Bush v. Palm Beach County Canvassing Board - Oral Argument

Argument of Theodore B. Olson

Chief Justice Rehnquist: We'll hear argument this morning in number 00-836, George W. Bush vs. The Palm Beach County Canvassing Board.

Mr. Olson.

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

These laws have been formulated by the Florida legislature pursuant to an express delegation of authority, to wit, by the United States Constitution.

The election code that the Florida legislature developed conformed to Title 3, Section 5 of the United States Code.

That provision invites states to devise rules in advance of an election, to govern the counting of votes and the settling of election controversy.

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

Mr. Olson: We do, Justice O'Connor.

It is a safe harbor, but it's more than that.

And Section 5 of Title 3 needs to be construed in connection with the history that brought it forth...

Justice O'Connor: Yes.

But I would have thought it was a section designed in the case of, some election contest ends up before the Congress, a factor that the Congress can look at in resolving such a dispute.

I just don't quite understand how it would be independently enforceable.

Mr. Olson: That's why I've mentioned the context in which that section was adopted.

In light of the extreme controversy that was faced by this country as a result of the 1876 election, and as this Court knows, that election was very close and led to controversy, contest, discord, Congress was very much concerned about the possibility of that happening again, and one of the reasons...

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

Mr. Olson: Justice Kennedy, I submit that it is much like a compact that Congress is offering in the form of Section 5, yes.

If you do these things, certain things will happen.

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

Justice Kennedy: But what is there in the opinion of the Supreme Court of Florida that indicates that it relied on this Federal statute in the reasoning for its decision and in its judgment?

Mr. Olson: Well, I think the fact is that it did not.

What it did was it disregarded the compact.

When the state adopted a code of ethics, or a code of election procedures to govern the election and the determination of disputes pursuant to the election, it brought itself into that safe harbor and guaranteed to the voters and the candidates in that state that the controversy and turmoil that infected this country after the 1876...

Justice Kennedy: Well, we are looking for a Federal issue, and I thought that you might have argued that the Secretary of State was instructed by the Supreme Court not to jeopardize the state's chances and then cited 3 U.S.C. Sections 1 through 10.

And so if the, if the state supreme court relied on a Federal issue or a Federal background principle and got it wrong, then you can be here.

Mr. Olson: Well, I certainly agree that it mentioned those provisions.

I'm simply saying that it blew past the important provisions of Section 5 and the benefits that Section 5 gives to the states to the voters in that state and to the people running for office in that state.

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

Justice Scalia: Mr. Olson, suppose a less, a less controversial Federal benefit scheme, let's say the scheme that says states can get highway funds if, if they hold their highway speeds to a certain level, all right?

And suppose you have a state supreme court that in your view unreasonably interprets a state statute as not holding highway speed to the level required in order to get the benefit of that safe harbor.

Would you think that that raises a Federal question and that you could appeal the state court decision here because it deprived the state of the benefit of the highway funds?

Mr. Olson: No, I don't think so.

Justice Scalia: Why is this any different?

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

Secondly, as this Court has stated...

Justice Scalia: Well, let's just talk about Section 5.

I mean, the constitutional question's another one.

Why is Section 5 in that regard any different from the highway funding?

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

Justice Kennedy: But just talk about the statutory issue.

I assume that if we worked long enough with Justice Scalia's hypothetical, we could find a case where a court adjudicated with reference to the Federal principle and got the Federal principle wrong.

Did... Indiana vs. Brand and that kind of thing.

Did that happen here?

Mr. Olson: Well, I think that the state did not pay, the state supreme court did not pay much attention to the Federal statute.

It was obviously aware of it.

It did get the Federal principle...

Justice Kennedy: Well, then there is no Federal constitutional issue here.

Mr. Olson: Well, there is a Federal...

Justice Kennedy: Pardon me, statutory issue.

Mr. Olson: Well, we believe that there is, Justice Kennedy, because although the state recognized it, it blew right past it.

The state legislature adopted the code that the Section 5 of Article 3 of Title 3 invited it to do.

The state supreme court, which had no right under the Constitution, but I can't divorce the constitutional provision from Section 5, then overturned the plan that the state enacted through its legislature to make sure that what happened down in Florida was not going to happen.

And so what the state supreme court did, knowing full well that these provisions existed, overturned the carefully enacted plan by Florida.

Chief Justice Rehnquist: Mr. Olson, do you think that Congress when it passed 3 U.S. Code, intended that there would be any judicial involvement?

I mean, it seems to me it can just as easily be read as a direction to Congress, saying what we are going to do when these electoral votes are presented to us for counting.

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

Justice Stevens: Mr. Olson, your... your submission is based on the premise that the Florida court overturned something that the statute did not.

Is it not arguable, at least, that all they did was fill gaps that had not been addressed before?

Mr. Olson: Justice Stevens, I don't think that in this case that's even remotely arguable.

What the state supreme court did is take a set of timetables, a set of provisions that...

Justice Stevens: Yes.

And the first one was the mandatory... is it your view still that the shall date controls in all respects?

Mr. Olson: No.

Not necessarily.

But the 102... there is the two provisions, Section 102.111 and 102.112.

111 contains the shall date, 102 contains the may date.

Justice Scalia: Correct.

Mr. Olson: Both of those statutes, both of those provisions say that the returns must be, or shall be filed by a certain deadline.

The shall and the may provisions simply relate to the possible remedy.

We submit that under either interpretation the Secretary of State of Florida either must or shall ignore those returns, or may set those aside in her discretion.

Justice Stevens: Does that mean if there were an act of God that prevented the returns from being filed that she would have discretion either to accept or reject the returns?

Mr. Olson: Yes, I believe...

Justice Stevens: She would have the discretion?

Mr. Olson: Yes.

Justice Stevens: Would she be compelled in that event to accept the returns?

Mr. Olson: I don't think so.

She took the position...

Justice Stevens: She has the total discretion either to accept or reject?

Mr. Olson: That's...

Justice Stevens: Is there any circumstance in which she would be compelled to accept a late return?

Mr. Olson: I don't know of any.

I haven't thought of any, Justice Stevens.

Justice Stevens: Well, you are arguing in effect that it's a mandatory deadline.

Justice Scalia: I wonder if you really mean it's mandatory.

Mr. Olson: Well, the problem is that it's... what we are saying is that either it's mandatory, in which case she could not accept them.

Justice Stevens: But you don't know whether it's mandatory or not?

Mr. Olson: Well, the Florida Supreme Court and what the circuit court did in that case, it said that it wasn't... and we'll accept this for purposes of this argument that it wasn't...

Justice Stevens: Yes, but one of the things that's of interest to me is the extent to which you say there was a change in the law.

It seems to me that in order to answer that question you have to know what your view of the law was before this all happened.

Mr. Olson: I think that we can answer that this way, is that whether it was shall ignore or may ignore.

It was not must accept.

Justice Stevens: Under any circumstance it was not must?

Mr. Olson: No, under no circumstances was it must accept.

Now...

Justice Scalia: Even in an act of God or fraud?

Mr. Olson: I don't believe so, Justice Stevens.

Chief Justice Rehnquist: Okay.

Justice Breyer: Mr....

Isn't the law in Florida like as in most states, and in the Federal government, that when an official has discretion, may accept or may not accept, that has to be exercised within the limits of reason?

Mr. Olson: Yes.

Justice Breyer: Well, then, isn't it possible that when the court says she must accept under certain circumstances, what they mean is outside those circumstances, given the circumstances here it would be unreasonable to refuse?

Mr. Olson: Well, what the court did was so constrain those circumstances, virtually to make them nonexistent.

Justice Breyer: All right.

So then what you're arguing about is a determination by the state court of Florida as to what the circumstances are under state law where the action of a state official would or would not be reasonable.

Mr. Olson: I think that... yes, but I think that it has to be looked at in the context in which that was done when the state supreme court so constrained and says in its opinion shall accept these late returns until 5 p.m. on November 26th, and in the context there was no discretion left for the Secretary of State at all.

Justice Ginsburg: Mr. Olson, may I ask you, because you've been skipping over what I thought was a key piece of the Florida legislation.

The Florida Supreme Court said, there's the deadline, and that conflicts with another provision of this law, the provision that says there shall be under certain circumstances recounts, and then there's a rather detailed description of the process that's necessary, the time line for when you can ask the recount is on the 6th day.

Mr. Olson: Up to.

Justice Ginsburg: Yeah, up to.

And it would be impossible in a populous county to in one day do what the statute instructs must be done when there's a recount.

The Florida Supreme Court said, it's right in its opinion, there's two conflicts, and the first one they mention straight out on page 21A of your appendix, is that there has to be a reconciliation between this, yes, there can be recounts and, yes, there's a deadline.

