Bush v. Gore - Oral Argument

Argument of Theodore B. Olson

Chief Justice Rehnquist: We'll hear argument now on number 00-949, George W. Bush and Richard Cheney, versus Albert Gore, et al. Before we begin the arguments, the Court wishes to commend all of the parties to this case on their exemplary briefing under very trying circumstances.

We greatly appreciate it.

Mr. Olson.

Mr. Olson: Mr. Chief Justice, thank you, and may it please the Court:

Just one week ago, this Court vacated the Florida Supreme Court's November 21 revision of Florida's election code, which had changed statutory deadlines, severely limited the discretion of the State's chief election officer, changed the meaning of words such as shall and may into shall not and may not, and authorized extensive standardless and unequal manual ballot recounts in selected Florida counties.

Just four days later, without a single reference to this Court's December 4 ruling, the Florida Supreme Court issued a new, wholesale post-election revision of Florida's election law.

That decision not only changed Florida election law yet again, it also explicitly referred to, relied upon, and expanded its November 21 judgment that this Court had made into a nullity.

Justice Ginsburg: Mr. Olson...

Justice Kennedy: Can you begin by telling us our federal jurisdiction, where is the federal question here?

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

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

Mr. Olson: Justice Kennedy, the Constitution specifically vested the authority to determine the manner of the appointment of the electors in state legislatures.

Legislatures, of course can use the executive branch in the states, and it may use in its discretion the judicial branch.

Justice Kennedy: Then why didn't it do that here?

Mr. Olson: It did not do that here because it did not specify... it did use the executive branch.

In fact, it vested considerable authority in the Secretary of State, designating the Secretary of State as the chief elections official, and as we point out, the very first provision in the election code requires the Secretary of State to assure uniformity and consistency in the application and enforcement of the election law.

The Secretary of State as the executive branch is also given considerably other... considerable other responsibilities, when but... and to a certain extent, especially in connection with the contest phase of the election, certain authority was explicitly vested in the Circuit Court of the State of Florida, which is the trial court.

Justice O'Connor: Oh, but you think then there is no appellate review in the Supreme Court of what a circuit court does?

Mr. Olson: Certainly the legislature did not have to provide appellate review.

Justice O'Connor: Well, but it seemed apparently to just include selection of electors in the general election law provisions.

It assumed that they would all be lumped in together somehow.

They didn't break it out.

Mr. Olson: Well, there are... there is a breakout with respect to various aspects of Florida statute and Florida election law.

There is a specific grant of authority to the circuit courts.

There is no reference to an appellate jurisdiction.

It may not be the most powerful argument we bring to this Court.

Justice Kennedy: I think that's right.

Mr. Olson: Because notwithstanding, notwithstanding... well, the fact is that the Constitution may have been invoked.

Justice Kennedy: Well, this is serious business because it indicates how unmoored, untethered the legislature is from the constitution of its own state, and it makes every state law issue a federal question.

Can you use this theory and say that it creates some sort of presumption of validity that allows us to see whether this court or the executive has gone too far?

Is that what you're arguing?

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

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

And I would have thought that that would be sufficient rather than to raise an appropriate federal question, rather than to say there's no judicial review here in Florida.

Mr. Olson: I think that I don't disagree with that except to the extent that I think that the argument we presented and amplified on in our briefs is a good argument, it's a solid argument.

It is consistent with the way the code is set up, and it's particularly consistent with the timetable that's available in a presidential election.

However...

Justice Kennedy: Well, it's pretty close.

You can say it could be interpreted that way by the Florida Supreme Court, I suppose.

You think it must be?

Or is your point that even in close calls we have to revisit the Florida Supreme Court's opinion?

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

It would be unfortunate to assume that the legislature devolved this authority on its judiciary sub silentio.

There is no specific reference to it.

But in this case, as we have pointed out, especially the decision of last Friday, there was a major overhaul in almost every conceivable way.

Justice Stevens: Mr. Olson, as I understand your argument, you rely on Leser v. Garnett and Hawke v. Smith, and is it critical to your Article II argument that we read the word legislature as narrowly, I mean the power granted the legislature as similar to that granted in Article V of the Constitution, as those cases dealt with?

Mr. Olson: No, I don't think it's necessary.

Justice Stevens: So your reliance on... you really are not relying on those cases.

Mr. Olson: Well, I think those cases support the argument, but as we said...

Justice Stevens: But if you've got to choose one version of the word legislature or the other...

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

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

Justice Stevens: But is it the choice of the legislature or was it constitutionally limited to this provision?

I'm a little unclear on what your theory is.

Is it your theory, in other words, that they voluntarily did not permit appellate review of the lower courts in these election contests or that Article II prohibited them from allowing appeal to the appellate?

Mr. Olson: No, Article II... we do not contend that Article II would prohibit them from fulfilling that process.

Justice Stevens: Of course Article V would have, and under Leser against Garnett and those cases, but you...

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

Justice Ginsburg: Mr. Olson, with respect to the role of judicial review, you rely very much on the McPherson case, and two things strike me about that case.

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

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

Justice Ginsburg: But there was a decision by the court reviewing, which we affirmed.

Under your jurisdiction theory as I see it, there was no role for the Michigan Supreme Court to play because Article II, section 1 gives the authority exclusively to the legislature, and the legislature has not provided for judicial review especially for that measure.

Mr. Olson: I think the context of that case is different, and that it's entirely possible for the Court to have come to the conclusion it did in that case and we believe that case is compelling for the principle that we are arguing in this case, that there is no, the entire structure of what Florida did, its election code, in its effort to comply not only with Article II, but with Section 5 of Title 3, is such that it did not intend in any way to divest itself of the power to determine how the appointment of electors would be determined in a federal presidential election and most importantly, the resolution of cases and controversies, and disputes, with respect to the appointments...

Justice Ginsburg: Three times, at least as I counted in McPherson itself, it refers to what is done by the legislative power under state constitutions as they exist.

This is not the most clearly written opinion, and yet three times, they refer to the legislative power as constrained by the state's constitution.

Mr. Olson: And I think that that's important.

I agree with you, Justice Ginsburg.

It's not the most clearly written opinion.

But I think that in the context of that case, the relationship of the legislature to the Constitution in that case and the way that power was exercised, that ought to be reconciled with what we are urging the Court today, that a wholesale revision and abandonment of the legislative authority can't be turned over, especially sub silentio, by a legislature simply because there is a constitution.

There is a constitution in every state.

There is a judiciary in every state.

The judiciary performs certain functions in every state, and to go that length, one would assume that the judiciary in every state under that argument could overturn, rewrite, revise, and change the election law in presidential elections notwithstanding Article II, at will.

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

Justice Stevens: Mr. Olson, isn't that one of the issues in the case as to whether it was a major revision?

Your opponents disagree, and I know you rely very heavily on the dissenting opinion in the Florida Supreme Court, but which opinion do we normally look to for issues of state law?

Mr. Olson: Well, I think that the dissenting opinion and the two dissenting opinions are very informative.

We are relying on what the court did.

If one looks at, for example, the recount provisions, before this revision under Florida law, manual recount under the protest provisions were discretionary, completely discretionary, conducted by canvassing boards during the protest phase of the election, post-election period, pursuant to legislatively defined procedures as to who could be present, for seven days after the election with respect to all ballots in a county, that was mandatory and only available, as we heard last week, for tabulation error up until this election.

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

Justice Souter: Well, on ad hoc judicially created procedures, the point of subsection 8 of 168.

I mean, once we get into the contest phase, subsection 8 gives at least to the circuit court, leaving aside the question of appellate jurisdiction, about as broad a grant to fashion orders as I can imagine going into a statute.

Mr. Olson: Well, to read that, to read that provision and it's written quite broadly, but to read that, one has to read that in the context of the entire statutory framework.

If one reads it the way the Florida Supreme Court did, the entire process is tilted on its head.

Where there used to be the decision that was in the election officials, it now becomes in the court.

All of the limitations on the remand process that existed during the protest phase, where the standards should be lower because it's earlier in the process are thrown out the window.

The time tables are thrown out the window.

The process that exists are there and one has to...

Justice Souter: What's the timetable in 168?

Mr. Olson: There is no timetable.

Justice Souter: That's right.

There is no timetable there.

