abuse of our constitutional authority simply to have a system whereby the person that gets the majority of the vote is elected, and there's no need for another useless election on October, on November 2, or whenever.
Chief Justice Rehnquist: General Ieyoub--
Mr. Ieyoub: Yes, Your Honor.
Chief Justice Rehnquist: --what is the State's position, if it has one, on the suggestion of Justice Dennis, or Judge Dennis, who I believe dissented in the court below, that if this is such a problem the Federal court could simply enjoin a declaration that the candidate was elected?
You can't do that any more, but you could still conduct a primary.
Mr. Ieyoub: That's correct, Your Honor.
Chief Justice Rehnquist: That's correct, I know, what Judge Dennis said.
What's the State's reaction to it?
Mr. Ieyoub: --The State's reaction is that that can be done, and the State's reaction would be that that... we could absolutely do that.
We could have the October primary and just simply not say, well, they're not declared elected, but that they would be declared elected as of the Federal Election Day.
The State would do that, Your Honor.
Justice Stevens: But would they do that with or without putting their names on the ballot in the November election?
Mr. Ieyoub: They--
Justice Stevens: It doesn't seem to me it's much of a change if you simply make your declaration later but don't let anybody vote after the October date.
Mr. Ieyoub: --We could certainly put the names of the candidates on the ballot, though.
Justice Stevens: And give them--
Justice Breyer: --And what happens if the other one wins?
Mr. Ieyoub: I'm sorry, Your Honor.
Justice Breyer: Suppose A gets a majority of the votes in the primary, and then we put their names on the ballot again in November, but more people turn out, and this time B wins.
Justice Scalia: Or there's a big scandal in between, and who came in second now comes in first.
Justice Breyer: Right.
Mr. Ieyoub: Well, Your Honor I--
Justice Scalia: You've got... you're--
--You'd only put one name on the November ballot.
Mr. Ieyoub: --That's exactly--
Justice Scalia: Isn't that the answer?
You'd only put one name on.
Mr. Ieyoub: --That's exactly right, Your Honor.
Justice Scalia: So it would be an election with--
Mr. Ieyoub: That's right, and that's basically what happened in--
Justice Scalia: --Yes or no, I guess.
Mr. Ieyoub: --That's exactly right, Your Honor.
We would put one name on the--
Justice Kennedy: Is there a write-in procedure in your State?
Mr. Ieyoub: --No, Your Honor, there is not.
There's not a write-in procedure.
But my time is--
Justice Ginsburg: Well, what about conforming by putting the two top names, so you have your open primary, as you call it, in October, and then in November, number 1 and number 2 get on the ballot.
You could do that, too.
Mr. Ieyoub: --That--
Justice Ginsburg: --You put the second... the one who took second place on even--
Mr. Ieyoub: --Even if they don't--
Justice Ginsburg: --Right.
Mr. Ieyoub: --Even if there's a majority?
Justice Ginsburg: Right.
That would be compliance, too, I guess.
Mr. Ieyoub: Yes, Your Honor, that would be compliance.
Justice Scalia: Do you want a Federal court to pick which one of these things will be compliance and enjoin--
Mr. Ieyoub: No.
No, Your Honor.
Justice Scalia: --Well then, you don't agree with the dissenting judge below.
Why should we figure out how you should come into compliance?
Mr. Ieyoub: Well, Your Honor, I'd--
Justice Scalia: You know, what your State legislature considers severable from the rest of the scheme.
Mr. Ieyoub: --I suggest that you shouldn't, that it's really Congress.
If Congress wishes to do that, it may do that at any time.
Chief Justice Rehnquist: I don't think Judge Dennis' position was that he would leave it to the State to decide.
He... I understood him to say that you could accept all of your opponent's arguments and still solve the constitutional problem by simply declaring unconstitutional that part of the Louisiana statute which declared the person at the October primary who won to be elected, and just say that wasn't so, that there would be only one name on the ballot in November, but the person wouldn't be actually elected until then because you would strike out the declaration.
