Bush v. Gore

United States Supreme Court Oral Arguments

delivered 11 December 2000


REHNQUIST: We'll hear argument now in number 00949, George W. Bush and Richard Cheney v. 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?

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

OLSON: The federal question arises out of the fact that the Florida Supreme Court was violating Article II, Section 1 of the Constitution, and it was conducting itself in violation of Section 5 of Title 3 of federal law.

KENNEDY: On the first, it seems to me essential to the Republican theory of government that the constitutions of the United States and the states are the basic charter.

And to say that the legislature of the state is unmoored from its own constitution and it can't use its courts and it can't use its executive agency -- even you, your side, concedes it can use a state agency -- it seems to me a holding which has grave implications for our republican theory of government.

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

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

OLSON: It did not do that here because it did not specify -- it did use the executive branch. In fact, it vested considerable authority in the secretary of state, designating the secretary of state as the chief elections official.

And, as we point out, the very first provision in the Election Code requires the secretary of state to assure uniformity and consistency in the application and enforcement of the election law. The secretary of state, as the executive branch, is also given considerable other responsibilities.

And to a certain extent, especially in connection with the contest phase of the election, certain authority was explicitly vested in the circuit court of the state of Florida, which is the trial court.

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

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

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

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

KENNEDY: I think that's right. (LAUGHTER)

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

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

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

OLSON: No, I would say this with respect to -- it would have been perfectly logical, and if you read the statutes, it's 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 deadlines, especially in the context of this election, the way it's played out, there is not time for an appellate court.

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.

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

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

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

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

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 5 of the Constitution as those cases dealt with?

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

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

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

STEVENS: Except you got to choose one version of the word "legislature" or the other.

OLSON: I think a different context is 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...

STEVENS: But is it the choice of the legislature or was it constitutionally limited to this provision? I'm a little unclear on what your theory is.

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

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

STEVENS: Define "would of." Under Leser v. Garnett, in those cases, did you...

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...

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?

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 compound acts by state legislatures to comply with it, make it quite clear that the power is vested in the legislature itself.

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

OLSON: I think the context of that case is different, and it is entirely possible for the court to have come to the conclusion it did in that case. And we believe that case is compelling for the principle that we're arguing in this case, that there is no -- the entire structure of what Florida did, its Election Code, in its effort to comply not only with Article II but with Section 5 of Title 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 in controversies and disputes with respect to the appointments.

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.

OLSON: And I think 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 all can be reconciled with what we're urging the court today, that a wholesale revision and abandonment of the legislative authority can't be turned over, especially sub silentio, by a legislature simply because there is a constitution. There is a constitution in every state; there's 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.

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?

OLSON: Well, I think that the dissenting opinion and the two dissenting opinions are very informative. We're relying on what the court did.

If one looks at, for example, the recount provisions, before this revision, under Florida law, manual recount under the protest provisions were discretionary, completely discretionary, conducted by canvassing boards during the protest phase of the 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 8, in this context, those remand provisions -- I mean those manual recount provisions, became mandatory instead of discretionary; pursuant to judicial rather than executive supervision, during the contest phase rather than the protest phase, even though it's not even mentioned in the statute with respect to the contest phase; pursuant to ad hoc, judicially established procedures rather than the procedures that are articulated quite carefully in the statute...

SOUTER: Well, aren't ad hoc, judicially created procedures the point of Subsection 8 of 168? I mean, once we get into the contest phase,

Subsection 8 gives at least to the circuit court, leaving aside the question of appellate jurisdiction, about as broad a grant to fashion orders as I can imagine going into a statute.

OLSON: Well, to read that, 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 timetables are thrown out the window. The process that exists are there...

SOUTER: What's the timetable in 168?

OLSON: There's no timetable...

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

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

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

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

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

But I don't quite see where you cross the line into saying that this has simply become a nonjudicial act. It may or may not be good statutory construction, but I don't see the...

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

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

OLSON: That's correct.

SOUTER: And what your argument boils down to, I think, is that they have insufficiently considered -- I'm sorry, in 168 -- that they have insufficiently considered 166 in construing 168.

And you may be right, but you have no textual quote in 168 to say untethered timetables imply, in effect, a nonjudicial act.