So that seems to undercut your timetable argument once you get into the contest phase from the protest phase.

Mr. Olson: But that's only if you untether 168 entirely from the statute and the steam by which the protest phase takes place over a period of seven to 10 days in the context of this election, and the contest phase occurs over the next four weeks.

Justice Souter: It may well be and I'll grant you for the sake of argument that there would be a sound interpretive theory that in effect would coordinate these two statutes, 166 and 168, in a way that the Florida Supreme Court has not done.

But that's a question of Florida Supreme Court statutory construction and unless you can convince us, it seems to me, that in construing 168, which is what we are concerned with now, and its coordination or lack of coordination with 166, the Florida Supreme Court has simply passed the bounds of legitimate statutory construction, then I don't see how we can find an Article II violation here.

Mr. Olson: Well, I am hoping to convince you that they passed far beyond the normal limits of statutory construction.

The changing of the meaning...

Justice Souter: You have convinced us certainly that there is a disagreement about how it should be construed, and that disagreement is articulated by the dissents in the most recent case.

But I don't quite see where you cross the line into saying that this has simply become a nonjudicial act.

It may or may not be good statutory construction, but I don't see it as a nonjudicial act.

Mr. Olson: It is, it is, we submit an utter revision of the timetables, the allocation.

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

Mr. Olson: That's correct.

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

Mr. Olson: We are not just saying timetables.

We are saying that it has wrenched it completely out of the election code which the legislature very carefully crafted to fit together and work in an interrelated fashion.

It isn't just the timetable.

The fact that there are timetables which are very important in a presidential election, we are today smack up against a very important deadline, and we are in the process where...

Justice Souter: Yes, you are.

But that is a deadline set by a safe harbor statute for the guidance of Congress and it's a deadline that has nothing to do with any text in 168.

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

Justice Souter: And it took that into consideration in fashioning its orders under subsection 8.

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

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

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

Mr. Olson: Well, because we said...

Justice Souter: We'd find out.

Mr. Olson: Because we argued, and I believe that there is a very firm basis for saying that that process already had violated Article II of the Constitution.

It was also already throwing in jeopardy compliance with Section 5 of Title 3 because the laws had been changed in a number of different respects and we have recited them.

The timetables are important.

Justice Kennedy: Oh, and I thought your point was that the process is being conducted in violation of the Equal Protection Clause and it is standardless.

Mr. Olson: And the Due Process Clause, and what we know is now the new system that was set forth and articulated last...

Justice Breyer: In respect to that...

Mr. Olson: Pardon me?

Justice Breyer: In respect to that, if it were to start up again, if it were totally hypothetically, and you were counting just undercounts, I understand that you think that the system that's set up now is very unfair because it's different standards in different places.

What in your opinion would be a fair standard, on the assumption that it starts up missing the 12th deadline but before the 18th?

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

Justice Breyer: All right, a uniform way of evaluating.

What would the standard be, because this is one of your main arguments...

Mr. Olson: Well, the standard...

Justice Breyer: You say the intent of the voter is not good enough.

You want substandards.

Mr. Olson: We want...

Justice Breyer: And what in your opinion would be the most commonly used in the 33 states or whatever, or in your opinion, the fairest uniform substandard?

Mr. Olson: Well, certainly at minimum, Justice Breyer, the penetration of the ballot card would be required.

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

Justice Breyer: You're looking at, then, basically Indiana.

Is Indiana, in your opinion or pre... or 1990 Palm Beach, are either of those fair, or what else?

Mr. Olson: It's certainly a starting point, and the...

Justice O'Connor: Well, would the starting point be what the Secretary of State decreed for uniformity?

Is that the starting point...

Mr. Olson: That is correct.

Justice O'Connor: Under the Florida legislative scheme?

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

Justice O'Connor: And what standard did the Secretary of State set?

Mr. Olson: She had not set one, and that's one of the objections that we had with respect to the process that... the selective process that existed and that we discussed in conjunction with the December... the November 21st position.

Not only was there not a standard, but there was a change two or three times during the course of this process with respect to the standard that I was just discussing.

Justice Kennedy: I understand that she has the expertise and let's assume that under Florida state law she's the one with the presumptive competence to set the standard.

Is there a place in the Florida scheme for her to do this in the contest period?

Mr. Olson: I don't think there is.

There is no limitation on when she can answer advisory opinions.

Justice Kennedy: Even in the contest period?

Mr. Olson: I don't... I think that that's correct.

Now, whether or not if there was a change as a result of that, of the process, whether there would be problems with respect to section 5 I haven't thought about, but...

Justice Kennedy: No, if there's...

Justice Souter: If this were remanded...

Justice Kennedy: Go ahead.

I'm sorry.

Justice Souter: If this were remanded to the Leon County Circuit Court and the judge of that court addressed the Secretary of State, who arguably either is or could be made a party, and said please tell us what the standard ought to be, we will be advised by your opinion, that would be feasible, wouldn't it?

Mr. Olson: I think it would be feasible.

Now, counsel for the Secretary of State will be up in a moment, immediately after me.

As I understand, however, the election code, she would have the power to respond to that inquiry.

In fact, under the very first, as I mentioned, the very first section of the election code, sub 1, she is not only the chief election officer, but has 5 responsibility...

Justice Breyer: But I would still like to get your view as to what would be the fair standard.

Mr. Olson: Well, certainly one that would... I don't... I haven't crafted it entirely out.

That is the job for a legislature.

Justice Breyer: I would still like to get your opinion insofar as you could give it.

Mr. Olson: I think part of that standard is it would have to be applied uniformly.

It would have to be... I would think a reasonable standard is, would have to be at minimum a penetration of the chad in the ballot, because indentations are no standards at all.

There are other procedural standards in the...

Justice Stevens: Mr. Olson, was the Palm Beach standard that you referred in your brief applied statewide and uniformly?

You refer to the Palm Beach standard having changed.

Was the Palm Beach standard ever applied on a statewide basis?

Mr. Olson: I believe it was not, Justice Stevens.

Justice Stevens: And can we possibly infer from the failure of the Secretary of State to promulgate a statewide standard that she might have inferred that the intent of the voter is an adequate standard?

Mr. Olson: No, I don't think it's a fair inference either way.

Remember in response to the question from I think it was Justice Scalia the last time we were here, this is the first time we've had a manual recount for anything other than arithmetic tabulation error.

This is something that is unprecedented in the State of Florida.

That's another change that took place.

Justice Ginsburg: Mr. Olson, you have said the intent of the voters simply won't do, it's too vague, it's too subjective, but at least, at least those words, intent of the voter, come from the legislature.

Wouldn't anything added to that be... wouldn't you be objecting much more fiercely than you are now if something were added to the words that the all powerful legislature put in the statute?

Mr. Olson: Well, I think we have to distinguish between whether we're talking about a prospective uniform standard as opposed to something that changes the process in the middle of the counting and evaluating of disputes.

But it certainly would...

Justice Ginsburg: But if we're talking about the contest period, and the statute, as Justice Souter pointed out, speaks with amazing breadth.

It says that... this is the text...

"shall fashion any order he or she deems necessary to prevent or correct any wrong and to provide any relief appropriate under the circumstances. "

I couldn't imagine a greater conferral of authority by the legislature to the circuit judge.

Mr. Olson: But we submit in the context of the entire election code itself.

Now, the intent of the voter standard, the one that's been cited and relied upon by our opponents most, is a provision that's contained in the provision of the election code that deals with damaged or spoiled ballots.

Justice Souter: Okay, but we have... there's no question that the closest we can come now under Florida law is an intent of the voter standard.

Is it your position that if any official, judicial or executive, at this point were to purport to lay down a statewide standard which went to a lower level, a more specific level than intent of the voter, and said, for example, count dimpled chads or don't count dimpled chads.

In your judgment, would that be a violation of Article II?

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

Justice Souter: All right, so...

Mr. Olson: If we went from the standard that existed before, the dimpled chads, that that had not been a standard anywhere in Florida, if that change was made, we would strongly urge that that would be a violation of Article II.

Justice Scalia: Mr. Olson...

Mr. Olson: It would be a complete change.

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

Mr. Olson: That's absolutely correct, Justice Scalia.