So they are trying to reconcile two provisions.

Mr. Olson: The first part of the recount provision to which you're referring, Justice Ginsburg, says may conduct a recount.

Under certain circumstances after the sampling part of that process is taken, if it's taken in the county canvassing board's discretion, then under certain circumstances it's supposed to go forward with a more fulsome process, but the legislature being fully aware of the recount provisions and the importance of... this ties in with the protest period for the election, which overlaps the recount provisions, and the contest provision for the election, and the fact that all of this has to be done in the context of a presidential election.

Under any other kind of election, these things wouldn't be nearly as important, but we have very important timetables, and as this Court has said a presidential election is so important to the rest of the nation, and there is such high Federal interest in accomplishing these things in the right way, what the Florida legislature did is balance the protest period, the recount period with the contest period, and state that there shall be certain deadlines before which certain things need to be done and after which, so what those two statutes say is that there may be a recount, but that there shall be compliance with the time deadline.

It also says that...

Justice Ginsburg: But that's something that one can certainly argue.

My problem is, one could also argue what the Florida Supreme Court said, and I do not know of any case where we have impugned a state supreme court the way you are doing in this case.

I mean, in case after case we have said we owe the highest respect to what the state says, state supreme court says, is the state's law.

Mr. Olson: This is a very unusual situation, Justice Ginsburg, because it is in the context of a presidential election, and it is in the context of Federal rights.

This Court has, in the areas in which we've described in our brief, undertaken to review the meaning and the effect that the state supreme court or state court decision under certain circumstances.

We submit this is one.

What the Florida Supreme...

Justice Ginsburg: But I said, and even in the very cases that you cite, because I checked them, that we owe the highest respect to the state court when it says what the state law is.

Mr. Olson: Yes, but then the Court has also said, then we go on to see the extent to which what the state court did, as we cited in the Lindsey case, for example, in the ex post facto context, we go on to see what the import of that is in connection with the Federal right.

I would emphasize that what the Florida Supreme Court did is basically essentially say, we're rewriting the statute, we're changing it.

Justice Kennedy: Does the Secretary have any flexibility to accommodate the statute to the exigencies of the presidential election?

The Secretary of State.

Mr. Olson: The Secretary of State did.

It doesn't... she doesn't much anymore because what has happened... and I would like to finish that one point, that the Florida Supreme Court said we are not going to be bound by technical statutory requirements or what the supreme court called hyper-technical statutory requirements.

Instead, we are going to resort to the will of the people, the will of the electorate, the will of the voters, so to speak, and we are going to... because we can't rewrite the statute, but we are going to partially rewrite the statute, we are going to resort to our equitable powers.

So what... and among the things that the court did, and there are a range of them, as I have indicated, they took away the discretion of the Secretary and instructed her to accept these manual recount returns.

Justice Stevens: Mr. Olson, on the equitable powers, they were doing that in setting a new deadline, and I don't think you would argue the case would have been more acceptable if there had been no deadline?

Mr. Olson: No, it wouldn't have been, but...

Justice Stevens: And on the fight between may and shall, they relied on four traditional canons of statutory construction and not equity at all.

Mr. Olson: They recited four canons of statutory construction, Justice Stevens, but when they said they use those construction... canons of statutory construction to say that the words may and shall mean shall not, that is not a reasonable exercise of statutory construction.

I think what the... it's relatively obvious that what the supreme court did is exactly what Article... Section 5 of Article III intends not to happen.

Change the rules.

Justice Scalia: I don't read their opinion that way, Mr. Olson.

It seems to me that the portion of their opinion dealing with statutory construction ends with a conclusion that the Secretary has discretion.

The portion of the opinion employing the canons of construction does not place any limits upon the Secretary's discretion.

Mr. Olson: Well, yes, I agree with that up to a point, but then it says that she must accept these returns that are after the deadline.

Justice Scalia: That was not on the basis of any canons of statutory construction.

That was on the basis of the state's constitution.

Mr. Olson: That's right, but... so there was both going on, and what the court was bound and determined to do was to get to a consequence that the court determined was consistent with the will of the people, irrespective of what the statute...

Justice Ginsburg: Mr. Olson, would you agree that when we read a state court decision, we should read it in the light most favorable to the integrity of the state supreme court, that if there are two possible readings, one that would impute to that court in judicial behavior, lack of integrity, indeed dishonesty, and the other one that would read the opinion to say we think this court is attempting to construe the state law... it may have been wrong, we might have interpreted it differently, but we are not the arbiters, they are.

Mr. Olson: I would like to answer that in two ways.

In the first place, I don't mean to suggest, and I hope my words didn't, that there was a lack of integrity or any dishonesty by the Florida Supreme Court.

What we're saying, that it was acting far outside the scope of its authority in connection with an exercise of power that is vested by the Constitution of the United States...

Justice Ginsburg: But if it tells us... if it tells us, we see these two provisions in conflict, they need to be reconciled.

Mr. Olson: But... under almost any other circumstances, yes, Justice Ginsburg, but in this context, in this context, we are talking about a Federal right, a Federal constitutional right, and the rights of individual citizens under the Constitution and so therefore, this Court has a grave responsibility to look...

Justice O'Connor: Mr. Olson, I'd like to get focused a little more on this same area.

If it were purely a matter of state law, I suppose we normally would leave it alone where the state supreme court found it, and so you probably have to persuade us there is some issue of Federal law here.

Otherwise, why are we acting?

Mr. Olson: Yes.

Justice O'Connor: And are you relying in that regard on Title 2?

I mean, would you like to... Article II?

Would you like to characterize the Federal issue that you think governs this?

Mr. Olson: Well, we are very definitely relying on Article II of the Constitution.

The framers of the Constitution debated long and hard.

It was one of the longest debates that took place during the formation of the Constitution.

Where should this power be lodged, in the Federal legislature, in the state legislature, at the ballot booth or what.

The one thing that was discussed and rejected by virtually everyone is that the power to select the manner in which electors would be appointed would be in the state judiciary, and we quote... in the state judiciary.

That was rejected.

The notion that it would be vested in the state judiciary was something that was rejected, and what the framers decided to do is to vest it in the state legislature and vested that authority under Article II, not just in the state, but the legislature.

Justice Kennedy: And the state legislature could vest it in the judiciary if it wanted, as I read the McPherson case, and here they have done something less.

The state judiciary said, we are going to invoke the ordinary election procedures, which you know, warts and all, it involves some interpretation by the courts and contest proceedings, et cetera.

Mr. Olson: Well, it is... yes, it said that, Justice Kennedy.

But what it did was supplant a set of rules elect... enacted before the election to govern the election, for a set of rules made up after the election.

Justice Stevens: All right.

Justice Souter: Mr. Olson, let's assume that it did that, for the sake of argument.

I want to go back to the issue that the Chief Justice raised a little while ago, and I'd like you to comment on this line of reasoning.

You've got Section 5.

Congress in the statute seems to have gone to great lengths to provide what to do in the situation that you are describing, accepting your view of the case.

Section 5, it says if you do certain things within certain times, the conclusion that you draw is going to be conclusive upon the Congress.

In Section 15, it sets out in fact an elaborate set of contingencies about what the Congress is supposed to do and can do if there is a dispute as to whether a given set of procedures in the state have conformed to Section 5.

Section 15 refers to regularity.

It refers to legality and illegality.

It looks to me as though at least at this stage of the proceedings, Congress has said if there is a question about whether this if-then provision in Section 5, construing Article II, has been satisfied, then this is the decisional tree for the Congress to follow in deciding what to do about it and in resolving challenges.

It looks to me as though at this stage of the game, the statute has committed the determination of the issues that you raise and the consequences to follow from them to the Congress.

Why should the Court, why should the Federal judiciary be interfering in what seems to be a very carefully thought out scheme for determining what happens if you are right?

Mr. Olson: Because I submit that that writes Section 5 essentially out of existence if an agency of state government, if a state legislature...

Justice Souter: No.

It doesn't write it out of existence.

It provides in Section 15 what happens if the state agency does what you say it did.

Mr. Olson: If the state agency, if the state legislature empowered by Article II of the Constitution, does what it is invited to do by Section 5, and then another agency of state government, in this case the state supreme court, comes along and upsets that scheme, yes, you have ultimate resort to the resolution of the dispute under Sections 15 of Title 3, but that's precisely...

Justice Souter: Well, you say you have ultimate resort.

But that begs the question, that seems to be precisely the resort that Congress has provided.

Mr. Olson: Well, I'm not making myself clear, I think, is that the importance of Section 5 was to invite the state to do things that would avoid the chaos and the conflict and the controversy and the unsettled situation that this country faced in 1876, and...