Mr. Ieyoub: Mr. Chief Justice, that's exactly right.
That's what Justice Dennis said, but prior to the time he said that, he disagreed with the holding of the other two judges that it was in any way a conflict, or that our system was in any way in conflict with the Federal Election Day statute, and we certainly hold to that particular position, that the State has the primary authority from the Court's earliest reading of Article I, section 4, that the State has the primary authority to set the manner of elections.
Justice Stevens: May I ask if it also means you would take the position that they could say whoever has the most votes in the primary shall be the only candidate whose name appears on the November ballot?
Could you do that?
Mr. Ieyoub: Under our present--
Justice Stevens: No, it's not under... but as a matter of... consistent with your legal position as a matter of constitutional Federal law and all the rest of it.
Could Louisiana enact a statute that said the person who has the highest votes in the primary is the only person whose name may appear on the November ballot.
Mr. Ieyoub: --I think that it could do that, Your Honor.
And now my time is short, so I'll try to conclude.
We say that the unfounded fears of the Fifth Circuit majority are contrary to this Court's earliest reading of Article I, section 4, and to this Court's harmonizing manner of interpreting Federal statutes and companion State election regulations.
I mean, of course, as in Ex parte Siebold.
Of course regulations made by Congress are paramount and supersede those of the State, but only... and here I quote one of this Court's great judges, Justice Bradley... but only insofar as the two are inconsistent and no farther.
We say there is no conflict, no clash between the Federal Election Day and Louisiana's primary law.
As Justice Bradley said so well in Siebold, let a spirit of national as well as local patriotism prevail.
Let unfounded jealousies cease, and we shall hear no more of the impossibility of harmonious action between the national and State governments on a matter on which they have a mutual and vital interest.
If the Court please Your Honors, the judgment below must be reversed.
Argument of M. Miller Baker
Chief Justice Rehnquist: Thank you, General Ieyoub.
Mr. Baker, we'll hear from you.
Mr. Baker: Mr. Chief Justice Rehnquist, and may it please the Court:
The key issue in this case, Your Honors, is that this is not an attack on Louisiana's prerogative to maintain this type of election system.
Justice Ginsburg got it exactly right.
Louisiana can maintain what it has, but it has to conform it to the requirements of Federal law, and that would mean this primary, which is really an election, on Federal Election Day, with a run-off thereafter as required by section 8.
Justice Kennedy: There's about 20 percent of the cases where a runoff is held now.
Mr. Baker: That's correct, Justice Kennedy.
Justice Kennedy: So under your proposal on... and I take it those are the closest elections, so under your proposal the closest elections are the one where there's the lowest turnout.
Mr. Baker: I'm not sure I understand the question, Justice Kennedy.
Unknown Speaker: Well, if the close elections are this, this 20-percent category, under the corrective remedy that you've just proposed the closest elections are going to be decided by the ones with the lowest turnout.
Mr. Baker: That's correct.
Justice Kennedy: Is that the only corrective, or could... would it suffice in your view if Louisiana simply certified the successful candidate on the Federal Election date?
He had to be alive, and then he's to get certified?
Mr. Baker: Well, it... Justice Kennedy, with respect to the former, the hypothetical you gave me, the Federal statute requires that any runoff election be held at some point after the--
Justice Kennedy: I understand that.
Mr. Baker: --And the fact that turnout may be lower is inconsequential to the Federal statutory scheme.
That's just a fact of life, and that... we saw that in Georgia in 1992, where Georgia had an election for the United States Senate in which no candidate obtained a majority of the vote in November and there was a run-off thereafter, at which point the turnout was actually lower.
Justice Kennedy: Mr. Baker--
--What about the next point?
Can... would it be satisfactory if this election scheme basically stayed in place but the winner was just certified as of the General Election date?
He had to be alive, his name on the ballot?
Mr. Baker: Not at all, Justice Kennedy, and... not at all, because the real election, the de jure election, is in fact still on--
Justice Kennedy: Well, suppose it's not de jure any more.
