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

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1 Excerpts From A rgum ents Before Supreme Court on the Florida Recount BOD Y: Follow ing are excerpts fro m oral argum ents before the Suprem e Cou rt yesterday on the Florida vote recount, as recorded by The New York Times. The lawyers questioned were Theodore B. Olson, for the Bush campaign; Joseph P. Klock Jr., for Florida's secretary of state, Katherine Harris; and David Boies, for the Gore campaign. CHIEF JUSTICE WILLIAM H. REHNQUIST. We'll hear argument now on No , George W. Bush and Richard Cheney versus Albert Gore et al. Before we begin the arguments, the court w ishes to commend all of the parties to this case on their exemplary briefing under very trying circumstances. We greatly appreciate it. Mr. Olson? THEODORE B. OLSON. Mr. Chief Justice, thank you, and may it please the Court. Just one week ago, this court vacated the Florida Supreme Court's Nov. 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 Dec. 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 Nov. 21 judgment that this court had made into a nullity. JUSTICE ANTHONY M. KENNEDY. Can you begin by telling us our federal jurisdiction? Where's the federal question here? 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 unm oored 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 agent -- 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. I did not do that here because it did n ot specify -- it did use the executive bran ch. In fact, it vested considerable authority in the secretary of state, designating the secretary of state as the chief elections official. -1-

2 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. In -- 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 SANDRA DAY O'CONNOR. But you think, then, there is no appellate review in the Supreme Court of what a circuit court's done? MR. O LSON. 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 assum ed that they'd 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 the - - and Florida election law. There's a specific grant of authority to the circuit courts. There's no reference to, on 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, 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 -- courts 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 pe rfectly logical, especially in the context of a presidential electio n, 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 ---- JUST ICE O 'CON NOR. I have the sam e prob lem Ju stice Kennedy does, apparen tly, which is, I w ould 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 there -- 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 ---- MR. OLSON. Well ---- JUSTICE O'CONNOR. -- 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 in our briefs is a good argument. It's a solid argument. It is consistent with the -2-

3 way the code is set up, and it's particularly consistent with the timetable that's available in presidential election. However ---- JUSTICE ANTONIN SCALIA. Well, it's pretty close. You can say it could be interpreted that way by the Florida Supreme Court, I suppose. But 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, 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 is -- 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 JOHN PAUL STEVENS. But, 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 to 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 we, as we said ---- JUSTICE STEVENS. But except you've got to choose one version of the word "legislature" or the other. MR. OLSON. I think in different contexts it's not necessarily the case. And certainly it is true that Legislatures can employ the legislative process that might include vetoes by state, by the state chief executive, or a referendum, w hen the state deliberately chooses to cho ose a legislative method to articulate a code. The point I think that's most important and most ---- JUST ICE S TEV ENS. But is it the choice of the Legislature or is it -- w as 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 Court? MR. OLSON. No, Article II, I believe, do not contend that Article II would prohibit them from ---- JUSTICE STEVENS. Of course Article V would have 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 they -- under no circumstances is it consistent with the concept of the plan in the -3-

4 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 RUTH BADER GINSBURG. Mr. Olson? With respect to the role of judicial review, you rely very much on the M cpherson case. And tw o things strike me ab out 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 M cpherson decision and its recitation of the legislative h istory, o r the history of legislation and acts by state legislatures to comply with it, make it quite clear that the power is vested in the L egislature 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 had not provided for judicial review specially for that measure. MR. OLSON. I think the context of that case is different and that it's entirely p ossible for the court to have come to the conclusion it did in that case, and w e believe that case is compelling for the princip le 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 III -- 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 with respect -- and disputes with respect to the appointment. 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 pow er as constrained by the state's constitution. MR. OLSON. And I think that's imp ortant. I agree with y ou, Justice Ginsburg. It's not the m ost 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 w as 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 silencio, 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, m ajor revision that took place on Friday. JUSTICE STEVENS. But Mr. Olson, isn't that one of the issues in the case, as to whether it was a major revision? Y our opponents disagree. And I know you rely very h eavily on the dissenting opinion in the Florida Supreme Court. But which opinion do we normally look to for issues of state law? -4-