Justice Scalia: Mr. Olson, did Section 15 exist when McPherson was decided?

Mr. Olson: I don't know, Justice Scalia.

I don't know the answer to that, when it was adopted.

I can't recall whether it was a part of the 1887 electoral count statute or not.

I can probably answer that in regard...

Justice Scalia: That would make a difference, wouldn't it?

Mr. Olson: Well, it seems to me it wouldn't make a difference, because of this.

It might... yes, it certainly might make a difference one way, but it still wouldn't make a difference because our concept here, and I think it's quite a rational and actually the only explanation for how you can put these provisions together, Article II and Section 5, and Congress' desire to avoid the very controversy, chaos, conflict, which even...

Justice Souter: Well, but Section 15 assumes that there is controversy and chaos.

Mr. Olson: Yes.

Justice Souter: Section 15 isn't providing for challenges except in situations perhaps exactly like this one.

Mr. Olson: But that's what the country... what essentially Section 15, although it modifies it and structures it somewhat, it was still a situation that Congress was facing in 1876 when it was dealing with the Hayes-Tilden election.

Justice Souter: Right.

Mr. Olson: And by the time it got there, there were dueling slates of electors that were buying... there were exchanges and a lot of things that everyone felt was very destructive to the country.

Justice Souter: But Congress had to face the constitutional fact that under Article II, it could not, or its understanding was certainly, that it could not mandate certain state procedures.

Article II did say the legislature shall decide what they are.

Mr. Olson: Correct.

Justice Souter: So the most that Congress could do in providing for a more orderly resolution of what happened in Hayes-Tilden was to do what it did in Section 5, and that is to say if you do certain things, you can depend upon the results, recognizing that the state might not do those things.

And it then provided, or at least at the present time it is provided in Article, in Section 15, that if you don't do those things, there is a sequence of issues that can be raised to be decided by the Congress.

If Congress wanted this Court to get into the issue at this stage, it seems passing strange to me that despite all the elaborateness of Section 15 there wouldn't have been some mention of Federal litigation proceeding in the Section 15 proceeding.

Mr. Olson: I think that's a very important point, and let me make it: That Congress did say if you do these things, certain consequences will flow from it

Florida did these things, and we submit that there is, that the courts are here to protect the benefit of the bargain that Florida made when it responded to that invitation, because...

Justice Scalia: We have to separate your statutory argument from your Constitutional argument.

To the extent that you are relying just on the Constitution, do you think that Congress could by Section 15 exclude the courts from adjudicating the constitutionality of what the state has done?

Mr. Olson: No, I don't think so.

Justice Souter: But it certainly could express its preference for a scheme whereby the initial litigation, if you will, at this level, would take place in the Congress.

To acknowledge that is not to say that the issue is justiciable or that this Court has somehow been necessarily excluded from the process for all time.

It is simply to say that the first line of litigation at the Federal level seems under the statute to be Congress, and not the Court.

Isn't that a fair reading of 15?

Mr. Olson: That's not a fair reading of Section 5, and let me answer this question, and I would like with the Court's permission to reserve the time...

Justice Souter: Well, I don't think Section 5 goes to the issue.

The question is whether it's a fair reading of Section 15.

Mr. Olson: I don't think that they can be read in isolation.

I think that Section 5 was designed to avoid the problem created by the controversy and the having to resolve this in Congress, which is exactly what did happen in 1876, and was a very unsatisfactory situation.

Justice Souter: And in 1876, Congress did not have...

1877.

the rules with...

Chief Justice Rehnquist: 1877.

Justice Souter: Congress did not have the rules with respect to conclusiveness that it now has under Section 5.

Mr. Olson: That's right.

And it put those rules with respect to conclusiveness into Section 5.

The Florida legislature bought into that scheme and now the Florida Supreme Court, which doesn't have any Constitutional authority pursuant to Section 2 to do so, upset that scheme, deprived Florida of the benefit of doing exactly what Congress wanted to have happen under Section 5.

I would, with the Court's permission, reserve the balance of my time.

Argument of Joseph P. Klock Jr.

Chief Justice Rehnquist: Very well, Mr. Olson.

Mr. Klock, we'll hear from you.

Mr. Klock: Mr. Chief Justice, and may it please the Court:

Our argument is simply addressed to issues having to do with Florida law, and the point being raised by the Secretary is this, that the law in the state of Florida on November 7 was changed by the Supreme Court of Florida's decision on November 21.

The Secretary is not contesting the right of the Florida Supreme Court to change the law of Florida, is simply pointing, she is simply pointing out, that the law did change.

Justice Kennedy: Does the Secretary maintain that in some instances she has a discretion that a court does not or can a court do whatever she might do, under Florida law?

Mr. Klock: Under Florida law, she has certain discretion that I think a court probably does not have in the protest period, Justice Kennedy, and that would be that she had the discretion to decide whether or not returns could be permitted after that seventh day, and indeed that's based on two things that we have in the record.

One is an opinion that was issued by the Division of Elections that talks about the circumstances in which the Secretary would exercise discretion, and the second is the letter that the Secretary sent to the three or four canvassing boards that requested an extension of time after the 14th deadline had passed.

She sent the letter out, she said, please indicate to me whether or not you intend to file returns after the deadline, and if you do what the reasons are.

She collected a set of criteria, she applied the criteria, and then sent a letter back, and what she did, Justice Kennedy, in the case of the Division's letter, the opinion which, of course, is binding under Florida law on elections officials who receive them, she... the Division head said that there were certain circumstances such as acts of God, hurricanes, and that kind of thing where the discretion would be exercised.

When she came up with her additional reasons for considering whether or not she would exercise her discretion, she indicated a number of them which are also contained within the record.

It's at the Joint Appendix at 21, she indicated where there was a result of voter fraud with a substantial...

Justice Stevens: She said she would exercise her discretion.

Did she say she would have to exercise her discretion in those conditions?

Mr. Klock: I think she would have to exercise her discretion.

Justice Stevens: The court did compel her to?

Mr. Klock: Yes, sir.

Justice Stevens: Do you think that was clear before the opinion of the supreme court in this case?

Mr. Klock: Yes, sir.

Justice Stevens: Let me just ask one general question for your comment on whether it's a change in the law.

To what extent, in your view, was the... did the Supreme Court of Florida consider itself bound by either prior precedent or the constitution of the state which preexisted?

Mr. Klock: In terms of handing down its decision?

Justice Stevens: In terms of the particular result it reached in this case.

Mr. Klock: I believe the Supreme Court of Florida was looking at its law in terms of articulating the law that it wanted to have then and on a going-forward basis.

What it did... and obviously since it's the chief court of the state, it has the right to do whatever it wishes to do with respect to Florida law only bound by whatever separation of powers...

Justice Stevens: Do you think they thought their decision was dictated either by prior precedent or by the constitution of the state?

Mr. Klock: Your Honor, I don't know whether they thought that or not, but that's not what the opinion says.

As a matter of fact, the opinion is pretty clear, they start out by talking about statutory construction, and they hinge everything on the use of the word interpret, and then they sort of turn the word interpret to a use that it's not intended to be, but then when they get to the point of designing the rule of law they're going to go forward on, they don't talk about interpreting the statute.

They then go and base it on principles of equity in the Florida Constitution, and indeed what they end up with, Your Honor, is this statement with respect to the discretion that the Secretary is left with, and that is this... and it's on 35 of the Joint Appendix.

"We conclude that consistent with Florida's election scheme, the Secretary may reject a Board's. "

that's the canvassing board's,

"amended returns only if the returns are submitted so late that their inclusion will preclude a candidate from contesting certification or preclude Florida voters from participating fully in the Federal electoral process. "

Now, Your Honor, there's...

Justice Stevens: I understand your position is that was entirely new?

Mr. Klock: Yes, sir.

Justice Stevens: I'm just wondering, therefore your submission is that it was not dictated by the constitution or by prior precedent?

Mr. Klock: No, Your Honor.

Chief Justice Rehnquist: I thought you said a moment ago that the court, the Florida court did rely on the Florida Constitution.

There's a section of their opinion that's devoted to that.

Mr. Klock: Your Honor, in devising the remedy, they refer to the Florida Constitution, but the issue that we're here on, as I understand it, sir, is whether or not the law changed.

There's no question that they have a right to do what they did.

The only...

Chief Justice Rehnquist: I think perhaps another statement of the issue is to what extent did the Florida Supreme Court, in construing this statute, rely on more general provisions of the Florida Constitution which they cited in their opinion?