He's certified under... Louisiana changes the law simply to certify the winner on the Federal Election Date.
Mr. Baker: --If there's no opportunity to cast... if there's no possibility for a choice on Federal Election Day, Louisiana has foreclosed an election on Federal Election Day, and it's legally impossible--
Justice Kennedy: Is that with every single election?
Mr. Baker: --Well, if--
Justice Kennedy: With every single candidate?
In every one of the States there has to be an opponent on the final election date, on the Federal election date?
Mr. Baker: --State law has to provide for the possibility of an election.
That is, there has to be the possibility of an election on Federal Election Day.
Justice Scalia: Well, there is on Louisiana.
If the... if one person doesn't get a majority, there will an election on Election Day.
Mr. Baker: That's--
Justice Kennedy: 20 percent of the time.
Mr. Baker: --That's correct.
Justice Scalia: So you have no problem.
Mr. Baker: I have... well--
Justice Scalia: You can go home.
Mr. Baker: --Your Honor, the statute doesn't say you can have an election for Federal office only 20 percent of the time.
It says in every Federal election the election must occur on--
Justice Scalia: So you demand more than a possibility of an election on Election Day.
What do you demand?
Mr. Baker: --An election, Justice--
Justice Scalia: An election on Election Day.
Then what do you do about the States that have a filing requirement and only one person files?
Mr. Baker: --The State has provided for the possibility--
Justice Scalia: Ah, you're back to possibility, now.
Which is it?
Is a possibility enough, or does it have to be a certainty?
Mr. Baker: --A possibility is sufficient as long as State law hasn't foreclosed--
Justice Scalia: Do you have a possibility here?
How do you distinguish the... I mean, I wonder, you know, where this case leads us to.
What do you do with those... what do you do with the State where only one... both parties nominate the same person?
Mr. Baker: --Where both parties have nominated the same--
Justice Scalia: You have party primaries, closed party primaries--
Mr. Baker: --Yes, sir.
Justice Scalia: --And both of them nominate the same person, Dwight David Eisenhower, or whoever, you know, some great American--
Chief Justice Rehnquist: --Or Earl Warren in California.
Justice Scalia: Or Earl Warren in California, and comes Election Day there's no election on Election Day.
Mr. Baker: If... well, there's an election to the extent that State law provided for the possibility of more than one person being on the ballot.
An election was provided for.
Through the State's ballot access rules, only one person appeared to qualify for--
Justice Scalia: Through Louisiana's primary rules only one person qualified.
I mean, it's the same thing.
Mr. Baker: --That's not correct, Justice Scalia.
Through Louisiana's... Louisiana's primary is not a qualifying primary.
It elects Members of Congress in October.
Only to the extent that there is a failure to elect in the Louisiana primary is, in fact, there an election in October.
Justice Kennedy: So you--
--But in answer to my question you said that if the certification laws were changed, and you just... and Louisiana just delayed certification until the General Election, that would not be sufficient.
Mr. Baker: That's... it's not a question of timing or certification, Justice Kennedy.
It's a question of the timing of the election that selects the Member for office.
Justice Kennedy: It's a question of what is a de jure election, I suppose, and--
Mr. Baker: On--
Justice Kennedy: --it's very clear that there is a possibility that the de jure election will be in... on the Federal election date, and you've indicated that's all that's necessary, and that's what Louisiana has.
Mr. Baker: --No, Justice Kennedy.
Justice Kennedy, Louisiana has a conclusive election in its October primary.
Justice O'Connor: Well, only if some candidate gets a majority.
Mr. Baker: --But--
Justice O'Connor: I mean, you're all tangled up in your possibility language.
It doesn't wash.
It doesn't fly.
You're... I don't know what you're up here arguing.
Mr. Baker: --Because the--
Justice O'Connor: There are statutes, as my colleagues have indicated, where you could end up with a two-party primary, and the same candidate on the ballot in November, so that it's only one name, or you could have a situation where one party doesn't make a nomination, and again there's only one name.