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

Mr. Olson: That's correct, they've been euphemistically... this has been euphemistically referred to as legal votes that haven't been counted.

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

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

They interpreted the statute otherwise.

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

Mr. Olson: Yes, that is our contention, and that has to be done.

That contention is based upon everything else in the Florida statute, including the contest provisions.

The manual recount provisions...

Justice Souter: What is it in the contest provision that supports the theory that that was a rogue, illegal judicial act?

Mr. Olson: Because there is no reference to them, even though that process is referred to...

Justice Souter: There's no definition.

There's no definition.

Doesn't the court have to come up with a definition of legal votes?

Mr. Olson: In the context, in the context of the statute as a whole, manual recounts are treated quite extensively as a last resort for tabulation error at the discretion of canvassing officials.

Justice Souter: At the protest stage?

Mr. Olson: That's correct.

Justice Kennedy: Mr. Olson...

Mr. Olson: We submit... and I would like to reserve the balance of my time.

Justice Stevens: Mr. Olson, is it critical to your position that the Florida Supreme Court erred in its resolution of the shall/ may controversy in its first opinion?

Mr. Olson: I'm sorry, I missed...

Justice Stevens: Is it critical to your position, because you're tying the two cases together, that the Florida Supreme Court made that kind of error in its resolution of the conflict between shall and may in the disparate statute?

Mr. Olson: I don't think it's critical.

What we're saying is that the court expanded upon its previous decision that was vacated in this case, it used the time period that it opened up to do this manual recount to then build upon in the December 8th opinion.

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:

If I could start by addressing a question of Justice Souter with respect to the standards, 166 does have time limits.

The time limit of 166 is set by the certification, which is seven days after the election.

The time of the contest, there are time limits there as well.

You have ten days to file a complaint, ten days to file an answer, and in the context of a presidential election, you then of course have the December 12 deadline.

So therefore, there are time...

Justice Souter: Which is federal, not state, and occurs in the safe harbor statute, or as a result of the safe harbor statute.

Rebuttal of Theodore B. Olson

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

Justice Souter: Oh, there is no...

Justice Scalia: I thought the Florida court accepted that, too, in its current opinion.

Rebuttal of Joseph P. Klock Jr.

Mr. Klock: They did say that exactly, Your Honor.

Chief Justice Rehnquist: Mr. Klock, will you... you refer to the first Harris case.

We think of it as the first Bush v. Gore case.

You are talking about the same...

Mr. Klock: Yes, Your Honor.

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

Mr. Klock: I'll try to answer that question.

You would start, I would believe, with the requirements that the voter has when they go into the booth.

That would be a standard to start with.

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

The whole issue of what constitutes a legal vote which the Democrats make much ado about presumes that it's a legal vote no matter what you do with the card.

And presumably, you could take the card out of the polling place and not stick it in the box and they would consider that to be a legal vote.

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

Justice Breyer: No, we're asking, I think...

Mr. Klock: No.

Justice Breyer: Not what the Florida election law is at this point in your opinion, but rather if under the Equal Protection Clause, and I'm drawing on your experience as a person familiar with elections across the country.

You have looked into this.

Mr. Klock: Yes, sir.

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

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

Mr. Klock: Without being disrespectful, Your Honor, I think you have answered the question in terms of phrasing the question.

There are any number of statutory schemes that you could select from if you were a legislature, but as a court, I don't think that the Supreme Court of Florida respectfully, or any other court can sit down and write the standards that are going to be applied.

If you are a legislature...

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

Mr. Klock: If I were to take one out of a hat, Your Honor, if I was a legislature, what I would do is I would hold that you have to punch the chad through on a ballot.

In those situations where you have a ballot where there are only indentations in every race, you might then come up with a different standard, but the only problem that we have here is created by people who did not follow instructions.

Justice Breyer: Okay.

Can I ask you a different question on Florida law?

Mr. Klock: Yes, sir.

Justice Breyer: And the question on Florida law is simply this, what the statute is.

I take it the contest statute lists grounds for contesting, one of those grounds is rejecting a sufficient number of legal votes sufficient to place the election in doubt, and then the circuit judge is given the power to investigate that allegation, just to look into it.

Mr. Klock: Yes.

There were no...

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

Mr. Klock: The Justice's question assumes that they are legal votes.

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

Mr. Klock: Your Honor, if they are not properly, if the ballot is not properly executed, it's not a legal vote.

The only case in Florida that even touches upon this in terms of a machine ballot is the Hogan case from the Fourth District Court of Appeal.

In the Fourth District Court of Appeal, that candidate lost by three votes, and he went during the protest phase to the canvassing board and asked for a manual recount to be done and they exercised their discretion and said no.

And in that case, there is a discussion.

He raised the argument that there were ballots in there that had hanging chads and this that and the other thing.

They would hear none of it and when it went up on appeal, it was affirmed.

So the fact of the matter is that the only case that we have that deals with this handles it in that fashion, and I would respectfully suggest that a ballot that is not properly punched is not a legal ballot.

And I think also, sir, if you go through an analysis of the Vice President's arguments in supporting what the Supreme Court does, there is sort of an omelet that is created by going and picking through different statutes.

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

And the Beckstrom case, which you will no doubt hear much about as the argument proceeds, dealt with that kind of situation.

There was a manual recount there; the court did not pass on the propriety of it.

The issue was if the election officials took ballots and marked over the ballots instead of creating a separate substitute ballot, they took that ballot and marked it over so it could go through an optical scanner, which the court found to be gross negligence whether they would discount the votes.

That was the issue that was present there.

So I think if you look through Florida law it is relatively clear that there was no basis whatsoever to be able to find...

Justice Stevens: Let me just ask this question.

If you did have a situation, I know your position is different, where there were some uncounted ballots due to a machine malfunction, for example, would it not make sense to assume that the standard used for damaged ballots would be the same standard you use in that situation?

Mr. Klock: I don't think so, sir.

Justice Stevens: What standard would you use in the situation I propose, then?

Mr. Klock: Well, Justice Brennan, the difficulty is that under... I'm sorry.

That's why they tell you not to do that.

The standard that is in 166 is in, is dealing with the protest phase, and it was brought about in 1988.

Justice Stevens: I understand, but my question is if you don't use that standard, what standard would you use for my hypothetical?

Mr. Klock: The legislature would have to create one, sir.

I don't know what standard...

Justice Souter: You are saying that they can't interpret a statute in which there is no explicit definition.

Mr. Klock: What I'm saying is...

Justice Souter: They have to throw their hands up?

Mr. Klock: No.

Justice Breyer, what I'm saying is that...

Justice Souter: I'm Justice Souter... you'd better cut that out.

Mr. Klock: I will now give up.

What I'm saying, sir, is this.

That you cannot be in a situation of using the word interpret to explain anything that a court does.

The word interpret cannot carry that much baggage.

Justice Souter: But you go to the opposite extreme and say, it seems to me, that they cannot look, as Justice Stevens suggested, to a statute which deals with, and certainly a closely analogous subject at a near stage, and it seems to me that you in effect go to the opposite extreme that you are excoriating the Florida Supreme Court for and say they can't interpret at all.

Mr. Klock: I think what the Florida Supreme Court should do in that instance is note the very tight restrictions that exist under the protest phase.

They require that you find voter intent with respect to a damaged ballot.

They also vested in the canvassing board, and the canvassing board is composed of a certain, a defined group of officials, a county judge, the election supervisor, the chairman of the county commission, it is very limited.

Justice Souter: But that means the court apparently cannot define legal vote.

Mr. Klock: That's correct.

Justice Scalia: Mr. Klock... I'm Scalia.

Mr. Klock: Yes, sir.

I remember that.

Correct me.

It will be hard to forget.

Justice Scalia: Correct me if I'm wrong, but I had thought that although you don't take into account improperly marked ballots for purposes of determining whether there will be a manual recount, I had thought that when there is a manual recount for some other reason, and you come across ballots of this sort that you can count them, that for that purpose you can decide oh, look at, there is a hanging chad.

The machine didn't count it.

It's clear what the intent of the voter are.

We'll count it.

Is that not correct?

Mr. Klock: Yes.

Justice Scalia, that is correct.

If you have a situation...

Justice Stevens: It's correct if you use the intent of the voter standard in that situation?