OLSON: We're not just saying timetables. We're saying that it has wrenched it completely out of the Election Code, which the legislature very carefully crafted to fit together and work in an interrelated fashion.

It isn't just the timetable. The fact that there are timetables, which are very important in a presidential election, we are today smack-up against a very important deadline and we're in a process where...

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

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

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

OLSON: And we submit that it incorrectly interpreted and construed federal law in doing that because what they have inevitably done is provide a process whereby it is virtually impossible, if not completely impossible

-- and I think it is completely impossible -- to have these issues resolved and the controversies resolved in time for that federal statutory deadline. Furthermore, it is quite clear, we submit, that the process has changed...

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

OLSON: Well, because we said...

SOUTER: You'd find out.

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

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

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

BREYER: But in respect to that...

OLSON: Pardon me?

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?

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 -- there's Palm Beach, for example...

BREYER: All right, uniform way of evaluating. What would the standard be, because this is one of your main arguments...

OLSON: Well, the standard...

BREYER: ... you say intent of the voter is not good enough, you want substandards. 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?

OLSON: Well, certainly, at minimum, Justice Breyer, the penetration of the ballot card would be required. Now, that's why I mentioned the Palm Beach standard that was articulated in writing and provided along with the ballot instructions to people voting, that the chad had to be punctured...

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

OLSON: It is certainly a starting point.

O'CONNOR: Well, would the starting point...

OLSON: And it's something that has ...

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

OLSON: That is correct, and...

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

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

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

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

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

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?

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

KENNEDY: Even in the contest?

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.

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

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

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's not only the chief election officer, but has responsibility...

BREYER: But I'd still like to get your view as to what would be the fair standard.

OLSON: Well, certainly one that would -- I don't -- I haven't crafted it entirely out. That is the job for a legislature.

BREYER: But I'd still like to get your opinion insofar as you could give it.

OLSON: I think that part of that standard is that it would have to be applied uniformly. It would have to be, I would think, a reasonable standard 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...

STEVENS: But, Mr. Olson, was the Palm Beach standard that you refer to 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?

OLSON: I believe it was not, Justice Stevens.

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?

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.

GINSBURG: Mr. Olson, you have said the intent of the voter simply won't do: It's too vague, it's too subjective. But 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?

OLSON: 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 certainly with...

GINSBURG: But if we're talking about the contest period, the statute, as Justice Souter pointed out, speaks with amazing breadth. It says that, "The circuit judge" -- this is the text --

"shall fashion any order he or she deems necessary to prevent or correct any wrong, and to provide any relief appropriate under the circumstances." I couldn't imagine a greater conferral of authority by the legislature to the circuit judge.

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

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

OLSON: I don't think it would be a violation of Article II, provided that -- I mean, the first part of your question... All right. So if we went from the standard that existed before, the dimpled chads that hadn't -- that that had not been a standard anywhere in Florida, if that change was made, we would strongly urge that that would be a violation of Article II, it would be a complete change...

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

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

SCALIA: The voters 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.

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

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

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

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

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

OLSON: Because there is no reference to them even though that process is referred to...

SOUTER: There's no definition. There's no definition. Doesn't the court have to come up with a definition of legal votes?

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



STEVENS: The protest?

OLSON: That's correct. And we submit... STEVENS Mr. Olson...

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

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

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

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 this pair of statutes?

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

REHNQUIST: Very well, Mr. Olson. Mr. Klock, we'll hear from you.

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 10 days to file a complaint, 10 days to file an answer. And in the context of a presidential election, you then of course have the December 12 deadline. So, therefore, there are time constraints that are there.

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

KLOCK: Yes, but...

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

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

SCALIA: Oh, there's no... I thought the Florida court accepted that, too, in its current opinion.

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

SOUTER: Mr. Klock, will you...

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

KLOCK: Yes, Your Honor.

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

KLOCK: I'll try to answer that question. You would start, I would believe, with the requirements that the voter has when they go into the booth. That would be a standard to start with.

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

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

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

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

KLOCK: Yes, sir.