5 MR. 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 board s during the protest phase of the election -- postelection 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 Dec. 8, in this context, those remand provisions -- I mean those recount, manual recount provisions, became mandatory instead of discretionary, pursuant to judicial rather than executive supervision, during the contest phase rather than the protest phase eve n though it's not even mentioned in the statute with respect to the contest phase, pursuant to ad hoc, judicially established procedures rather than the procedures that are articulated quite carefully in the statute ---- JUSTICE DAVID H. SOUTER. Well, aren't ad hoc, judicially created procedures the point of subsection 8 of 16 8? I mean, once w e get into the contest phase, subsection 8 gives, at least to the C ircuit 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 at -- the entire process is tilted on its head. Where there used to be a 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, and one has ---- JUSTICE SOUTER. What's the timetable in 168? MR. OLSON. There's no timetable in ---- JUST ICE S OUT ER. That's right, there is no tim etable there. S o that seems to undercut yo ur timetable argum ent, once you get into the contest phase from the protest phase. MR. 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 ten 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 -- you know, 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're 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 w e can find an Article II violation here. MR. OLSON. Well, I hope -- I am hoping to convince you that they've passed far beyond the normal limits of statutory construction. The changing of the

6 JUST ICE S OUT ER. Y ou've convinced us, certainly, that there is a disagreem ent about how it should be construed, and that disagreem ent 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 had 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, we submit, an utter revision of the timetables, the allocation of ---- JUSTICE SOUTER. But, Mr. Olson, we're back to the -- there is no timetable in 166. MR. O LSON. That's correct. JUST ICE S OUT ER. A nd what your argument boils down to, I thin k, is that they have insufficiently considered -- I'm sorry, in 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'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 ---- 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 ---- JUSTICE SOUTER. And it took that into consideration in fashioning its orders under Subsection 8. MR. OLSON. And we submit that it had 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 tim e 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. W e'd find out. MR. 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 S ection 5 of Title 3 because the law s had been changed in a num ber of different respects -- and w e've recited them. The timetables are important. -6-

7 JUST ICE K ENN EDY. Well, and I thought your point w as that the proc ess is being conducted in violation of the Equal Protection Clause, because it's 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 STEPHEN G. 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 underco unts. I understand that you think that the system that's set up now is very unfair because it's differen t standards in different places. W hat, 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 com plete answer to that -- is that there would be a uniform way of evaluating the manner in -- there's -- Palm Beach, for example, and ---- JUSTICE BREYER. All right, in a uniform way of evaluating, what would the standard be, because this is one of your main arguments ---- MR. OLSON. Well ---- JUSTICE BREYER. You say intent of a 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 we required. Now, that's why I mentioned the Palm Beach standard that was articulated in writing and provided, along w ith the ballot instructions, to people voting that the chad ought to be punctured. JUSTICE BREYER. You're repeating then, basically, Indiana. Is Indiana, in your opinion -- or 1990 Palm Beach -- are either of those fair, or what else? MR. OLSON. It is certainly a starting point and is something that has some ---- 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. O LSON. I would agree with that, Justice O'Connor. -7-

8 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 Nov. 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 w as just discussing. JUSTICE KENNEDY. I understand that she has the expertise and we'll -- 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 -- well, there is no limitation on when she can answer advisory opinions and so ---- 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. JUSTICE SOUTER. Well, if this matter was -- if this were remanded ---- JUSTICE KENNEDY. Go ahead. You. JUSTICE SOUTER. I'm sorry. If this were remanded to the Leon County Circuit Court and the judge of that court addressed the secretary of state, like it 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 mom ent, immediately after me. As I understand, however, the elec tion 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 responsibilities for ---- JUSTICE BREYER. But I'd 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. But I'd still like to get your opinion, insofar as you could give it. MR. OLSON. I think that part of that standard is that it w ould have to be applied uniform ly. 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 ---- JUSTICE STEVENS. But, Mr. Olson, was the Palm Beach standard that you refer to in your brief applied statewide and uniformly? MR. OLSON. What

9 JUSTICE STEVENS. You refer to the Palm Beach standard having changed. Was the Palm Beach standard ever applied on a statewide basis? MR. O LSON. I believe it was not, Justice Stevens. JUST ICE S TEV ENS. And can we possibly infer from the failure of the secretary of state to promu lgate 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 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? 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 certainly we're ---- JUST ICE G INSB URG. But if w e're talking about, if we're talking about the contest period and this statute, as Justice Souter po inted out, speaks with amazing bread th. It says that the circuit judge, this is the text, "shall fashion any order he or she deems n ecessary to p reven t or correct any wrong, and to provide any relief appropriate to the circumstances." I couldn't imagine a greater conferral of authority by the Legislature to the circuit judge. MR. OLSON. In the -- but I, 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 on by our opponents most, is a provision that's contained in the provision of the election code that deals w ith damaged or spoiled ballots. JUSTICE SOUTER. O.K., 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 po int were to purport to lay down a statewide stan dard which went to a lower level, a m ore 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 would -- 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 hadn't 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. JUSTICE SCALIA. Mr. Olson, it is also a part of your case, is it not, that insofar as that language you just quoted is concerned, the power of the circuit judge to prevent or correct any alleged wrong, it's part -9-