Mr. Klock: Pardon me, sir?

Justice Stevens: It's correct that you use the intent of the voter situation, standard in that situation?

Justice Breyer: That's what I understand the answer to be.

Mr. Klock: It is correct that that statute provides that.

That I think that that statute, there could be problems under it, but that statute was designed for a very limited situation where there was a problem with the mechanism of voting.

It was not designed to handle voter error and that is absolutely clear because otherwise, Your Honor, what would occur is the following.

That in every election that have you that was close, you would have an automatic recount and then irrespective of what the canvassing board does, just load all the ballots together and put them on a truck and send them to Tallahassee because if there is no standard whatsoever and in any election contest that you are unhappy with the election, you can send the ballots to Tallahassee, then have you a problem that is created that would not exist...

Argument of David Boies

Chief Justice Rehnquist: Thank you, Mr. Klock.

Mr. Boies, we'll hear from you.

Mr. Boies: Thank you, Mr. Chief Justice, may it please the court.

Let me begin by addressing what happened in the Beckstrom case that Mr. Klock refers to.

Justice Kennedy: Could we begin with jurisdiction, first?

Mr. Boies: Yes.

Justice Kennedy: The Supreme Court of Florida said that it took, that it was cognizant, and the legislature was cognizant of 3 U.S.C. Section 5.

And for convenience sake, let's call that new law.

Justice Breyer: That's not exactly the...

Justice Kennedy: When the Supreme Court used that word, I assume it used it in a legal sense.

Cognizance means to take jurisdiction of, to take authoritative notice.

Why doesn't that constitute an acceptance by the Supreme Court of the proposition that 3 USC section 5 must be interpreted in this case?

Mr. Boies: I think, Your Honor, and obviously this Court and the Florida Supreme Court is the best interpreter of that opinion, but I think a reasonable interpretation of that opinion is to say that what the Florida Supreme Court meant by cognizant is that it was taking into account the desire to get the election over in time so that everyone would have the advantage of the safe harbor.

I think that goes throughout the opinion.

Justice Kennedy: Well, the language used in 3 USC section 5 is garden variety language so far as the courts are concerned.

We can determine whether or not there is a new law or an old law.

That's completely susceptible of judicial interpretation, is it not?

Mr. Boies: Yes, I think it is, Your Honor.

Justice Scalia: All right.

Justice Kennedy: And it seems to me that if the Florida court, and presumably the Florida legislature have acted with reference to 3 USC section 5 that it presents now a federal question for us to determine whether or not there is or is not a new law by reason of the various Florida supreme... two Florida Supreme Court decisions.

Mr. Boies: Except, Your Honor, what the Florida Supreme Court did I think in its opinion is to say that in terms of looking at how to remedy the situation, it needed to be cognizant of the fact that there was this federal deadline out there that was going to affect Florida's electors if that deadline was not met.

Justice Kennedy: Well, of course the deadline is meaningless if there's a new law involved.

That's part of the equation, too.

Mr. Boies: Yes, but what I would say is that whether or not there is a new law, that is whether there's a change in the enactment in the language of the statute or the constitution, is something that has to be decided in the initial instance by the Florida Supreme Court interpreting Florida law.

Chief Justice Rehnquist: There really... Mr. Boies, there are really two parts to that sentence of section 5 we're talking about.

One is the law in effect at the time and the other is finally determined six days before the date for choosing the electors.

Do you think the Florida court meant to acknowledge... it seems to me since it's cited generally, they must have acknowledged both of those provisions.

Mr. Boies: I don't know exactly what was in the Florida Supreme Court's mind, but I think that in general what the Florida Supreme Court made quite clear is that the thing that was constraining it was the desire to fit its remedy within the safe harbor provision.

Chief Justice Rehnquist: So that's the finally determined portion of section 5?

Mr. Boies: Yes, Your Honor, yes, I think that's right.

And I think it does not reflect a desire to change the law or in any way affect what the substantive law is.

What the court is saying is...

Justice Kennedy: Let me ask, could the legislature of the State of Florida, after this election, have enacted a statute to change the contest period by truncating it by 19 days?

Mr. Boies: You mean by shortening it?

Justice Kennedy: Without contravening the section which says that there should be no new law for the safe harbor?

Could the Florida Supreme Court have done what the... could the Florida legislature have done what the supreme court did?

Mr. Boies: I think that it would be unusual.

I haven't really thought about that question.

I think they probably could not...

Justice Kennedy: Consistently, because that would be a new law under section 5, wouldn't it?

Mr. Boies: Yes, because it would be a legislative enactment as opposed to a judicial interpretation of an existing law.

Remember...

Justice Kennedy: And in fact it would be a new law under our pre-clearance jurisprudence, wouldn't it?

Mr. Boies: I think not, Your Honor, because if you go back to the State against Chappell in 1988, where the Florida Supreme Court faced the very question of whether or not that seven-day period was an iron curtain that came down, the Florida Supreme Court said it was not.

The Florida Supreme Court said that you had to look as to whether there was substantial compliance.

In that case three days was found to be substantial compliance.

That was a situation in which there was telephone notice, which was not adequate for certification.

That was then followed up...

Justice Kennedy: But if we assume the legislature would run contrary to the new law prohibition in the statute, wouldn't the Supreme Court do it if it does exactly the same thing?

Mr. Boies: Except what I'm saying, Your Honor, is that it wasn't doing exactly the same thing because it wasn't passing a new law.

It was interpreting the existing law.

If the legislature had said, for example the legislature...

Justice Kennedy: I'm not sure why... if the legislature does it it's a new law and when the supreme court does it, it isn't.

Both would have to require... you have to pre-clear judicial rulings and see whether they make new laws, don't you?

Mr. Boies: What I'm saying, Your Honor, is that if the supreme court had rewritten the law the way you hypothesized the legislature rewrote the law, it might very well be a difference.

What I'm saying is that the Florida Supreme Court did not rewrite the law in the way that you hypothesized.

What the Florida Supreme Court was confronted with was a statute, and that statute said that... and it was the later passed statute, we get back into the may and the shall.

The may statute was the later passed statute, and so what the Florida Supreme Court said is we have to look at what is the criteria by which you decide whether you may ignore and will ignore these returns, and what the Florida Supreme Court said, we're going to interpret that exactly the way we've interpreted it for 25 years, and 12 years before the Florida Supreme Court made this decision, it had made the State against Chappell decision in which it had approached it from exactly the same policy grounds.

Justice Scalia: Well, it was quite a different... I mean, there, indeed, telephone notification had been given within the deadline, and the actual written material was not submitted until a few days after.

I think that's quite a bit different from extending the period generally and for all submissions for, you know... but if I could... I'm not sure that you and Justice Kennedy are disagreeing on very much.

It seems to me you acknowledge that if the Florida Supreme Court's interpretation of this law were not a reasonable interpretation, just not one that would pass normal judicial muster, then it would be just like the legislature writing a new law, but your contention here is that this is a reasonable interpretation of Florida law.

Mr. Boies: I think the way I would put it, Your Honor, is that if you conclude that the Florida Supreme Court's interpretation of Florida law is either a sham or it is so misguided that it is simply untenable in any sense...

Justice Kennedy: Right.

Mr. Boies: I think at that point then you can conclude that what it has done is it has changed the law, but I think the standard is the standard this Court has generally applied in giving deference to state supreme court decisions.

Justice O'Connor: But is it in light of Article II?

I'm not so sure.

I mean, I would have thought that that bears on the standard, frankly, when it contemplates that it is plenary power in the legislature.

Does that not mean that a court has to, in interpreting a legislative act, give special deference to the legislature's choices insofar as a presidential election is concerned?

I would think that is a tenable view anyway, and especially in light also of the concerns about section 5.

Mr. Boies: I think, Your Honor, that if the Florida Supreme Court in interpreting the Florida law, I think the Court needs to take into account the fact that the legislature does have this plenary power.

I think when the Florida Supreme Court does that, if it does so within the normal ambit of judicial interpretation, that is a subject for Florida's Supreme Court to take.

Justice O'Connor: You are responding as though there were no special burden to show some deference to legislative choices.

In this one context, not when courts review laws generally for general elections, but in the context of selection of presidential electors, isn't there a big red flag up there, watch out?