Mr. Baker: --Your--
Justice O'Connor: Is that a problem?
Mr. Baker: --No, it's--
Justice O'Connor: And Louisiana presumably could go to a system whereby they still have their primary election but they provide that the... if there is a majority winner at the primary election date, that name has to go on the General Election ballot before it's official that there's an election.
Now, will that do it?
Mr. Baker: --No, Justice O'Connor.
In response to your hypotheticals, those are all situations in which the party primaries are not conclusive as a matter of law.
The party primaries have merely nominated a person who may appear on the November ballot.
The Louisiana October primary is conclusive as a matter of law.
Chief Justice Rehnquist: Well then, all then... if that's your argument, then all Louisiana would have to do to meet your contention is to say the October primary isn't conclusive.
The person still has to be alive in November and be on the ballot, and it's that time that he's officially elected.
Mr. Baker: If it's not possible, if it's not legally possible for the winner of the primary in October to lose in November, if it's not... if a State doesn't allow for some other candidate to appear on that ballot, if by winning that October primary you have won the election, that... you're selected for office, that's the violation of the Federal statute.
Chief Justice Rehnquist: Well, but then you're... then you have trouble dealing with the question whether... where both parties nominate the same candidate, and there is only one candidate on the November ballot.
Mr. Baker: But that satisfies Federal law because those primaries, Chief Justice Rehnquist, were not conclusive.
They did not select, as a matter of law, the person for Congress.
A primary, as traditionally understood, merely selects a person to appear on a ballot, either a partisan nominee, or otherwise serves the function of... it's a ballot access funnel, and it winnows down the number of candidates who will ultimately appear on a General Election ballot, but it doesn't select Members of Congress.
An election does, and that's the crucial--
Justice Scalia: Then you're back to the Chief Justice's earlier question.
All you have to change in this law is the determination that he's elected, and just say, you know, he'll... this is just a primary, and he'll be the only candidate on the ballot in November.
I don't see how you can get around that, unless you want to repudiate those State laws that allow partisan primaries, both of which can name the same candidate.
Mr. Baker: --Justice Scalia, we don't--
Justice Scalia: That candidate's the only name on the ballot, and the same would be the case in Louisiana.
Whoever gets a majority in the primary, his will be the only name on the ballot.
What's the difference?
Mr. Baker: --The difference is, Justice Scalia, is that the hypotheticals you gave me, the two... there are two partisan primaries.
The part... that each provide a place on the ballot.
Neither primary is conclusive as a matter of law.
This Louisiana October primary is conclusive, and merely delaying the--
Justice Scalia: I understand that.
But I'm asking the Chief Justice's question.
If all that you changed about Louisiana law was the statement that the primary is conclusive if someone wins a majority, if you just change that and say he's not elected then, he will be the only name on the ballot in November, would that make you happy?
Mr. Baker: --No, Justice Scalia.
Justice Scalia: Then you've got to tell me why that's any different from the two-party primary that puts one name on the ballot in November.
Mr. Baker: It's not... Justice Scalia, that's not an election, because there's not the possibility... State law has not allowed for... assuming there's no write-in possibility, what section 7 requires is an election on Federal Election Day, which--
Justice Souter: But you're saying one thing more.
You're saying there's got to be a... how shall I put it +/?
a legally unconditional opportunity for voting on the November date.
That's what you're saying, isn't it?
Not merely a possibility.
You're saying that the possibility has got to be legally unconditional.
Now, if the voters make a choice, as in the Earl Warren case, that would not be a problem under your criteria, because the law was not precluding the possibility of the voting that you're talking about.
You're saying that the law cannot preclude that opportunity, and this law does in the 80 percent of the cases.
Isn't that what you're arguing?
Mr. Baker: --Absolutely, Justice Souter.
Justice Breyer: All right, and do we have to get into this other issue?
I mean, I don't know, maybe in California my recollection is they all provided for writeins.
I don't know whether they do or don't.