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

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

KLOCK: Without being disrespectful, Your Honor, I think you've answered the question in terms of phrasing the question. There are any number of statutory schemes that you could select from, if you were a legislature.

But as a court, I don't think that the Supreme Court of Florida, respectfully, or any other court can sit down and write the standards that are going to be applied...

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

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

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

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

KLOCK: Yes, sir?

BREYER: And the question on Florida law is simply this, what the statute as I take it, the contest statute, lists grounds for contesting. One of those grounds is rejecting a sufficient number of legal votes, sufficient to place the election in doubt.

And then the circuit judge is given the power to investigate that allegation, just to look into it.


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

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

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

KLOCK: Your Honor, if they are not properly -- if the ballot is not properly executed, it's not a legal vote. The only case in Florida that even touches upon this in terms of a machine ballot is the Hogan case from the 4th District Court of Appeal.

In the 4th 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, 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 and supporting what the Supreme Court does, there's sort of an omelet that is created by going and picking through different statutes.

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

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

STEVENS: May I 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 you use for damaged ballots would be the same standard you use in that situation?

KLOCK: I don't think so, sir.

STEVENS: What standard would you use...

KLOCK: Well...

STEVENS: ... in the situation I proposed then?

KLOCK: Justice Brennan, the difficulty is that under -- I'm sorry. (LAUGHTER) 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 brought about in 1988...

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

KLOCK: The legislature would have to create one, sir. I don't know what standard...

SOUTER: You're saying that they can't interpret statute in which there is no explicit definition.

KLOCK: What I'm saying is...

SOUTER: They have to throw their hands up.

KLOCK: No, Justice Breyer. What I'm saying is...

SOUTER: I'm Justice Souter. You've got to cut that out. (LAUGHTER)

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.

SOUTER: But you go to the opposite extreme and say, it seems to me, that they can't look, as Justice Stevens suggested, to a statute which deals with 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're excoriating the Florida Supreme Court for, and say they can't interpret at all.

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 vest it in the canvassing board, and the canvassing board is composed of a defined group of officials, a county judge, the elections supervisor and the chairman of the county commission. It is very limited...

SOUTER: But that means the court apparently cannot define "legal vote."

KLOCK: That's correct.

SCALIA: Mr. Klock? I'm Scalia. (LAUGHTER)

KLOCK: Yes, sir? I'll remember that.

SCALIA: Correct me if I'm wrong...

KLOCK: It will be hard to forget. (LAUGHTER)

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 it. There's a hanging chad. The machine didn't count it. It's clear what the intent of the voter was. We'll count it." Is that not correct?

KLOCK: Yes, Justice Scalia, that is correct.


KLOCK: If you have a situation...

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

KLOCK: Pardon me, sir?

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

KLOCK: It is correct that that statute provides 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 you have 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're unhappy with the election, you can send the ballots to Tallahassee, then you have a problem that is created that would not exist under 166.

REHNQUIST: Thank you, Mr. Klock.

KLOCK: Thank you.

REHNQUIST: Mr. Boies, we'll hear from you.

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.

KENNEDY: Could we begin with jurisdiction first?


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."

That's not exactly this, but -- when the Supreme Court used that word, I assumed 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 U.S.C., Section 5 must be interpreted in this case?

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 cognizance 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, and I think that goes throughout the opinion.

KENNEDY: The language used in 3 U.S.C., 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?

BOIES: Yes, I think it is, Your Honor.

KENNEDY: All right. And it seems to me that if the Florida court, and presumably the Florida legislature, have acted with reference to 3 U.S.C. 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 -- the two Florida Supreme Court decisions?

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.

KENNEDY: Well, of course, the deadline is meaningless if there's a new law involved, and that's part of the equation, too.

BOIES: Yes, but what I would say is that whether or not there is a new law -- that is, whether there is 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. And that's...

REHNQUIST: Mr. Boies, there are really two parts to that sentence of Section 5. One is the law in effect at the time, and the other is, "finally determined six days before the date for choosing 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.

BOIES: I don't know exactly what was in the Florida Supreme Court's mind, but I think 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.

REHNQUIST: So that's the "finally determine" portion of Section 5?

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...

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?

BOIES: You mean, by shortening it?