Mr. Boies: I think there is in a sense, Your Honor, and I think the Florida Supreme Court was grappling with that.

Justice O'Connor: And you think it did it properly?

Mr. Boies: I think it did do it properly.

Justice O'Connor: That's, I think, a concern that we have, and I did not find really a response by the Florida Supreme Court to this Court's remand in the case a week ago.

It just seemed to kind of bypass it and assume that all those changes and deadlines were just fine and they would go ahead and adhere to them, and I found that troublesome.

Mr. Boies: Your Honor, if I could, one of the things that was argued from the beginning by Governor Bush's counsel and accepted by the Florida Supreme Court was that the protest statute and the contest statute were very separate procedures.

There was a time limit in the protest contest prior to certification, but there is no time limit in the contest statute process, which is what we are in now, and I think that the Florida Supreme Court was focusing on this contest period, which is what is really before, was before them and is before you, and in the contest...

Justice O'Connor: But I thought, and maybe I'm mistaken, but I thought it directed that certain votes that had been tabulated after the expiration of the original certification date were to be included now without reference to the point at all that their opinion had been vacated.

I just didn't know how that worked.

Mr. Boies: Well, there are three different groups of votes, okay?

And with respect... Broward, Palm Beach, and Miami-Dade.

With respect to Miami-Dade and Palm Beach, there was a trial.

There was a contest trial.

It is the appeal from that trial that is before this Court.

And the petitioners don't really refer to what's in the trial record but in that trial record, there was undisputed evidence that the votes that were counted there were valid legal votes.

Now, whether those votes were counted as part of the certification process or not...

Justice Kennedy: This was a...

Mr. Boies: Once you know they are valid votes...

Chief Justice Rehnquist: This was a trial, Mr. Boies, in the circuit court of Miami-Dade?

Mr. Boies: Yes.

No.

In the Circuit Court of Leon County.

Because it's a statewide election, the contest procedure takes you to Leon County, regardless of where the votes are cast.

But what the, what the, what the court found there, and there was undisputed evidence, and Mr. Richard, who was Governor Bush's counsel here, conceded that the Palm Beach Board had applied the appropriate standard in identifying votes, the so-called 215 additional net votes for Vice President Gore and Senator Lieberman.

What you had there was undisputed evidence, it was found as a matter of fact, and the Supreme Court reviewing that trial said you've had these votes identified by Miami-Dade, 168 net votes, by Palm Beach, 215 net votes, and those votes need to be included.

Not because...

Justice Breyer: It not only said...

Mr. Boies: It's a part of the certification process.

Justice Scalia: It not only said that.

It said that those votes have to be certified.

Mr. Boies: Yes, Your Honor.

Justice Scalia: It said that those votes had to be certified, which certainly contravenes our vacating of their prior order.

Mr. Boies: I think not, Your Honor, because when you look at the contest statute, it is a contest of the certification.

That is, the process is the results are certified and then what happens is you contest whether that certification is right.

Justice Scalia: I understand, but this, but what the Florida Supreme Court said is that there shall be added to the certification these additional numbers.

Mr. Boies: But that's true in any contest.

Every single contest...

Justice Scalia: It's not added to the certification.

Mr. Boies: Yes, of course it is, Your Honor.

Justice Scalia: You may do review of the ballots and add more numbers, but as I read the Florida Supreme Court opinion, it said the Secretary of State will certify these additional...

Mr. Boies: Yes.

Because the contest procedure is a procedure to contest the certification.

What you are doing is you are saying this certification is wrong.

Change it.

That's what every contest proceeding is.

And what the Florida Supreme Court was saying after this trial is yes, you proved that this certification is missing 250 votes.

Justice Scalia: The certification as rendered by the Secretary of State did not include those additional ballots for your client, and the Supreme Court directed that the certification would be changed to include those.

Mr. Boies: But, but Your Honor, that is what happens every time there is a successful contest.

The contest is a contest of the certification.

You have the certification results first.

Justice Kennedy: It doesn't make any sense to me.

Justice Scalia: You have a certification which is made by the Secretary of State.

That is what is contested.

Mr. Boies: Right.

Justice Scalia: And here the certification was directed to be changed.

Justice Kennedy: Let...

Justice Breyer: By the way, does it matter if they said in Palm Beach and, Palm Beach and Miami-Dade, the ones that the court said you must certify, if they were thrown into the other, said recount them.

If it's uncontested in the trial, I guess that you would get to the same place.

Mr. Boies: I think you get to exactly the same place.

Justice O'Connor: So it doesn't really matter.

Mr. Boies: I think it doesn't really matter what they said.

Justice Breyer: But Broward might?

Mr. Boies: But Broward might.

Justice Breyer: Would you object if they have a different standard to recounting those?

Mr. Boies: Broward is a different situation.

Chief Justice Rehnquist: Yes.

Mr. Boies: With respect to Broward, what you have is you have these votes that have been counted, and were included in the certification, and if were you to assume that that certification that came in on November 26th is somehow void, then those ballots would have to be considered just like the Dade and Palm Beach ballots, so I think there is a distinction between Broward and...

Justice Kennedy: Do you think that in the contest phase, there must be a uniform standard for counting the ballots?

Mr. Boies: I do, Your Honor.

I think there must be a uniform standard.

I think there is a uniform standard.

The question is whether that standard is too general or not.

The standard is whether or not the intent of the voter is reflected by the ballot.

That is the uniform standard throughout the State of Florida.

Chief Justice Rehnquist: That's very general.

Justice Kennedy: It runs throughout the law.

Even a dog knows the difference in being stumbled over and being kicked.

We know it, yes.

In this case... in this case what we are concerned with is an intent that focuses on this little piece of paper called a ballot, and you would say that from the standpoint of equal protection clause, could each county give their own interpretation to what intent means, so long as they are in good faith and with some reasonable basis finding intent?

Mr. Boies: I think...

Justice Kennedy: Could that vary from county to county?

Mr. Boies: I think it can vary from individual to individual.

I think that just as these findings...

Justice Kennedy: So that, so that even in one county can vary from table to table on counting these ballots?

Mr. Boies: I think on the margin, on the margin, Your Honor, whenever you are interpreting intent, whether it is in the criminal law, an administrative practice, whether it is in local government, whenever somebody is coming to government...

Justice Kennedy: But here you have something objective.

You are not just reading a person's mind.

You are looking at a piece of paper, and the supreme courts in the states of South Dakota and the other cases have told us that you will count this if it's hanging by two corners or one corner, this is susceptible of a uniform standard, and yet you say it can vary from table to table within the same county.

Mr. Boies: With respect, it is susceptible of a more specific standard, and some states, like Texas, have given a statutory definition, although even in Texas, there is a catch-all that says anything else that clearly specifies the intent of the voter.

So even, even where states have approached this in an attempt to give specificity, they have ended up with a catch-all provision that says look at the intent of the voter.

Justice Souter: But they have ended up with a catch-all provision because I assume there may be cases in which the general rule would otherwise operate in which there is an affirmative counter indication to what the general rule would provide, but I think what's bothering Justice Kennedy and it's bothering a lot of us here is we seem to have a situation here in which there is a subcategory of ballots in which we are assuming for the sake of argument since we know no better that there is no genuinely subjective indication beyond what can be viewed as either a dimple or a hanging chad, and there is a general rule being applied in a given county that an objective intent or an intent on an objective standard will be inferred, and that objective rule varies, we are told, from county to county.

Why shouldn't there be one objective rule for all counties and if there isn't, why isn't it an equal protection violation?

Mr. Boies: Let me answer both questions.

First, I don't think there is a series of objective interpretations, objective criteria that would vary county by county.

Justice Souter: All right.

But on the assumption that there may be, if we were fashioning a response to the equal protection claim, and we assume as a fact that there may be variations, wouldn't those variations as, from county to county, on objective standards, be an equal protection violation?

Mr. Boies: I don't think so.

I don't think so, Your Honor, because I think there are a lot of times in the law in which there can be those variations from jury to jury, from public official to public official.

Justice Souter: Yes, but in jury to jury cases, we assume that there is not an overall objective standard that answers all questions definitively.

We are assuming that there is detail that cannot be captured by an objective rule.