Mr. Klock: I think they did rely, in creating the remedy on the Florida Constitution, I believe they created a right that had not previously been seen there, which they have a right to do, but, Mr. Chief Justice, the issue again is whether or not the law that they articulated on November 21 is different than the law that existed on November 7, and how the Secretary of State, in exercising her discretion, was to divine the standard that would be established on November 21.

Justice Scalia: Your position is so long as it's different, it violates Section 5 and therefore we have a right to step in?

Mr. Klock: Well, Justice Scalia, we have not addressed the Federal issues because, I mean, we're in a situation where you have...

Justice Scalia: Well, this is a Federal court what are you here for, if you're not addressing...

Mr. Klock: I understand that, sir.

I apologize.

But we have the Secretary of State here, we have the Attorney General here, and the legislature has filed by amicus, and of course the state has not appeared, so it's a little unusual.

We haven't addressed those issues, but to answer your question, yes, sir.

Justice Breyer: Can you tell me when this petition was filed here, the Secretary had not certified anybody the winner, and now the Secretary has certified a winner, and therefore, I guess, whether we win, whether your side, the side you're supporting wins or loses, it doesn't change that, and I guess that's moot, but my question is, is there any respect in which this really makes a difference, this case?

Justice O'Connor: How?

Justice Breyer: I'm thinking, if it does make a difference, numbers of vote, is that kind of thing right for us to decide now?

How could it make a difference?

What's the consequence of our going one way or the other now in this case?

Mr. Klock: Your Honor, it makes an enormous difference because the relief that has been requested would be for the Court to determine that the law in effect at the time of the election was that manual recounting of ballots would not be permitted to address voter error, which I think has been extensively...

Justice Breyer: We don't have... all... suppose they won and the relief was, suppose your side won, and the relief was, fine, it should have been certified on November 14th or 18th instead of November 26th.

Now, what's the consequence of that?

Just that?

Forgetting what the reasoning is.

Is there a consequence that flows from that, that is real, adverse, you know, significant, concrete that we can predict now as opposed to speculate?

Mr. Klock: The only immediate result would be that you would have a margin that instead of being 536 votes would be 900-some-odd votes, and it would only be added to as a result of whatever was added by the overseas ballots.

Justice Breyer: Fine.

Then this case has said, we've said a claim is not ripe if it rests upon contingent future events that may not occur as anticipated or indeed may not occur at all.

And so what I wonder, is this in this realm of speculation as to whether or not it will or will not make a difference, a difference to the outcome of the election.

Mr. Klock: It will make a difference to the outcome of the election because there is an ongoing contest which is interrelated and is involved with the Supreme Court's opinion, and of course because the Supreme Court of Florida, in coming up with the remedy that they came up with, completely changed the period of time from a relatively short period of time, seven days for a protest and much longer period for a contest, we now have a situation where there is 19 days for the protest and 16 days for a contest.

Justice Scalia: Well, it's too late... it's too late to lengthen the time for the contest.

I mean, to the extent that they have shortened the contest time, you know, that's water over the dam right now, isn't it?

Mr. Klock: Yes, Justice Scalia, but the issue here... I'm sorry.

Justice Scalia: Is it not the case that if the votes are, are as, as they have been shown to be under the Florida Supreme Court's opinion, the race is much closer, and therefore some counties under Florida law would conduct recounts that otherwise would not conduct recounts.

Doesn't whether a recount is conducted depend upon how likely it is that the recount is going to change the outcome?

Mr. Klock: Your Honor, if the law is returned to the point it was on November 7, there is no right to a manual recount to correct voter error, and that will end the litigation that currently exists in the State of Florida, which were the opinions of the Secretary of State's Division of Elections that were issued and also the state of the law as it existed at that point in time.

The record shows very clearly that there was no dispute that there were any problems with voting machines or any other tabulation problems with voting machines.

It was simply when they went through the process of what is, Justice Ginsburg, a discretionary right to a manual recount, not a mandatory one, when they went into that and did the test, each of those canvassing boards did not find any problem with a mechanical problem.

It was simply a problem in terms of voter error.

Justice Scalia: The secretary took the... never mind.

Justice Kennedy: Thank you.

Argument of Paul F. Hancock

Chief Justice Rehnquist: Thank you, Mr. Klock.

Mr. Hancock, we'll hear from you.

Mr. Hancock: Mr. Chief Justice, and may it please the Court: In accordance with Article II of the United States Constitution, the Florida legislature has directed the manner of selecting presidential electors in Florida

That manner is pursuant to a popular vote that's implemented pursuant to the general election laws of the State of Florida.

Justice O'Connor: I guess Article II permits the legislature in general to make a choice that it could itself select the electors?

Mr. Hancock: Yes, Justice O'Connor.

We agree with that.

In implementing the election law, each branch of the Florida government plays a role.

For example, the judiciary, or the executive branch of our government has not found itself bound by the technical, hypertechnical requirements of the election law.

An example of that is that the, the executive branch has implemented a rule, not a law, but a rule that allows absentee ballots from overseas military voters to be received after the 10 days after the close of the polls.

Under the law of the State of Florida, all absentee ballots have to be received by the time the polls close on election day.

Justice Kennedy: In your brief you say, you conclude that the Florida Supreme Court like, I think it's page 12, like any state court, exercised its inherent equitable powers to remedy a threat to fundamental constitutional rights, and it rewrote the certification deadlines according to that power, did it not?

Mr. Hancock: The only... yes, Justice Kennedy.

The only equitable power exercised by the court was setting the deadline.

Justice Kennedy: Isn't that such an amorphous general abstract standing that it can't possibly be said to be a law that was enacted and in place at the time of the election?

Mr. Hancock: No.

The laws were enacted well before the election.

What happened was that in the court...

Justice Kennedy: Of course, the Constitution was there before the election, the Due Process Clause is before the election, but what we are talking about is having laws of sufficient specificity and stability that people can rely on them in advance and not have them changed after the fact.

And your brief makes it very clear that they exercised their inequitable powers to remedy a threat to fundamental constitutional rights and changed the deadline accordingly.

It seems to me that's no standard... it's an enviable standard, something we might all agree with in the end, but as far as the requisite specificity to satisfy 3 U.S.C. Section 5, I just don't see it as there.

Mr. Hancock: The court had to do something, Justice Kennedy.

It was faced with conflicts in Florida law.

They had conflicting opinions from the Florida Attorney General as to the meaning of the law and the Secretary of State as to the meaning of the law.

As a result of...

Justice Kennedy: Maybe it had to do something, but did it comply with 3 U.S.C. Section 5?

Mr. Hancock: I submit, Justice Kennedy, that 3 U.S.C. Section 5 doesn't require the state to do anything, it merely says...

Justice Kennedy: But did it comply with that part of 3 U.S.C. Section 5 that requires that laws be enacted and in place prior to the election in order to get the safe harbor?

Mr. Hancock: Yes, it did.

The laws were in place before the election.

And those laws granted to the judiciary...

Justice O'Connor: Well, but certainly the date changed.

That is a dramatic change.

The date for certification, right?

Mr. Hancock: Yes.

Justice O'Connor: And it was done by the court.

Mr. Hancock: Yes, it was done pursuant...

Justice O'Connor: And the legislature had very clearly said, you know, seven days after, that's the date, and it just does look like a very dramatic change made by the Florida court, and I'm wondering if that is consistent in fact with the notion, expressed at least in Section 5, so that the result would be if it did go to Congress, it would be a change.

Mr. Hancock: The... I agree that the date was implemented pursuant to the court's equitable powers.

Other than that, it was a routine exercise in statutory construction.

The court was faced with a situation first of all where because of conflicting advice the counties had started and then stopped conducting manual recounts because of advice from the secretary of the state which the supreme court ultimately concluded to be erroneous.

Justice Scalia: Yes.

And that advice was... and this was really the beginning of all of the problem, her advice was that the provision providing for recounts, manual recounts, not requiring them but giving them as one of the options, only came into play when there was some defect in the, in the machinery, and it was not available for voter error, that is for voters who didn't punch the cards the way they were supposed to.

And the attorney, your office came out with the opposite conclusion.

The secretary's brief contends that that had always been the rule in Florida.

Is that the case?

Do you know of any other elections in Florida in which recounts were conducted, manual recounts, because of an allegation that some voters did not punch the cards the way they should have through their fault?

No problem with the machinery... it's working fine.

You know, there were what, pregnant chads, hanging chads, so forth?

Mr. Hancock: No, Justice...

Justice Scalia: Did that ever happen...

Mr. Hancock: No, I'm not aware of it ever happening before.

But, I can say that the Supreme Court of Florida for 100 years has put a duty on election officials to discern the intent of the voter, and while the secretary of the state refers to it as voter error, when the ballot is punched, that's, under the laws of the State of Florida as interpreted by the supreme court, that voter has cast the ballot, even if the chad did not...