Maybe all these other... I don't know what Louisiana will do.
I mean, here the statute says now a candidate who receives a majority of the vote that's cast for office in a primary election is elected.
Now, do we have to go into the question of what happens if that is illegal under the statute and they decide to fix it up by declaring him elected or not?
Is it necessary or not necessary for us to go into that?
Mr. Baker: It's not necessary, Justice Breyer.
A declaratory... affirming the court of appeals, and the declaratory judgment of the court of appeals as satisfactory, then it will be the prerogative of the--
Justice Breyer: In other words, the court of appeals just dealt with this language, so if they decide to fix it up through this... saying, okay, they changed the words, so a candidate who receives the majority of the votes cast for office in a primary election will have his name placed on the ballot in November and no one else will, and there are no write-ins.
If that's how they fix it up, then we have to deal with this question we're now discussing?
Mr. Baker: --Absolutely, Justice Breyer.
Chief Justice Rehnquist: We'll also have to deal with the writing of an opinion in this case.
I mean, we can't simply say in one word, the judgment of the court of appeals is affirmed.
We customarily give reasons why we're affirming.
Justice Scalia: Sometimes.
Mr. Baker: I wouldn't object to that, Chief Justice Rehnquist.
Chief Justice Rehnquist: Well, what reasons would you suggest we give for affirming?
Mr. Baker: The reasons that I would provide is that the State statute is in hopeless conflict with Federal law.
Federal law requires a uniform national date for congressional elections, Louisiana law provides for conclusive congressional elections in October that cannot be reconciled--
Justice Breyer: Mr. Baker, did I understand you to agree with me... I think General Ieyoub did... that when you have the two things, one is everybody votes in this, call it what you will, in this thing, and to be in the running you must run in this thing, that whatever label you put on it, that is an election, unlike a primary, where only Democrats can vote in one, Republicans can vote in the... they're not specific.
This is everybody who wants to vote votes in this.
Everybody who wants to run runs in this.
What is that, and if the answer is, an election, then you have a conflict with the Federal statute.
Mr. Baker: --Absolutely, Justice Ginsburg, which leads me to respond to a point made by my colleague, the Attorney General.
The Attorney General suggested that partisan primaries were unknown in 1872, and he's absolutely right, so this is not a situation of applying old law to new facts.
We're applying old law to, in fact, an election system that Congress exactly understood at the time it enacted this statute.
Congress... in 1872 there were elections.
There were no pre-election primaries.
But Congress also anticipated that States in these elections might have majority vote requirements.
Justice Breyer: But let me just... are you--
Mr. Baker: Yes.
Justice Breyer: --If you are, let me go back to the Chief Justice's question, because I was asking seriously whether we have to reach it, and to force you to focus on it, I'll say, now we are writing the opinion in your favor, hypothetically, and we come to the section where... remember the alternative I gave you you said we didn't have to reach, they change it, all right, to say only this name appears on the ballot and no write-ins?
Mr. Baker: Correct.
Justice Breyer: All right.
It is argued that it would be fine to have a statute that says, no write-ins, and the only name on the ballot, and that this statute is the same, but that argument is unconvincing, because... and now I want you to fill in the blank.
That's why I'm uncertain whether we have to reach it.
How would you fill in the blank?
Mr. Baker: The argument is unconvincing because the election that selected the Member for office was held in October, and there was no election in November, Justice Breyer.
Justice Ginsburg: Mr. Baker, maybe I misunderstood you, but I think the premise of Justice Breyer's question is that it would be okay to comply just by saying that the one who gets the most votes in October is on the ballot, and nobody else, and nobody else qualifies.
I thought your answer to that was that that would not be compliance with the Federal elections statute.
Mr. Baker: That's... maybe I misunderstood Justice Breyer's question.
Justice Ginsburg: So--
Mr. Baker: That would not comply with the Federal--
Justice Ginsburg: --But it would if you said the two top runners.