The assumption of this question, and I think, I think it's behind what's bothering Justice Kennedy, Justice Breyer, me and others, is, we're assuming there's a category in which there just is no other... there is no subjective appeal.

All we have are certain physical characteristics.

Those physical characteristics we are told are being treated differently from county to county.

In that case, where there is no subjective counter indication, isn't it a denial of equal protection to allow that variation?

Mr. Boies: I don't think, I don't think so, Your Honor, because... and maybe I am quarreling with a premise that says there are these objective criteria.

Maybe if you had specific objective criteria in one county that says we're going to count indented ballots and another county that said we're only going to count the ballot if it is punched through.

If you knew you had those two objective standards and they were different, then you might have an equal protection problem.

Justice Souter: All right, we're going to assume that we do have that.

We can't send this thing back for more fact finding.

If, if we respond to this issue and we believe that the issue is at least sufficiently raised to require a response, we've got to make the assumption, I think at this stage, that there may be such variation, and I think we would have a responsibility to tell the Florida courts what to do about it.

On that assumption, what would you tell them to do about it?

Mr. Boies: Well, I think that's a very hard question.

Justice Scalia: You would tell them to count every vote.

Chief Justice Rehnquist: We're telling them to count every vote.

Mr. Boies: I would tell them to count every vote.

Justice Scalia: Let me ask you, before you answer that question, Mr. Boies...

Mr. Boies: I think, I think I would say that if you're looking for a standard, and I say that not because of the particular aspects of this election... the Texas standard, if you wanted to specify something that was specific, gives you a pretty good standard.

Justice Stevens: Let me ask you this question, Mr. Boies.

Is it really, does not the procedure that is in place there contemplates that the uniformity will be achieved by having the final results all reviewed by the same judge?

Mr. Boies: Yes, that's what I was going to say, Your Honor, that what you have here is you have a series of decisions that people get a right to object to is all going through a process, the people are there.

They submit written objections, and then that's going to be reviewed by a court.

Justice Scalia: Well, all right.

That causes me some problems that pertain not just to the equal protection aspect of this, but to the rationality of the supreme court's opinion, because the supreme court opinion on the one hand said, as you've just repeated, that there was to be de novo review by the circuit judge in Leon County.

But on the other hand, it said that he had to accept the counts that had come out of Palm Beach and Broward counties.

It was clear that Broward and Palm Beach counties had applied different criteria to dimpled ballots.

One of them was counting all dimpled ballots, the other one plainly was not.

How can you at one and the same time say it's a de novo standard as to what is the intent of the voter, and on the other hand say, you have to accept, give some deference to, quite differing standards by two different counties?

That's just not rational.

Mr. Boies: Your Honor, I think what the court held was not include both Broward and Palm Beach.

I think it was Palm Beach and Miami-Dade, because Broward was not part of the trial because Broward had been certified, and with respect to Miami-Dade and Palm Beach, I do not believe that there is evidence in the record that that was a different standard.

I don't... and there's no finding at the trial court that that was a different standard.

Indeed, what the trial court found was that both Miami-Dade and Palm Beach properly exercised their counting responsibilities, so I don't think...

Justice Scalia: What do you mean?

Properly exercised what?

Their discretion, right?

Is that what he meant by counting responsibilities?

Mr. Boies: I believe what he meant, it was discerning the clear intent of the voter, which is what they were both attempting to do.

Chief Justice Rehnquist: Was this the trial before Judge Sauls?

Mr. Boies: Yes, Your Honor.

Chief Justice Rehnquist: I thought he ruled against the contestants, said they took nothing.

Mr. Boies: Yes, that is, that is right, but he did so based on what the Florida Supreme Court held, and what six justices of the Florida Supreme Court held were two errors of law.

First, that we had to prove before he looked at the ballots that there was a probability that the election result would be changed, and second, that we had to prove abuse of discretion.

Chief Justice Rehnquist: But the fact-finding phase of that trial would be from... you say these were found as a fact in some... did he make findings of fact?

Mr. Boies: Yes, he did.

Chief Justice Rehnquist: What did he say with respect to this?

Mr. Boies: With respect to this he said... he said it separately with respect to Miami-Dade and Palm Beach.

Because he found that they had properly exercised their discretion.

The Palm Beach chairman of the canvassing board actually was a witness, Judge Burton.

He came and testified, and he testified that they used a clear intent of the voter standard.

Chief Justice Rehnquist: As opposed to just intent of the voter?

Mr. Boies: Yes, just intent.

They used clear intent of the voter.

And the statute, sometimes, in one section says clear intent of the voter.

That's the one that Petitioners' counsel is referring to.

In 166, it refers in subsection 7(b) to the intent of the voter, but Palm Beach used the clear intent of the voter and found hundreds of ballots that they could discern the clear intent of the voter from that were not machine read.

Now, in doing so, they were applying Florida law, and like the law of many states, it has a general standard, not a specific standard.

Justice O'Connor: Were those dimpled or hanging chads, so to speak?

Mr. Boies: Well, what he testified is that you looked at the entire ballot, that if you found something that was punched through all the way in many races, but just indented in one race, you didn't count that indentation, because you saw that the voter could punch it through when the voter wanted to.

On the other hand, if you found a ballot that was indented all the way through, you counted that as the intent of the voter.

Justice O'Connor: With no holes punched?

Mr. Boies: With no holes punched, but, but where it was indented in every way.

Justice O'Connor: That was counted as proper in...

Mr. Boies: In Palm Beach.

Justice O'Connor: Palm Beach.

Mr. Boies: Another, another thing that they counted was he said they discerned what voters sometimes did was instead of properly putting the ballot in where it was supposed to be, they laid it on top, and then what you would do is you would find the punches went not through the so-called chad, but through the number.

Justice O'Connor: Well, why isn't the standard the one that voters are instructed to follow, for goodness sakes?

I mean, it couldn't be clearer.

I mean, why don't we go to that standard?

Mr. Boies: Well, Your Honor, because in Florida law, since 1917, Darby against State, the Florida Supreme Court has held that where a voter's intent can be discerned, even if they don't do what they're told, that's supposed to be counted, and the thing I wanted to say about the Beckstrom case is that was a case that used optical ballots.

Voters were told, fill it in with a number two pencil.

Several thousand didn't.

They used everything else, but not a number two pencil.

And so the machine wouldn't read it.

It was voter error.

The Supreme Court in 1998, well before this election, said you've got to count those votes.

And in fact, they counted those votes even though the way the canvassing board dealt with them was to go back and mark them over with a big black marker, which made it impossible to check whether the canvassing board had really just marked over the ballot or had put a new mark on the ballot.

Justice Scalia: Mr. Boies, can I come back to this discrepancy between Palm Beach and Broward County?

I'm reading from footnote 16 of the Florida Supreme Court's opinion.

On November 9, 2000, a manual recount was requested on behalf of Vice President Gore in four counties... Miami-Dade, Broward, Palm Beach, and Volusia.

Broward County and Volusia County timely completed a manual recount.

It is undisputed that the results of the manual recounts in Volusia County and Broward County were included in the statewide certifications.

Mr. Boies: Yes, Your Honor.

Justice Scalia: And those statewide certifications the Supreme Court ordered to be accepted.

So it is... the Supreme Court, while applying a standard of supposedly de novo review of the certifications, is requiring the Circuit Court to accept both Broward County, which does one thing with dimpled ballots, and Palm Beach County, which does something clearly different.

Mr. Boies: Your Honor, the de novo review is in the contest phase, and neither Volusia County nor Broward County was a contest filed.

What the Supreme Court holds is that you've got de novo review in a contest.

A contest relates to specific ballots that are contested.

The ballots in Broward and Volusia were not contested by any party.

Justice Scalia: But the determination that the circuit court has to make about whether it's necessary to have a recount is based upon the certifications.

Mr. Boies: No.

It's only based on the...

Justice Scalia: Which he then accepts...

Mr. Boies: No.

It's only based on the certifications that are contested.

In other words, if you are going to order the manual review of the ballots, the issue is what ballots are contested, and second, is there a judicial review of those ballots.

Justice Scalia: You have to know how close the state election was, don't you?

Mr. Boies: Yes.

But you...

Justice Scalia: For which purpose you'll accept the certifications.

Mr. Boies: Yes.

That's true.

Justice Scalia: And here...