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 legislature -- could the Florida legislature have done what the Supreme Court did?

BOIES: I think that it would be unusual. I haven't really thought about that question. I think they probably could not, because I think...

KENNEDY: Consistently -- because that would be a new law under Section 5?

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

KENNEDY: And, in fact, it would be a new law under our preclearance jurisprudence, wouldn't it?

BOIES: I think not, Your Honor, because, if you go back to the State v. 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. It was then followed up...

KENNEDY: 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?

BOIES: What I'm saying, Your Honor, is that it wasn't doing exactly the same thing, because it wasn't passed with a new law. It was interpreting the existing law. If the legislature had said -- for example, the legislature has...

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.


KENNEDY: Both would have to -- you have to preclear judicial rulings and see whether they are new laws, don't you?

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 hypothesize.

What the Florida Supreme Court was confronted with was a statute. And that statute said that -- and it was the later-passed statute -- let me 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 for 25 years."

BOIES: And the 12 years before the Florida Supreme Court made this decision, it had made the State v. Chappell decision, in which it had approached it from exactly the same policy grounds.

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 I'm...

BOIES: If I could respond to that, Your Honor.

SCALIA: ... 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.

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...

SCALIA: Right.

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

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.

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.

O'CONNOR: I'm sorry. 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"?

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

O'CONNOR: You think it did it properly?

BOIES: I think it did do it properly.

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 in deadlines were just fine, and they'd go ahead and adhere to them. And I found that troublesome.

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 context, prior to certification. But there is no time limit in the contest statute process, which is what we're in now. And I think that the Florida Supreme Court was focussing on this contest period, which is what is really before -- was before them and is before you. And in the contest...

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.

BOIES: There are three different groups of votes, OK, 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, once you know there was valid votes...

REHNQUIST: This was a trial -- this was a trial, Mr. Boies, in the circuit court of Miami-Dade?

BOIES: Yes -- no, no, 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 were cast.

But 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 they were part of the... SCALIA: It not only said... BOIES: ... certification process.

SCALIA: It not only said that, it said that those votes have to be certified.

BOIES: Yes, Your Honor.

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

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.

SCALIA: I understand. But what the Florida Supreme Court said is that there shall be added to the certification these additional numbers.

BOIES: But that's true in any contest. Every single contest...

SCALIA: It's not added to the certification.

BOIES: Yes, of course it is, Your Honor.

SCALIA: You may do a 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...

BOIES: Yes, because the contest procedure is a procedure to contest the certification. What you're doing is you're 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 215 votes."

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.

BOIES: 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...

SCALIA: It doesn't make any sense to me. You have a certification which is made by the secretary of state. That is what is contested.

BOIES: Right.

SCALIA: And here the certification was directed to be changed.

BREYER: Does it matter, by the way, does it matter -- does it matter if they said in Palm Beach and Miami-Dade, the ones that the court said, "You must certify," if they were thrown into the others and said, "Recount them"? If it's uncontested in the trial, I guess that you'd get to the same place.

BOIES: I think you get to exactly the same place.

BREYER: So it doesn't really matter.

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

BREYER: But Broward might.

BOIES: But Broward might.

BREYER: Would you object if they have a different standard to recounting those too?

BOIES: Broward is a different situation. BREYER: Yes.

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

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

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.

KENNEDY: That's very general; it runs throughout the law. Even a dog knows the difference in being stumbled over and being kicked. You know it. Now, in this case -- in this case -- what we're 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 the equal protection clause, each -- 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? Could that vary from county to county?

BOIES: I think it can vary from individual to individual. I think that just as these findings...

KENNEDY: So that even in one county, it could vary from table to table -- I'm counting these ballots, you're counting this one?

BOIES: I think on the margin, Your Honor, whenever you're interpreting intent, whether it is in the criminal law, in administrative practice, whether it is in local government, whenever somebody is coming to...

KENNEDY: But here you have something objective. You're not just reading a person's mind; you're looking at a piece of paper. And the supreme courts in the state of South Dakota and in other states have told us that,

"You will count this if it's hanging by two corners or one." This is susceptible of a uniform standard. And yet you say it can vary from table to table within the same county.

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 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."