Justice Kennedy: Is it your position that any interpretation the Supreme Court of Florida makes to implement the will of the people is never a new law?

Mr. Hancock: The supreme... yes.

I can't say ever, but I'd say that on the case before the court, all that was before the court was ordinary statutory construction, which must be, the result of it whether this Court would agree with it or disagree with it, must be respected by this Court.

That's the very foundation of federalism.

Justice Ginsburg: Mr. Hancock, are you relying on the Florida Supreme Court statement at least twice in its opinion... now I looked at the page to which Mr. Klock referred, page 37-A, it says for the second time that Section, the section governing manual recounts appears to conflict with the sections that set a deadline, and it's reconciling that conflict.

Mr. Hancock: Yes.

Justice Ginsburg: Whether it was wrong or right, that's what it said its mission was and that's what it did.

Mr. Hancock: Yes.

Both in words and in operation, the statutes could not work together because of the time for requesting manual recounts, the extent of the job of manual recounts...

Justice Scalia: What is the section that requires manual recounts?

Mr. Hancock: It's 102.

well, 102.166 authorizes manual recounts.

Justice Scalia: That's different from requires.

Mr. Hancock: Yes, but once it starts, Justice Scalia, once it's authorized, if the initial sample recount shows an error that might effect the outcome of the election...

Justice Breyer: Then...

Mr. Hancock: The board is then required to, among other things, conduct a full manual recount.

Justice Kennedy: No, no.

Justice Scalia: It's required to do one of three things, one of which could be a manual recount.

It could decide to do one of the other two instead.

Mr. Hancock: Yes.

The problem faced by the counties...

Justice Scalia: So there is really... there is... I mean, the Court says that there is a requirement for a manual recount but I don't see anything in the text of the statute that requires a manual recount.

Mr. Hancock: The statute requires that the election officials attempt to discern the cause of the error.

Here the cause of the error was that, in these counties, was that the machines were not able to read ballots, 10,000 ballots in Palm Beach County, the machine did not read as including a vote for president.

That was the issue so that the solution to that was not the machines, even when they're operating properly would not read these ballots, so what was left of the county canvassing boards then was to do the full manual recount, and the language of that statute again says they shall do a full manual recount in those circumstances.

Justice O'Connor: It says that the board may authorize the manual recount, it doesn't require it.

If it does authorize it, then it tells it how to do it and says they shall appoint as many counting teams as necessary, presumably as necessary to do it within the time limit.

Mr. Hancock: Yes, Justice O'Connor, but, again these... under the law these requests can be made up to the time of canvassing... that means up to six or seven days... and also the number of ballots at issue here are between 650,000 in Palm Beach County and also 900,000, up to 900,000 in Broward County.

Justice Scalia: If that is a statutory problem, the court's resolution didn't really solve it, did it?

Because even with her extended time period the same statutory problem exists.

There still isn't enough time under the extended deadlines for some of these counties that have an enormous number of votes to conduct a manual recount, isn't that right?

Mr. Hancock: Well, let me...

Justice Scalia: I mean to resolve a supposed conflict in the statute in a manner that leaves in place the same problem that existed before seems to me not a real resolution of the statutory problem.

Mr. Hancock: The supreme court tried to blend it all together to make it work, Justice Scalia, and again it came up with a solution.

The Secretary of State's argument here is based on... the Secretary of State herself recognized that she had the discretion under Florida law to accept returns filed outside of that seven-day deadline.

A breakdown of the machines, in her view, would justify late returns.

A failure of the machines to read ballots would not justify late-filed returns.

The supreme court said that the legal standard she was using was wrong.

That... we submit that that decision of the supreme court is the law in the state of Florida.

Chief Justice Rehnquist: I'm going to extend your time two minutes, Mr. Hancock, because you haven't had a chance to say a lot yet.

Mr. Hancock: Well, I don't need the extension time, Your Honor.

If there's no other questions, I will stop.

Thank you.

Justice Breyer: Thank you.

Argument of Laurence H. Tribe

Chief Justice Rehnquist: Mr. Tribe, we will hear from you.

Mr. Tribe: Mr. Chief Justice, and may it please the Court:

I think I would want to note at the outset that the alleged due process violation which keeps puffing up and then disappearing and has as far as I can tell not appeared at the state supreme court, did make one appearance in the reply brief here, is really not before the Court, and for understandable reasons, because although it is part of the popular culture to talk about how unfair it is to change the rules of the game, I think that misses the point when the game is over, and when it's over in a kind of photo finish that leaves people unsure who won, and then the question is, how do you develop great, sort of greater certainty, and a rather common technique is a recount, sometimes a manual recount, sometimes taking more time would be rather like looking more closely at the film of a photo finish.

It's nothing extraordinary.

It's not like suddenly moving Heartbreak Hill or adding a mile or subtracting a mile...

Justice Kennedy: You're seeing no important policy in 3 U.S.C. Section 5.

Mr. Tribe: No, no.

Justice Kennedy: In fact, we can change the rules after... not important... the popular culture...

Mr. Tribe: Certainly not, Justice Kennedy, but I read U.S.C. Section 5... that is 3 U.S.C. Section 5 not as a requirement that, for example, one never add resources to checking how a particular ballot was cast.

If you look at the language, I think it's really much too casual to say of it that all of the laws must stay fixed in order to have the safe harbor apply.

As I'll try to argue in a few minutes, that's not really a question for this Court, but for the Congress, but the language of Section 5 is that... and I'll just read what I think are the key words,...

Justice Souter: an you tell us where you're reading from?

Mr. Tribe: Actually, I'm just reading from a copy of the U.S. Code, 3 U.S.C. Section 5, not from any... the page I can identify...

Justice Scalia: It's in the appendix to the petitioner's brief, I'm sure, isn't it?

Mr. Tribe: Yes, although I'm afraid I don't have it in front of me.

Justice Souter: Page 3A of the blue brief.

Mr. Tribe: Thank you, Justice Souter.

Page 3A of the blue brief, I am reliably informed.

So if any state...

Justice Kennedy: That won't get you an extra two minutes.

Mr. Tribe: Well, I tried.

I tried.

If any state shall have provided, and then it says by laws enacted prior to the day fixed for the appointment of the electors, a fancy way of saying election day, for the final determination of any controversy or contest about the appointment of electors... and here's the key phrase, I think... by judicial or other methods or procedures at least six days before the time fixed for the meeting of the electors, that means in our situation, December 12, then the final determination shall be conclusive and govern the counting in Congress.

Now, the question for Congress, I suppose, would be, although I don't see how this Court could get into that question at this stage, but the question would be, is a particular change extending a deadline for exigent circumstances because a recount has been authorized, a change in the judicial or methods of procedures for resolving the contest.

Chief Justice Rehnquist: Let me just ask you a moment, you say you don't think the statute permits this Court to get into the matter at this time.

Are you suggesting there could be any judicial review of a decision by the Congress to count one set of electoral votes?

Mr. Tribe: No, I don't think so, Mr. Chief Justice, it's just that I don't trust my own imagination to have exhausted all possibilities.

For example, in the case in, I think it was 1890, in Fitzgerald v. Green when this Court held that only states can punish fraudulent voting for presidential electors, it got into the act sort of obliquely and at an angle, and that had a bearing on the question of how the presidential electoral slate might be composed, but it certainly didn't get into this.

Chief Justice Rehnquist: No, it certainly was quite different from...

Mr. Tribe: Very.

Chief Justice Rehnquist: this hypothetical.

Mr. Tribe: That's certainly right.

Justice Kennedy: You suggest in your reply brief that it is not... I think you said it's not self-evident that the Florida legislature at this time has the right to appoint any slate of delegates because the Congress has set the date, and the date is the general election day.

If that is so, doesn't this mean that when we talk... think about justiciability, we must be very careful to preserve the role of the Court.

You have said or suggested here in your reply brief that the Florida legislature now has no role.

You are now suggesting that this Court has no role.

That means the Supreme Court of Florida is it, so far as a judicial interpretation of the consequences of 3 U.S.C. Section 5.

Mr. Tribe: Well, Justice Kennedy, first of all I do want to be clear that in our view the question of whether and when and how the Florida legislature can enter the picture is in no way presented here.

That paragraph was intended to suggest that it's not obvious that the views of some that there's no problem is right.

Secondly, if it were the case that the Florida legislature could not simply decide, well, we're tired of all this counting, we're moving in, and that this Court cannot decide whether the conditions of 3 U.S.C. Section 5 are met, it would then remain only for Congress to make a determination and adding the Florida legislature would not, after all, have added an adjudication.