Mr. Boies: And you had a certification.

Justice Scalia: And here you are telling him to accept it not de novo, but deferring to Broward County.

Mr. Boies: I think what the Supreme Court is saying is you have got a certification.

That certification shows a certain vote total.

Now, you take that certification until it is contested, and it can be contested by either or both parties.

You do not have, until it is contested, you do not have contested ballots.

Once have you contested ballots, then going back to State against Williams, Nuccio against Williams in 1929, cited in our papers, then it becomes a judicial question, and what the court holds is you then look at that as a judicial matter and that is why you have going on in Leon County the review of the Miami-Dade ballots under the court's supervision.

Now, I would point out that we asked to have the Miami-Dade ballots reviewed.

We also asked to have the 3,300 Palm Beach ballots reviewed, but the supreme court said no to us on that.

They said yes, you can have the 9,000 Miami-Dade ballots reviewed.

They also said, which we didn't ask for, they said as a matter of remedy, we want to review the undervotes all around the state.

Chief Justice Rehnquist: Mr. Boies, one of the dissenting justices in the Supreme Court of Florida said that meant 177,000 ballots.

Was he correct in your view?

Mr. Boies: No.

That is a result of adding the so-called undervotes that were mentioned and the so-called overvotes that were mentioned.

Either an undervote where no vote registers for president or an overvote where two or more registers for president are discarded, because you can't vote twice, and if you vote not at all, and in either circumstance, your vote doesn't get counted.

Chief Justice Rehnquist: So if you disagree that 177,000 ballots will be involved in this recount, how many do you think there are?

Mr. Boies: It's approximately 60,000, I think, Your Honor.

It turns out to be less than that because of the recounts that have already been completed, but I think the total sort of blank ballots for the presidency start at around 60,000.

Justice Stevens: Mr. Boies, can I ask, ask you this question.

Does that mean there are 110,000 overvotes?

Mr. Boies: That's right.

Justice Stevens: And if that's the case, what is your response to the Chief Justice of Florida's concern that the recount relates only to undervotes and not overvotes?

Mr. Boies: Well first, nobody asked for a contest of the overvotes, and the contest statute begins with a party saying that there is either a rejection of legal votes or an acceptance of illegal votes.

Justice Kennedy: But as a matter of remedy it's ordered a statewide recount in counties where the ballots were not contested, and that's where I'm having some difficulty, and it goes back to, in part to your answer that you gave to Justice Stevens... Justice Scalia about Broward County, and in part to the answer you are giving to Justice Stevens now.

Why is it that you say on the one hand to Justice Scalia, oh, well, these weren't part of the contest, but now all of a sudden we are talking about statewide, not all of which were contested, but we are not talking about the overvotes?

Mr. Boies: Two parts to the answer.

The reason that I said what I did to Justice Scalia was that I think that if this Court were to rule that there was something wrong with the statewide recounts, that they were being done by canvassing boards as opposed to directly by the court, or because the court was not supervising the particular expression of voter intent, what the court would have done is simply cut back on a remedy that we didn't ask for.

The second part is that when you are dealing with overvotes, remember, this is a machine issue.

When you are dealing with overvotes, the machine has already registered two votes.

Now, there may be another vote there, a dimpled vote or an indented vote that the machine did not register.

But once you get two votes, that ballot doesn't get counted for the presidency.

Justice Breyer: They gave an example.

The example they gave in their brief was there is a punch for Governor Bush, and then there is a punch for write-in and the write-in says I want Governor Bush and so I think their implication is that that would have been rejected by the machine, but if you looked at it by hand the intent of the voter would be clear.

Now I don't know if there are such votes, but they say there might be.

Mr. Boies: There is nothing in the record that suggests that there are such votes.

If anybody had contested the overvotes, it would have been a relatively simple process to test that because you could simply test it as to whether the double vote was a write-in vote or was another candidate.

Chief Justice Rehnquist: I gathered from the opinion of the Supreme Court of Florida that the Vice President did not ask for as broad a recount as the Supreme Court granted, but that it thought that to do just what he wanted would be unfair and therefore out of fairness, they granted the wider recount, am I correct in that?

Mr. Boies: I think that's right.

I think that's the way I would interpret it, Mr. Chief Justice.

Justice Scalia: Mr. Boies, I have one other perplexity about the scheme that's been set up here.

What... there is a very, as you point out, there is scant statutory provision concerning, concerning the contest.

There is quite detailed statutory provision concerning the protest period.

And it tells everybody how to act and time limits and all of that.

Why would anyone bother to go through the protest period, have these ballots counted by the canvassing boards, have them certify the results?

Why go through all that when the whole thing begins again with a contest?

There is no, no... once a contest filed, the certification is meaningless.

What advantage is there to win the protest?

Mr. Boies: It's not meaningless.

It becomes the baseline, and in every contest that has ever taken place, including this one, that has been the baseline that has determined 99-plus percent of the votes, and what is contested are simply those ballots that during the protest phase have been identified as disputed ballots, so that the, the protest phase solves 99 percent of the election or more.

What is left over are those ballots that one side or the other has contested, and that's what the contest deals with.

Justice Kennedy: My concern is that the contest period as we have been talking about requires the setting of standards, judicial review, and by reason of what I take it to be your earlier position in the litigation, this period has been truncated by 19 days, causing the time frame of which we are all so conscious, making it difficult for appellate review, and it seems to me, and we are getting back to the beginning of this, that the legislature could not have done that by a statute without it being under law, and that neither can the Supreme Court without it being a new law, a new scheme, a new system for recounting at this late date.

I'm very troubled by that.

Mr. Boies: But, Your Honor, at this... leaving aside the prior case about the extension of the time for certification, which I think at this stage you have to leave aside because at the contest stage, what you are doing is you are contesting specific ballots whether or not they were included in the certification.

It's absolutely clear under Florida law that that's what the contest is about, so at the contest stage, the only question is can you complete the contest of the contested ballots in the time available?

Everything that's in the record is, that we could have and indeed we still may be able to, if that count can go forward.

Chief Justice Rehnquist: Including appeals to the Supreme Court of Florida, and another petition to this Court?

Mr. Boies: Excuse me, Your Honor?

Chief Justice Rehnquist: I said after the circuit judge says that the contest comes out this way, surely there is going to be an appeal to the Supreme Court of Florida and likely another petition to this Court.

Surely that couldn't have been done by December 12th, could it?

Mr. Boies: Your Honor, I think, I think the appeal to the Florida Supreme Court could have and indeed the schedule that was set up would have made that quite possible.

There is about another day or so, except for, except for four or five counties, all of the counties would be completed in about another day.

And maybe even those counties could be now because as I understand it some of them have taken advantage of the time to get the procedures ready to count.

Chief Justice Rehnquist: Just a minute, Mr. Boies.

Wouldn't the Supreme Court of Florida want briefs and wouldn't the parties have needed time to prepare briefs?

Mr. Boies: Yes, Your Honor, but as we did in this Court, we have done in the Florida Supreme Court a number of times and that is to do the briefs and have the argument the next day and a decision within 24 hours.

Justice Scalia: After the counts are conducted in the individual counties, wouldn't the Leon County circuit judge have to review those counts?

After all, it's... I mean, the purpose of the scheme is to have a uniform determination.

Mr. Boies: To the extent that there are contested or disputed ballots...

Chief Justice Rehnquist: Right.

Mr. Boies: I think that may be so, Your Honor.

Justice Scalia: Well, wouldn't that take a fair amount of time and is that delegable?

I assume he would have to do that personally.

Mr. Boies: We believe that it could be done in the time available.

We also believe that we have available to us the argument that says you finished what we contested.

Although the supreme court has said as a matter of remedy it would be a good idea to do these other things that nobody asked for, that if it gets down to the point where you can... you have done the contest and you simply have not gotten completed all of this other remedy under 168 subsection 8, that we are still entitled under settled Florida law to have our votes counted.

Chief Justice Rehnquist: The supreme court said you had to do it all in the interest of fairness.

Mr. Boies: I think that what...

Chief Justice Rehnquist: I thought you agreed with me on that a moment ago.

Mr. Boies: I did, Your Honor.

I think that what they were saying is that as a matter of remedy this is the fairest way to do it.