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're 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're 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?

BOIES: Let me answer both questions. First, I don't think there is a series of objective interpretations, objective criteria that vary county by county.

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 from county to county on objective standards be an equal protection violation?

BOIES: 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.

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 -- 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 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?

BOIES: 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's punched through, if you knew you had those two objective standards and they were different, then you might have an equal protection problem...

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 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?

BOIES: Well, I think that's a very hard question. (LAUGHTER)

SCALIA: You'd tell them to count every vote. (LAUGHTER)

SCALIA: You'd tell them to count every vote, Mr. Boies.

BOIES: I would tell them to count every vote. (LAUGHTER)

SCALIA: Let me ask you...

SCALIA: Before you answer that question, Mr. Boies...

BOIES: 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, it gives you a pretty good standard.

STEVENS: Let me ask this question, Mr. Boies. Does not the procedure that is in place there contemplate that the uniformity will be achieved by having the final results all reviewed by the same judge?

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. This 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.

SCALIA: Well, 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.

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. And there's no finding of 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...

SCALIA: What do you mean "properly exercised"? What? Their discretion, right? Is that what he meant by "counting responsibilities"?

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

REHNQUIST: Was this the trial before Judge Sauls?

BOIES: Yes, Your Honor.

REHNQUIST: I thought he ruled against the contestants and said they took nothing.

BOIES: Yes, 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.

REHNQUIST: But the fact-finding phase of that trial, you say these were found as a fact -- did he make findings of fact?

BOIES: Yes, he did.

REHNQUIST: Well, what did he say with respect to this?

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

REHNQUIST: As opposed to just intent of the voter?

BOIES: Yes, just intent. They used clear intent of the voter. And the statute sometime -- in one section it 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...

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

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.

O'CONNOR: With no holes punched?

BOIES: With no holes punched, but where it was indented in every race.

O'CONNOR: That was counted as proper in...

BOIES: In Palm Beach.

O'CONNOR: Palm Beach.

BOIES: 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.

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?

BOIES: Well, Your Honor, because in Florida law since 1917, Darby v. 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 No. 2 pencil." Several thousand didn't. They used everything else, but not a No. 2 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.

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.

BOIES: Yes, Your Honor.

SCALIA: And those statewide certifications, the Supreme Court ordered to be accepted. So it is -- the Supreme Court, while applying the 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.

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.

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.

BOIES: No. It's only based on...

SCALIA: Which he then accepts -- not de novo.

BOIES: No, it's only based on the certifications that are contested. In other words, if you're going to order the manual review of the ballots, the issue is what ballots are contested, and, second, is there judicial review of those ballots.

SCALIA: You have to know how close the state election was, don't you...

BOIES: Yes, but...

SCALIA: ... for which purpose you accept the certifications?

BOIES: Yes, that's true. And you have a certification...

SCALIA: And here you're telling him to accept it not de novo, but deferring to Broward County.

BOIES: I think what the Supreme Court is saying is you've 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 you have contested ballots, then, going back to State v. Williams, Nuccio v. 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. 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.

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?

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, under either circumstance, your vote doesn't count.

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

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 were about 60,000.

STEVENS: Mr. Boies, can I ask you this? Does that mean there are 110,000 overvotes?

BOIES: That's right.

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?

BOIES: 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.

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 in part to your answer that you gave to Justice Scalia about Broward County, and in part to the answer you're 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're talking about statewide, that are not all of which were contested, but we're not talking about the overvotes?

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're dealing with overvotes -- and remember, this is a machine issue -- when you're dealing with overvotes, the machine has already registered two votes. Now, there may be another vote there -- a dimpled vote or indented vote -- that the machine did not register, but once you get two votes, that ballot doesn't get counted for the presidency.

BREYER: They gave an example. The example they gave in their brief was, there's a punch for Governor Bush and then there's 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. I don't know if there are such votes, but they say there might be.

BOIES: There's nothing in the record that suggests there are such votes. If anybody had contested the overvotes, it would have been a relatively simple process to test that, because you could have simply tested as to whether the double vote was a write-in vote or was another candidate.

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 this?

BOIES: I think that's right. I think that's how I would interpret it, Mr. Chief Justice.