Justice Kennedy: And my point is that puts hydraulic pressure on your nonjusticiability argument and makes it a very, very important argument and a critical argument in this case.

Mr. Tribe: Well, perhaps, Justice Kennedy, but I frankly can't see how it would affect the decision in this case.

After all, you have before you a judgment of the highest court of the state.

As Justice Ginsburg and others have suggested, it would ordinarily be the case, surely, that one would not go out of one's way to read the judgment as a breach of faith with the duties of trying to reconcile provisions that are...

Justice O'Connor: Well, I guess in the area, though, of presidential electors it could be that that court, as all courts would be, have to be informed, at least, by the provisions of Section 5 in reviewing the laws enacted by the legislature of the state.

I mean, it had to register somehow with the Florida courts that that statute was there and that it might be in the state's best interest not to go around changing the law after the election.

Mr. Tribe: Well, Justice O'Connor, I certainly agree that if the Florida Supreme Court adverted to 3 U.S.C. Section 5, and as Justice Kennedy asked earlier, got it wrong, then there would be a Federal issue for this Court.

Would it be, I wonder, a Federal issue...

Justice O'Connor: Well, is there a Federal issue if the Court doesn't...

Mr. Tribe: No.

The answer is no.

Justice Breyer: advert to that?

Mr. Tribe: It would be nice.

But remember it is...

Justice O'Connor: Because of Article II, which, after all, does give the legislature plenary power and must have wanted... it must have wanted to have the laws in place so that it wasn't... so that Florida wouldn't risk losing its electoral votes.

I mean, the legislature had to want that by enacting laws, and perhaps the Florida court has to be aware of the consequences to the state of changing the rules.

Mr. Tribe: But, Justice O'Connor, under Article II, Section 1, Clause 2, the authority to regulate the manner of the choice of electors is vested in the state legislature.

If the state legislature decides from the beginning to exercise that authority by instructing the various institutions, certainly not just the courts, the attorney general, the secretary of state, in very particular ways to exercise their roles in the process, with a specific view of...

Justice O'Connor: Well, it certainly did by enacting that date.

Here is the certification date.

How could it have been clearer?

Mr. Tribe: Well, I suppose it could be a violation of Florida law if the enactment of that date is construed as a direction to a particular authority like the secretary of state or the state's highest court to take certain actions in order to get the benefit of this bonus, but only a violation of Federal law.

I don't see how you got a...

Justice Breyer: What Florida law would that be?

Mr. Tribe: Of state law.

I'm sorry.

Chief Justice Rehnquist: Are you talking about the Florida Constitution?

Mr. Tribe: Well, it might have been a violation...

Chief Justice Rehnquist: But then you run into the Blacker case.

Mr. Tribe: But it seems to me that the Federal question, which is really what brings us here, can only arise if 3 U.S.C. Section 5 is something other than what Mr. Olson called the indemnification of the state.

Chief Justice Rehnquist: It can also arise under the section of the Constitution that was construed in Blacker.

That's quite independent of 3 U.S. 5.

Mr. Tribe: That's right, if one concluded that Florida had violated its duty to empower the legislature to take these regulatory steps.

Chief Justice Rehnquist: If one concluded that the Florida legislature had relied on the state constitution in a way that the Blacker case says it may not in construing the statute.

Mr. Tribe: I think that's possible, Mr. Chief Justice, but the judgment before you doesn't provide even an inkling, I think of proof about those matters.

All we have...

Justice Breyer: That's what we have been arguing...

Chief Justice Rehnquist: As to whether it does or whether it doesn't.

Mr. Tribe: Well, I think we have been arguing several interrelated things.

One of the things we have been arguing is whether one could in good faith reach the conclusion, novel as it was in some respects, as Justice O'Connor points out, that the Florida Supreme Court reached.

Now, if the answer to that question was no, perhaps if there were a due process issue in this case, and if someone had a protectable interest that was injured, that would be relevant.

But the Federal question that makes that relevant here would arise only if one forgot that 3 U.S.C. Section 5 is all carrot and no stick.

Chief Justice Rehnquist: No.

I don't agree with you on that, Mr. Tribe.

It seems to me a Federal question arises if the Florida Supreme Court in its opinion rather clearly says that we are using the Florida Constitution to reach the result we reach in construing the statute.

I think Blacker is a strong argument they can't do that.

Mr. Tribe: Well, that they can never avert to their own constitution?

Chief Justice Rehnquist: Well, certainly it stands for the proposition you couldn't do it then, in those circumstances.

Mr. Tribe: Well, what would it be, I wonder, about the circumstances here that would say that in reconciling these provisions which at first we were told were mandatory, then we were told they are not mandatory, they give discretion, and now we are told that the real issue is simply did the court in putting a boundary on that discretion, do something federally impermissible.

What would it be about that sequence that would implicate...

Chief Justice Rehnquist: Well, you know, if the Supreme Court of Florida simply said in its opinion, look, these sections of the statute conflict, we've got to under our judicial principles resolve it one way or the other, but... but it doesn't say that.

It goes on to say, look, in the light of the Florida Constitution and the general rights conferred there, we are construing it this way.

Mr. Tribe: It seems to me that as a tiebreaker, as a way of shedding light on the provisions that are in conflict, so long as it's not done in a way that conflicts with a Federal mandate, they are not violating any...

Justice Scalia: Mr. Tribe, I don't... I don't agree with that.

I don't... I don't think that the Florida Supreme Court used the Florida Constitution as a tool of interpretation of this statute.

If you look at its opinion, it's separated into, into various sections, issues; IV, legal opinion of Division of Elections; V, the applicable law; VI, statutory ambiguity; and that's... and VII, legislative intent.

That's the section where they construe the statute in view of these ambiguities and so forth.

That section concludes, under this statutory scheme, the county canvassing boards are required to submit their returns to the department by 5 p.m. of the seventh day following the election.

The statutes make no provision for exceptions following a manual recount.

If a board fails to meet the deadline, the secretary is not required to ignore the county's returns, but rather is permitted to ignore the returns within the parameters of this statutory scheme.

So what the statutory interpretation gives you is a firm termination date of December 7th and discretion in the secretary.

The opinion continues, VIII, the right to vote.

The text of our Florida Constitution begins with a declaration of rights.

And it goes on to say that to the extent the legislature may enact laws regulating the electoral process, those laws are valid only if they impose norestraints on the right of suffrage contained in the Constitution.

In other words, I read the Florida court's opinion as quite clearly saying, having determined what the legislative intent was, we find that our state constitution trumps that legislative intent.

I don't think there is any other way to read it, and that is, that is a real problem, it seems to me, under Article II, because in fact there is no right of suffrage under, under Article II.

There is a right of suffrage in voting for the legislature but Article II makes it very clear that the legislature can itself appoint the electors.

Mr. Tribe: It seems to me that it's already been conceded that the legislature can delegate that function to the judiciary.

And when Justice Kennedy asked if it can delegate the function to the judiciary, and that is what McPherson seems to suggest, then can it not delegate something less, that is, can it not give the judiciary a role of the sort that it's exercising here?

After all, the legislature, and this is important... it's not true in every state... the legislature itself repromulgates the Constitution every several years and then it's ratified by the people.

Justice Souter: Isn't there another... go on.

Justice Scalia: No.

Justice Breyer: That's all right.

Justice Souter: Isn't there another way of looking at what the Florida court did, and that was in effect to apply the statute, the interpretative criterion, that where there is any discretion for interpretation, an unconstitutional result should be avoided, and because you have here a statute as I understand it that regulates both Federal and state recounts, that much is, I think is clear.

Mr. Tribe: Right.

Justice Souter: The only way to avoid an unconstitutional meaning of the statute so far as Florida law was concerned was to get into this constitutional concern about preserving the franchise, and that because the legislature intended one standard to cover both Federal and state recounts, it therefore is valid to consider the state constitution in order to derive a general meaning that will apply to a Federal, as well as a state election.

Justice Breyer: Can you look at it that way?

Mr. Tribe: I fully accept that view, Justice Souter.

I'd supplement it with one important point.

We are not dealing here with a decision in which within the gray area where a court could reasonably go either way, this court simply said we don't care about these Federal considerations.

It in particular exercised its equitable powers in favor of the Petitioner in order to facilitate meeting the December 12 deadline while still being able to have electoral contests.

That December 12 deadline comes purely from Federal law.

Justice Breyer: Can you... can you just go back to your characterization of the opinion.

I think we would all agree that given that the legislature has to select the manner, a state can't say, our Constitution selects the electors.

I suppose that's...

Mr. Tribe: That's right.

Justice Breyer: All right, but thinking of this opinion, suppose the court had said, look, we reach our result based on the canons we found in Blackstone.