Mr. Baker: --That's... there are numerous correct, Justice Ginsburg... there are numerous possibilities for fixing this system so that it--
Justice Ginsburg: I see two.
One is, you move the... what they call the open primary to Election Day.
Another one is, you put the top two.
Justice Scalia: Or maybe the first and the last.
I mean, that would give you an election on Election Day, wouldn't it?
Justice Souter: What if you had a scheme in which the Louisiana statute said, whoever gets a majority in October will be on the November ballot and will be the only name on the November ballot, and there will be no write-ins, but unless in November that person gets at least one vote, that person will not or cannot be elected, would that satisfy the Federal law?
The reason I ask the question is, I think what you're saying is, there's got to be voting on the November date which is operative to elect, and in my silly hypothetical there would in fact be voting in November that would be operative to elect, and so that's why I'm asking.
Is that sort of the nub of what you're arguing here?
Mr. Baker: --It would be... well, under your hypothetical it would be legally possible to be elected or not be elected if a candidate did receive a vote, as I understand your hypothetical.
Justice Souter: That's right.
Nobody votes for the October winner, and therefore no one is elected for that office.
Mr. Baker: Which is distinguished from most... all right, under that... if State law were as you posited it, Justice Souter, and it would only take one vote to elect this person, this person was on the ballot, there would be an election on Federal Election Day, but it would not... there would be serious, profound questions raised whether or not this election satisfied this Court's First and Fourteenth Amendment jurisprudence--
Justice Souter: What is the reason for that?
Are you saying the reason is there's got to be a choice as between at least two candidates on that date?
Mr. Baker: --An election, by definition, presupposes a choice.
Justice Souter: Or at least an opportunity so far as State law is concerned for a choice.
Mr. Baker: --Correct, Justice Souter.
Justice Scalia: Now, wait a minute, there is a choice.
You... I mean, you don't say there has to be a choice, because you say it's okay if you have two separate primaries and you have no choice on Election Day.
Mr. Baker: But what has happened... two separate primaries that have elected the same nominee--
Justice Scalia: Yes.
There's no choice.
Mr. Baker: --The State law has not prevented that choice, Justice Scalia.
It's the choice of the voters in a preceding... State law has allowed for the possibility of an election in November.
Chief Justice Rehnquist: Why should it make any difference that in one hypothesis the reason you have only one name is on the ballot is there were two separate primaries and in both of those the same person, and in the Louisiana case there were a number of people on the ballot and only one person survived.
Mr. Baker: The difference, Justice... Chief Justice Rehnquist is that the... that those primaries, neither primary elected as a matter of right the person to office.
Each primary merely selected a person who happened to be the same person to appear on that ballot.
Chief Justice Rehnquist: And why does that make a difference?
Mr. Baker: Because the State law has provided for its conclusive election in November.
Justice Stevens: May I ask a question... we're talking about a lot of hypotheticals here.
Since the decision of the court of appeals in this case, do you know whether or not the Louisiana legislature has given any attention to what remedy it might provide for this, or are they just sitting waiting for us?
Mr. Baker: Yes, Justice Stevens, they looked at this in the most recent legislative session.
There were some efforts to address the problem, and then they decided apparently to wait until this Court's disposition of this case, so the legislation went nowhere.
Justice Breyer: Do you know... have you looked up, or do you know how many States other than Louisiana do not allow write-ins on the November election?
Mr. Baker: I don't know the answer to that, Justice Breyer.
Justice Breyer: Do we know if there are any others?
Is it common?
Mr. Baker: I know that Hawaii doesn't allow--
Justice Breyer: Does not?
Mr. Baker: --Does not allow write-in--
Justice Breyer: So there are other States.
Mr. Baker: --That's--
Justice Breyer: There are other States that don't allow write-ins in the primaries?
Mr. Baker: --Correct, Justice Breyer.
Justice Breyer: Well then, we may have to reach the--
Mr. Baker: Section 8--
Justice Scalia: --Would you be happy if there were a write-in provision?
I mean, if there were just a write-in?