SCALIA: Mr. Boies, I have one other perplexity about the scheme that's been set up here. As you point out, there's scant statutory provision concerning the contest. There's 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? Once a contest is filed, the certification is meaningless. What advantage is there to win the protest?

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 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.

KENNEDY: My concern is that the contest period, as we've been talking about, requires the studying 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're also conscious, making it difficult for appellate review. And it seems to me -- and we're getting back to the beginning of this, that the legislature could not have done that by a statute without it being a new 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.

BOIES: But, Your Honor, 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're doing is you're 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.

REHNQUIST: Including appeals to the Supreme Court of Florida and the other petition to this court?

BOIES: Excuse me, Your Honor?

REHNQUIST: I said, after the circuit judge says the contest comes out this way, surely there's 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 12.

BOIES: Your Honor, I think...

REHNQUIST: Or could it?

BOIES: 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's about another day or so. 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...

REHNQUIST: Wouldn't the...

BOIES: ... to get the procedures ready to count.

REHNQUIST: Just a minute, Mr. Boies. Wouldn't the Supreme Court of Florida wanted briefs, and wouldn't the parties have needed time to prepare briefs?

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.

SCALIA: After the counts are conducted in the individual counties, wouldn't the Leon County circuit judge have to review those counts? After all, I mean, the purpose of the scheme is to have a uniform determination.

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

SCALIA: Right.

BOIES: ... I think that may be so, Your Honor.

SCALIA: Well, wouldn't that take a fair amount of time? And is that delegable? I assume he'd have to do that personally.

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've 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 have done the contest and you simply have not completed all of this other remedy, under 168, Subsection 8, that we are still entitled, under settled Florida law, to have our votes counted.

REHNQUIST: But the Supreme Court said you had to do it all in the interest of fairness.

BOIES: No, I think that what...

REHNQUIST: I thought you agreed with me on that a moment ago.

BOIES: I did. 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.

SCALIA: Mr. Boies, would you explain to me again how the protest and the contest fits in? You said the -- let's assume that my complaint that I want to protest is the failure to do undercounts, to those ballots that were undercounted, OK?

BOIES: Right.

SCALIA: That's my protest.

BOIES: Right.

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?

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.

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...

BOIES: Your Honor...

O'CONNOR: ... which would make it important to have a protest.

BOIES: ... I think that's right. I think that is right. I would point out that...

O'CONNOR: I think the Florida has sort of ignored that Boardman case.

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, and 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 Delahunt case that we cited, have stuck with this very general standard. There's a sense in which that may be an Article II issue.

SOUTER: Mr. Boies, let's assume that at the end of the day, the Leon County, Florida, judge, gets a series of counts from different counties, and 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 follow intent of the voter, that's good enough." Can we do that?

REHNQUIST: I'll extend your time by two minutes, Mr. Boies.

BOIES: Yes. I do not believe that that would violate the equal protection and 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.

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

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 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.

BOIES: Now, for whatever that reason is, whether it's voter error or machine problems, that statistic, you know, makes clear that there's 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 general standard are resulting in far fewer differences among counties than simply the differences in the machines that they have.

REHNQUIST: Thank you.

BOIES: Thank you very much.

REHNQUIST: Mr. Olson, you have five minutes remaining.

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 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...

GINSBURG: Well, 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's 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?

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

GINSBURG: Then you'd have to have several standards, county by count, there are to be?

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 7 and the present with respect to how those punch card ballots are evaluated. Palm Beach 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 this so-called dimpled ballot standard, indentations on the ballot. There was a reason why that was done, 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 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. In the balance of the process, the remaining 80 percent, will be looked at only in connection with the undercounts.

GINSBURG: Mr. Olson, do I understand that your argument on the equal protection grant would render academic what was your main argument that's troublesome; that is, that we say 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?

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.

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 v. 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.

OLSON: The only thing that 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 in 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 by 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.

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?

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.

REHNQUIST: Thank you, Mr. Olson. The case is submitted.

Book/CDs by Michael E. Eidenmuller, Published by McGraw-Hill (2008)

See Also: Bush v. Gore USSC Brief and Written Opinion

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