Now, nobody is going to say they said Blackstone is selecting the electors, right?

Mr. Tribe: I think that makes sense.

Justice O'Connor: All right.

Justice Breyer: Now, I suppose they said, we reached this decision based on the values found in the Constitution.

That would be like Blackstone.

But suppose they say, well, the legislature wants us to do X, but our Constitution requires us to do not X.

That might be different.

Mr. Tribe: It might be different.

Justice Breyer: Now, what is it that they have done here?

Mr. Tribe: I certainly don't think they have done the third.

They did not say... I think when they underscored the presence of language that Justice Scalia read about what's mandatory, they were simply being candid about the fact that they were acting in conflict with one part of the statute, but the adjacent...

Justice Scalia: It's in a separate section of the opinion, Professor Tribe, that is entitled the right to vote.

It is after the legislative intent section and it says categorically, to the extent the legislature may enact laws, they are invalid.

And I suggest perhaps the reason that the court did it is that however expansive the doctrine of constitutional doubt is, there is no way that it can make December 7 mean anything except December 7.

I mean, they were almost constrained to use the constitution to override the, the firm deadline...

Mr. Tribe: Justice Scalia...

Justice Scalia: that was explicitly set forth in the constitution.

Mr. Tribe: Justice Scalia, both you and I think at one point Justice O'Connor, in pointing to the particular dates that came out differently under the approach that this Court used from what would have emerged if they had looked only at 102.111 are making a mistake, with all respect.

It's not as though this Court promulgated a rule for the future about December 7th in commemoration of Pearl Harbor, we say December 7 is the day.

No.

What they did was say we have to find a date which will accommodate these conflicting statutory provisions and policies in light of what our constitution tells us, and we surely... it would amaze, I would think amaze this Court to see anyone saying that because an opinion was organized under Roman numeral headings...

Justice Scalia: Professor Tribe...

Mr. Tribe: in such a way that...

Justice Stevens: Isn't it also true, Professor Tribe, that part 8 of the opinion relies on four things... the Florida Constitution, earlier Florida decisions construing statutes, an Illinois case, and a Federal case.

Mr. Tribe: Absolutely.

Justice Stevens: Not just their constitution.

Mr. Tribe: That's right, and surely...

Justice Souter: Is it also true that the inability to use Section 7 depended in the Florida Supreme Court's reasoning not on the existence of the constitution as the sole reason, but on the inability to make the December 7 date final and provide for the recounts within the times in which recounts can be called for.

What I'm saying is, didn't they say that the date of the 7th cannot stand, not because of the constitution alone but because there are other provisions in the statute that cannot be accommodated with sections... with the 7 date?

Mr. Tribe: Exactly.

And I guess to take a broad...

Justice Ginsburg: They said that twice, and I think that's critical if you add to that that we read a decision of a state court in the light most favorable to that court and not in the light least favorable.

I suppose there would be a possibility for this Court to remand for clarification, but if there's two readings, one that's questionable, one that isn't, all of our decisions suggest that we read the one...

Mr. Tribe: Especially, I think, Justice Ginsburg, when the odds that these conceivable Federal problems are indispensable to this result, are overwhelmingly negative.

It's not as though one cannot explain the result this Court reached in the most conventional standard ways, and the fact that...

Justice Scalia: Professor Tribe, I would feel much better about the resolution if you could give me one sentence in the opinion that supports the second of these supposed alternative readings, that supports the proposition that the Florida Supreme Court was using the constitutional right to vote provisions as an interpretive tool to determine what the statute meant.

I can't find a single sentence for that.

Mr. Tribe: Justice Scalia, I can do a little better than find a sentence.

The entire structure of that part of the opinion, as Justice Stevens points out, would be incoherent if the constitution was decisive.

That is the highest law in Florida.

Why bother with all the rest if that is anything more than an interpretive guide.

Justice Scalia: You would bother with it because having decided very clearly what the statute requires and finding no way to get around the firm dates set, you say the reason it's bad is because of the state constitution.

That's how it's written.

Mr. Tribe: But, Justice Scalia...

Justice Scalia: They might have tried it another way, but it seems to me they didn't...

Mr. Tribe: They also say that the provision that reaches the result that conflicts with the authorized recounts was written in 1951, that in 1989 they wrote a provision that unmistakably created discretion, and we haven't yet discussed this provision, also created the provision that when the returns are filed late, it doesn't say throw them away, it doesn't say give them back, it says fine every member of the canvassing board $200 a day.

That would be a totally crazy provision.

As this opinion understands, if you were not to reach a reconciliation of this sort, this result was overdetermined under Florida law.

It might be true that they said the constitution also points this way, but there isn't a sentence in the opinion that suggests that without that constitutional argument the result would have to be different.

Justice Breyer: What is the November 26th date?

Is that the seven day date moved or is that some kind of a date that tries to reconcile the ultimate point after which the Secretary in exercising her discretion no longer has to accept the late returns?

Did it move the date from the statute?

Has it created a new date about this discretion?

Chief Justice Rehnquist: What is it?

Mr. Tribe: Well, it looks to me like an exercise of the chancellor's foot, as it were, in this particular case.

When I saw the date, November 26th, I couldn't come up with an algorithm or a formula that would generate it, but the court was confronted with the task of drawing, as this Court has recognized, what are sometimes inevitably arbitrary lines; that is, it said it was not consistent with the overall scheme of the statute to require these recounts, which had just begun, to terminate.

That truly would be a promise to the ear to be broken to the hope, like a munificent bequest, Justice Jackson said...

Justice Kennedy: If the legislature...

Mr. Tribe: in the pauper's will.

Why tell people the count if you won't count it?

Justice Kennedy: And if the legislature had jumped into the breach and said this same thing, would that be a new statute or new enactment under 5 U.S.C.?

Mr. Tribe: I... honestly, Justice Kennedy, I'm not sure because the language that I quoted from 3 U.S.C. Section 5 focuses on the institutional dispute resolution arrangement that is in place, and if you look at the legislative history in the decade of hearings in the period after the Hayes-Tilden debacle, that history focused on the importance of having a fixed tribunal which you could look to rather than one cooked up at the last moment, and indeed what they seem to be most afraid of was the political entry of legislators and executives at the 11th hour.

There was no focus at all.

Justice Kennedy: But are you saying you can't tell us whether they, in the hypothetical, supposed that it would be a new enactment?

Mr. Tribe: Well, there are certainly no cases on the subject.

The language gives me very little guidance.

Since the section is addressed to Congress, neither my opinion about it nor the Court's opinion is necessarily...

Justice Kennedy: You don't think you could tell us what you might advise the Congress if you were the counsel for the Judiciary Committee.

Mr. Tribe: I think I would advise the Congress that it is not a new enactment, that it is an entirely reasonable construction of an existing enactment as to which the only alternative construction is to make it self-destruct, and to make it internally contradictory, and I honestly don't think if I were advising Congress that I would say it's a new construction.

I do think, also, that some people reasonably could argue the contrary, and I guess I think that this language should be interpreted whether by a court or by Congress in a way that gives some deference to the state government and its organs, and I think any degree of deference here is inconsistent with saying that there's been a Federal violation, especially when... I want to remind us all about the context.

Are we going to say that this paragraph in this opinion says that Florida is in breach of Article II of the Constitution in general?

Hard to say.

I don't think so.

Justice O'Connor: There should perhaps be some deference, though, to the concept expressed in Article II, that it is the authority of the legislature and some special concern about what the legislature may have said.

Mr. Tribe: Yes, but if the legislature is entirely happy not to completely delegate this power to the courts, which Article II would permit, but rather to allow the courts to exercise a somewhat more flexible role than the one that the critic of this opinion would be embracing.

That's within the power of the legislature of Florida.

Justice O'Connor: Yeah, but who would have thought that the legislature was leaving open the date for change by the court?

Justice Scalia: Who would have thought that?

Mr. Tribe: Anyone.

If you just read the statute in 1989 and it says may.

It says she may reject the late returns.

Justice Breyer: That doesn't change... that's not the date.

Mr. Tribe: No, the date is the one from which the may is measured.

That is, you're supposed to get it in by seven days later.

What if you don't?

Well, if you don't, she may or she may not reject them.

Now, anybody reading that would realize that's a deadline only in a kind of Pickwickian sense.

It's not a real deadline.

She's got discretion.

Certainly if there's an act of God of the sort Justice... was it Justice Stevens... asked about...

Justice O'Connor: Yes, well, then the Secretary came in and argued and said, yes, her discretion was if it were an act of God or a machine breakdown she would exercise her discretion.

Mr. Tribe: And it's an entirely normal exercise of judicial interpretation to say that this statute is not limited to God and machines.