Mr. Baker: --Absolutely, Justice Scalia.
That would satisfy... there would be an election.
Justice Scalia: There would be a real election.
Mr. Baker: There'd be an election.
Now, whether or not that election--
Justice Scalia: So I guess you'd be satisfied if we allowed the... you know, the first and the last in the primary to be put on the ballot.
Mr. Baker: --If--
Justice Scalia: Anything.
Just pick a name.
Mr. Baker: --There... well, not anything, Justice Scalia.
There has to be the... as long as there is the possibility for a choice in November--
Justice Scalia: --Right--
Justice Breyer: --That's the problem.
I can understand why you'd want to limit it, because if you can limit it any way at all, even with one vote, or even with the first and last, you've distinguished your case.
I understand that.
Now we don't have to reach the others.
But what's worrying me now is that if we say here there is no election, it's not an election, then there may be X other States that suddenly will discover they don't have an election in November for the reason that it is more than theoretically possible that both parties have selected the same nominee, and that's what is driving this concern, and at the moment I don't know the answer to that.
It seems to me a genuine concern, and that's... I mean, everybody's asking you to focus on it.
I don't want to give up before getting the most out of your thought on this that I can.
Mr. Baker: --Well, Justice Breyer, if a State's ballot access selection device is not conclusive as a matter of law, that ballot access selection device in the form of a primary would pass muster under the Federal statutes.
Justice Breyer: In other words, you're saying that if Hawaii or other States that don't have write-ins in November do end up with the Democratic and Republican parties selecting the same candidate, that their election will be invalid.
That's your position.
Mr. Baker: That's not my position, Justice--
Justice Breyer: All right.
Well, I... then... it sounds as if it is.
Mr. Baker: --Well, Justice Breyer, that--
Justice Scalia: It ought to be, if I understand the rest of your argument, or if it isn't, then the rest of your argument has to be different.
I... You keep--
Justice Breyer: --I think if people had focused on this we'd have a few briefs here from other States that would be concerned about it, and so I'm a little uncertain what to do.
It seems to me it's coming up for the first time now.
Justice Ginsburg: Mr. Baker, I thought that you had answered my question that this is an election when everybody votes.
I thought that was your distinction between party primaries that happen to come up with the same candidate but not everybody votes together, and this, which you agreed, I thought, that it is an election because everybody votes and everybody who's running must run, that those two things in combination equal an election, and if that's so, then you would distinguish your case from the party primaries that may happen to come up with the same candidate.
Mr. Baker: --That's correct, Justice Ginsburg, and for the added reason that those party primaries don't as a matter of law select the congressional officer.
They simply have selected a nominee who will appear on a ballot, and if by happenstance the same person has been chosen by the respective Democratic and Republican primaries, the election is still held in... the conclusive election is held in November, and the primaries were not legally... were not the legal selection of the congressional officer.
Justice Ginsburg: And Louisiana has been candid in describing its system, because it says, if you have somebody who comes out of this race, whatever it is, with a majority vote, that person is elected.
Mr. Baker: Correct.
That's correct, Justice Ginsburg, and section 8, the companion statute to section 7, 2 U.S.C. section 8, is a statute that answers this... that gives us the answer in this case.
Elections in 1872 were like the elections that Louisiana has today.
Everybody appeared at the polls.
In most States, a plurality election was sufficient to elect a person to Congress, but a number of States have majority vote requirements as does Louisiana today, so therefore Congress inserted section 8 into title 2 to provide for the contingency of a failure to elect on Federal Election Day, and that's the statute that Louisiana could follow and have its post Federal Election Day run-off if it so chose to do that.
If there are no further questions, that concludes my argument.
Rebuttal of Richard I. Ieyoub
Chief Justice Rehnquist: Thank you, Mr. Baker.
General Ieyoub, you have 2 minutes remaining.
Mr. Ieyoub: Mr. Chief Justice, and may it please the Court, I have no rebuttal.
Chief Justice Rehnquist: Thank you.
The case is submitted.