I don't think they were saying that it would violate fundamental fairness to only take into account what you could get done in the time available.

There's nothing in the Supreme Court opinion that would suggest this.

Justice Scalia: Mr. Boies, would you explain to me again how the protest and the contest fits in.

You said that the... let's assume that my complaint that I want to protest is the failure to do undercounts to those ballots that were undercounted, okay?

That's my protest.

Mr. Boies: Right.

Justice Scalia: Why would I ever bring that in a protest proceeding?

Why wouldn't I just go right to the contest because it doesn't matter whether I win or lose the protest proceeding.

It's de novo at the contest stage.

What possible advantage is there to go through the protest proceeding?

Mr. Boies: If you've identified the ballots, you could presumably wait and do it at the contest phase.

There's no particular advantage to doing that.

The fact...

Justice O'Connor: I thought the advantage might be as described in the Florida case, Boardman v. Esteva, saying that the certified election returns which occur after the protest period are presumptively correct, and they must be upheld unless clearly outside legal requirements.

I thought that was Florida law.

Mr. Boies: Your Honor...

Justice O'Connor: Which would make it important to have a protest.

Mr. Boies: I think that's right.

I think that is right.

I would point out that...

Justice O'Connor: I think the Florida court has sort of ignored that old Boardman case.

Mr. Boies: Your Honor, I think the Boardman case relates not to the counting of votes, it has nothing to do with the standard in terms of the intent of the voter.

The Boardman case, the language that you're referring to is at page 268 of the Southern Reporter report of that case, and what is clear from that page and that discussion is it's dealing with the issue of whether or not because the canvassing board threw away the envelopes from the absentee ballots so they could not be checked, whether that invalidated the absentee ballots, and the court says no, it doesn't, because it's important to count all these votes, and because we assume that what they were doing was proper.

That does not, I respectfully suggest, at all deal with the question of deference to the voter intent determination which the court has repeatedly said is a matter for judicial determination.

The other thing that I would say with respect to intent is I know the Court is concerned about whether the standard is too general or not.

Some states have made specific criteria their law.

Other states, not just Florida... 10 or 11 of them, including Massachusetts, in the Dellahunt case that we cited, has stuck with this very general standard.

Justice Kennedy: All right, let's assume...

Mr. Boies: There's a sense where that may be an Article II issue.

Justice Souter: Mr. Boies, let's assume that at end of the day the Leon County, Florida judge, gets a series of counts from different counties, and they heard those counties have used different standards in making their counts.

At that point, in your judgment, is it a violation of the Constitution for the Leon County judge to say, I don't care that there are different standards as long as they purported to fall on intent of the voter, that's good enough.

Chief Justice Rehnquist: I'll extend your time by two minutes, Mr. Boies.

Mr. Boies: Yes.

I do not believe that that would violate the equal protection of due process clause.

That distinction between how they interpret the intent of the voter standard is going to have a lot less effect on how votes are treated than the mere difference in the types of machines that are used.

Justice Souter: Then the fact that there is a single judge at the end of the process, in your judgment, really is not an answer to the concern that we have raised.

Mr. Boies: No, I think it is an answer.

I think there are two answers to it.

First, I think that the answer that they did it differently, different people interpreting the general standard differently, would not raise a problem even in the absence of judicial review of that.

Second, even if that would have raised a constitutional problem, I think the judicial review that provides the standardization would solve that problem.

The third thing that I was saying is that any differences as to how this standard is interpreted have a lot less significance in terms of what votes are counted or not counted than simply the differences in machines that exist throughout the counties of Florida.

There are five times as many undervotes in punch card ballot counties than in optical ballot counties.

Now, for whatever that reason is, whether it's voter error or machine problems, that statistic, you know, makes clear that there is some difference in how votes are being treated county by county.

That difference is much greater than the difference in how many votes are recovered in Palm Beach or Broward or Volusia or Miami-Dade, so that the differences of interpretation of the standard, the general standard are resulting in far fewer differences among counties than simply the differences in the machines that they have.

Justice Ginsburg: Thank you, Mr. Boies.

Mr. Boies: Thank you very much.

Rebuttal of Theodore B. Olson

Chief Justice Rehnquist: Mr. Olson, you have five minutes 13 remaining.

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

I would like to start with a point or two with respect to the equal protection due process component of this case.

The Florida Democratic Party on November 20 was asking the... november 20th of this year, was asking the Florida Supreme Court to establish uniform standards with respect to the looking at and evaluating these ballots, a recognition that there were no uniform standards and that there ought to be.

Last Tuesday in the 11th Circuit, unless I misheard him, the attorney for the Attorney General of Florida said that the standards for evaluating these ballots are evolving.

There is no question, based upon this record, that there are different standards from county to county.

Justice Ginsburg: And there are different ballots from county to county too, Mr. Olson, and that's part of the argument that I don't understand.

There are machines, there's the optical scanning, and then there are a whole variety of ballots.

There is the butterfly ballot that we've heard about and other kinds of postcard ballots.

How can you have one standard when there are so many varieties of ballots?

Mr. Olson: Certainly the standard should be that similarly situated voters and similarly situated ballots ought to be evaluated by comparable standards.

Justice Ginsburg: Then you would have to have several standards, county by county?

Mr. Olson: You're certainly going to have to look at a ballot that you mark in one way different than these punch card ballots.

Our point is, with respect to the punch card ballots, is that there are different standards for evaluating those ballots from county to county and it is a documented history in this case that there have been different standards between November 7th and the present with respect to how those punch card ballots are evaluated.

Palm Springs is the best example.

They started with a clear rule which had been articulated and explained to the voters, by the way, as of 1990.

Then they got into the process of evaluating these ballots and changed the standard from moment to moment during the first day and again, they evolved from the standard that the chad had to be punched through to the so-called dimpled ballot standard, indentations on the ballot.

There was a reason why that was done.

It was because they weren't producing enough additional votes so that there's pressure on to change the standards.

And that will happen in a situation which is where the process is ultimately subjective, completely up to the discretion of the official, and there's no requirement of any uniformity.

Now, we now have something that's worse than that.

We have standards that are different throughout 64 different counties.

We've got only undercounts being considered where an indentation on a ballot will now be counted as a vote, but other ballots that may have indentations aren't going to be counted at all.

The overvotes are in a different category, and in this very remedy the ballots in Miami-Dade are being treated differently.

Some of them have been all examined and the balance of the process, the remaining 80 percent will be looked at only in connection with the undercounts.

Justice Ginsburg: Mr. Olson, do I understand that your argument on the equal protection branch would render academic what was your main argument that's troublesome, that is that we must say that the Florida Supreme Court was so misguided in its application of its own law that we reject that, and we, the Supreme Court of the United States, decide what the Florida law is?

Mr. Olson: I'm not sure I know the answer to that question, whether that would render academic the challenge.

There is a clear constitutional violation, in our opinion, with respect to Article II because virtually every aspect of Florida's election code has been changed as a result of these two decisions.

Justice Ginsburg: But the Florida Supreme Court told us that it hasn't been changed and just looking at one of the cases that you cite frequently, the O'Brien against Skinner case, this court said, well, maybe we would have decided the New York law differently but the highest court of the state has concluded otherwise.

It is not our function to construe a state statute contrary to the construction given it by the highest court of the state.

Mr. Olson: The only thing I can say in response to that is that what this Court said one week ago today, that as a general rule the court defers to a state court's interpretation of a state statute, but not where the legislature is acting under authority granted to it by the Constitution of the United States.

The final point I would like to make is with respect to section 5.

It is quite clear that the court in both the earlier decision and the decision last Friday was aware and concerned about compliance with section 5.

It construed section 5 in a way that allowed it by labeling what it was doing as interpretation to change in dramatic respects the Florida election law, and we submit because it did, so misconstrued the applicability not only with respect to finality but the other part of section 5 requires a determination of controversies pursuant to a set of laws that are in place at the time of the elections.

Justice Breyer: If you start with the premise, a clear intent of a vote should count, where there's a clear intent on the ballot, it should count as a vote, can't you reasonably get the majority's conclusion?

Mr. Olson: I don't believe so because we know different standards were being applied to get to that point, and they were having different results.

Chief Justice Rehnquist: Thank you, Mr. Olson.

The case is submitted.