Justice Scalia: Professor Tribe, can I ask you why you think the Florida legislature delegated to the Florida Supreme Court the authority to interpose the Florida Constitution?

I mean, I... maybe your experience with the legislative branch is different from mine, but in my experience they are resigned to the intervention of the courts, but have certainly never invited it.

Mr. Tribe: Well, I have to say my experience parallels that...

Justice Scalia: What makes you think the Florida legislature affirmatively invited the Florida Supreme Court?

Mr. Tribe: The odd thing is that the system in Florida involves their own repromulgation of the constitution, and their scheme with respect to the resolution of disputes over elections draws a sharp distinction between elections to their own House and Senate, which they won't trust the courts with as far as they can throw them.

Those are to be resolved exclusively in the House and Senate, and all others are to be resolved in the courts under a standard that they understandably preferred.

Justice Scalia: They are resigned, that they are resigned to, but they need not be resigned to the Florida Supreme Court interposing itself with respect to Federal elections, they need not be because the Florida Constitution cannot affect it.

And I... I just find it implausible that they really invited the Florida Supreme Court to interpose the Florida Constitution between what they enacted by statute and the ultimate result of the election.

Mr. Tribe: Well, I suppose if they were at all far-sighted, if they looked at their own work and saw how self-contradictory it was, they might say we would want someone with the authority to reconcile these provisions to do so in the light not only of the literal language but of the fact that they are dealing with something very important, the franchise, that disenfranchising people, which is what this is all about, disenfranchising people isn't very nice.

Justice Breyer: Wouldn't justice...

Mr. Tribe: And it violates the Federal as well as the state Constitution.

Justice Souter: But wouldn't Justice Scalia's suggestion be a stronger suggestion if they had dealt by the statute only with Federal elections or only with a presidential election as opposed to dealing with both state and Federal in the same statute?

Mr. Tribe: Well, it's not uncommon, given the convenience of having similar regulations apply on election day not to bifurcate.

Oregon v. Mitchell, after all, confronted the nation with a problem...

Justice Kennedy: Right.

Justice Souter: But when they... when they don't bifurcate, it's reasonable to suppose that they expect their statute to be construed, number one, as one statute, not as having different dates for different, for state and Federal; and, number two, to be construed so far as the state concern arises in accordance with the state Constitution, and if that is so, then the result is they would expect a state constitutional concern to inform their interpretation of a statute which ultimately governs Federal as well as state.

Mr. Tribe: And they would recognize that when the Federal election involved the presidency of the United States with the special problems of the Electoral College deadline, they might emerge with rather different deadlines and to some extent a different approach for the... two elections.

Justice Scalia: But there are already different deadlines for Federal elections, aren't there, because of the Federal statute concerning overseas ballots?

Mr. Tribe: Yes.

That's... that's entirely true.

Justice Scalia: So that's, that's going to be different anyway.

Mr. Tribe: And there is an administrative order...

Justice Souter: But it's as a result of Federal law, isn't it?

Mr. Tribe: Well, there is a consent decree arising out of Federal law.

There was the Federal general statute...

Justice Souter: But it wasn't the legislature's choice, it was Congress' choice that required that.

Mr. Tribe: That's right.

In 1986, there was a congressional statute that already created that difference.

Justice Ginsburg: Mr. Tribe, before you finish, I would like to know whether you are conceding some of the things you said.

Sounds like maybe you are.

But the Florida legislature under Article II, Section 1, could say we don't want any judicial review of anything about the manner in which we say electors should be appointed.

Does the Florida legislature have the authority to cut out judicial review?

Mr. Tribe: No.

No, I certainly don't think so.

They cut out judicial review... even this may not be entirely consistent with the Florida Constitution.

They cut out judicial review for the election of their own members in the House and Senate.

I certainly don't think they would have the authority to expel the Federal judiciary from the election of senators and representatives.

Justice Ginsburg: No.

Justice O'Connor: I mean the state judiciary.

Justice Ginsburg: The state judiciary.

When it says each state shall appoint electors in such manner as the legislature thereof may direct.

May the legislature direct as to the Florida Supreme Court, and Florida Supreme Court we don't want you to review whatever we do?

Mr. Tribe: I'm not actually clear about that, Justice Ginsburg.

I have thought about it a lot.

It seems to me that under Smiley v. Holm and similar cases, the general principle is that the Constitution takes the state government and its arrangement as it finds it, and that when the legislature is identified, that really does not mean the legislature in some specialized capacity, as with Article V.

Now, if that's the case and if it's therefore assumed that the legislature is surrounded with both executive and judicial authority, then a decision by the legislature to completely exclude the judiciary from any possible role, the state judiciary, might be inconsistent with the underlying meaning of Article II itself.

Justice Ginsburg: Well, could the state legislature at least now say in light of all this confusion, we enact a law today saying this is the way electors will be selected?

Is that open to the legislature now?

Mr. Tribe: I'm not sure.

That's very much like my inability to answer because I honestly have not reached a conclusion that it's not presented by this case.

I don't know whether the legislature could do the further thing of naming electors, and if it doesn't do that...

Chief Justice Rehnquist: Thank you, Mr. Tribe.

Mr. Tribe: Thank you, Mr. Chief Justice.

Rebuttal of Theodore B. Olson

Chief Justice Rehnquist: Mr. Olson, you have four minutes remaining.

Mr. Olson: Thank you, Mr. Chief Justice.

May it please the Court: It seems to me that it's very difficult to read the Florida Supreme Court decision as saying anything else other than the Florida Constitution in their view, in that court's view, is trumping everything else

The second paragraph of the conclusion says because the right to vote is the preeminent right in the declaration of rights of the Florida Constitution and so forth, this opinion is full of language...

Justice Breyer: But suppose they refer to the declaration of the rights of man, to 1789, the French revolution, I mean, the right to vote is a value in the constitution.

Are they actually saying... I didn't see it?

Mr. Olson: They are saying...

Justice Breyer: Or are they are saying the statute means one thing, but the statute is unconstitutional because the Constitution of Florida says the opposite.

I didn't see that.

Mr. Olson: I think that the only reasonable fair reading of the decision is that the Florida Supreme Court felt that, and it says it over and over again, that we are going to be... attempt to discern the will of the people, the will of the electorate and discern, and enhance in whatever way we possibly can the right to vote.

And because of that, these provisions of the statute which are very much quintessentially legislative, the timetables that are involved in this statute, particularly the November 14th deadline, is a part of a composite package.

There is one week for a protest and certain recounts to the extent that they can be done and there are four weeks for contests.

When the Florida Supreme Court truncated, when the Florida Supreme Court expanded the protest period from 7 days to 19 days, it necessarily limited the contest period to a shorter period of time.

It changed the discretion.

It allowed certain things to occur that couldn't have occurred and it justifies all of those things on the grounds that the Florida Supreme Court, the Florida Constitution trumps those legislative concerns, and that's why it said we are not going to be dissuaded by hypertechnical statutory considerations.

So the court was doing what this Court said in the McPherson vs. Blacker case that it cannot do, allow itself to insert itself or the Florida Constitution over what is required by Article II, Section 1 of the Constitution.

It also seems to me quite evident in response to what Justice Kennedy was asking earlier, that there was concern about the Federal statutory provision, the language to which I think Justice Kennedy was referring is on page 32-A of the appendix to the petition from the court's decision, and there is a footnote there that does refer to reference to 3 U.S.C. 1 through 10, which of course includes Section 5, and it says so in conjunction with the statement that the exercise of the discretion by the secretary of state could not be done in such a way that would preclude Florida voters from participating fully in the Federal electoral process.

The court was assuming, it seems to me, that it did not, was not conflict... the decision that it was rendering was not going to cause a conflict with the Federal statutory scheme, and it was, we submit, in error in that regard.

So the... the... to sum up with respect to this, the Florida Supreme Court radically changed the legislative scheme because it thought it could do so under the Florida Constitution.

By doing so, it acted inconsistently with Article II of the Constitution, and inconsistently with Section 5 of Title III, and it has brought about precisely the circumstances that Section 5 of Section 3, Title III, was designed to avoid.

Justice Ginsburg: As I look in the conclusion, the paragraph on page 37-A, where they summarize what they said, there is nothing there about the Florida Constitution.

It's only about the Florida election code.

They say they must construe the Florida election code as a whole, and they point out the provisions in conflict.

There is not one word in that paragraph that says anything about the Florida Constitution.

Mr. Olson: The very second paragraph refers to the Florida Constitution and the rights to vote.

Page 36-A of the appendix to the petition.

Chief Justice Rehnquist: Thank you, Mr. Olson.

The case is submitted.

The honorable court is now adjourned until Monday next at ten o'clock.