10 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. When 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. There've been -- 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 recou nt, 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. Th ey interpreted the statute otherwise. Are you saying here that their interpretation was so far unreasonable in defining legal vote as n ot 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 ---- JUSTICE SOUTER. There's no definition. There's no definition. Doesn't the court have to come up with a definition ---- MR. OLSON. In the context of the statute as a whole, manual recounts are treated quite extensively, as a last resort, in a -- for tabulation error, at the discretion of canvassing officials. JUSTICE SOUTER. -- at the protest. MR. O LSON. That's correct. JUSTICE STEVENS. Mr. Olson ---- MR. OLSON. We submit, and I'd like to reserve the balance of my ---- JUST ICE S TEV ENS. Is it critical to your position that the Florida Suprem e Cou rt erred in its resolution of the "shall/may" controversy in its first opinion? MR. OLSON. I'm sorry, I

11 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, this Harris statute? MR. OLSON. I don't think its critical to our -- what we're saying is that what the court expanded upon, its previous decision 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 Dec. 8 opinion. JUSTICE REHNQUIST. Very well, Mr. Olson. Mr. Klock, we'll hear from you. JOSEPH P. KLOCK JR. 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. One-sixty-six 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 Dec. 12 deadline. So therefore, there are time constraints that are there. JUSTICE SCALIA. Which is federal, not state. And occurs in the safe harbor statute ---- MR. KLOCK. Yes, but ---- JUSTICE SCALIA or as a result of the safe harbor statute. MR. KLO CK. Y es, Yo ur Honor. But this co urt, in its opinion that it han ded 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. JUSTICE SCALIA. Oh, there's no -- we thought the Florida court accepted that, too, in its current opinion. MR. K LOCK. They did say that exactly, Your Honor. JUST ICE R EHN QUIST. M r. Klock, will you you referred to the first Harris case, I think we thin k of it as the first Bush v. Gore case. You're talking about the same? MR. K LOCK. Yes, Your H onor. 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 Co urt, or in any other valid way, in your judgment, what should the substantive standard be? MR. KLO CK. I'll try to answer that question. You would think -- I would -- you would start, I would believe, with the requirements that the voter has when they go into the booth. Th at would be a stand ard 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 -11-

12 the polling place and not stick it in the box, and they would consider that to be a leg al vote. The fact is 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, 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 ---- MR. K LOCK. 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? Remem ber, Indiana has a statute. M ichigan has a statute. Thirty-three states have a statute where they just say "intent of voter." But in your opinion, because of the hanging chad, etc., etc., what is a fair -- not necessarily Florida law, but a fair uniform standard? MR. 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 w rite the standards that are going to be applied. It's a legislative ---- 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 were only indentations in every race, you m ight then come up with a different standard. But the only problem that w e have here is created by people who did not follow instructions. JUSTICE BREYER. O.K. Can I ask you a different question on Florida law? MR. K LOCK. Yes, sir. JUSTICE 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 electio n in doubt. And then the circuit jud ge is giv en the power to investigate that allegation, just to look into it. MR. KLOCK. Yes ---- JUST ICE B REY ER. 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. The only ---- JUSTICE BREYER. There might be som e in there that are legal under anybody's standard. -12-

13 MR. KLO CK. Y our Honor, if they are not p roperly -- 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 is that the only case that we have that deals with this handles it in that fashion. 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 is sort of a, 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. In the B eckstrom case, which you will no doubt hear much about as the argument proceeds, dealt with that kind of situation. The -- 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 to be able to find that it's not the m achine. JUST ICE S TEV ENS. May I just ask this question: If you did have a situation -- I kno w your position is different -- w here there was som e uncounted ballots due to a ma chine 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. K LOCK. I don't think so, sir. JUSTICE STEVENS. What standard would you use in the situation I proposed 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 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're saying that they can't interpret a statute in which there is no exclusive definition? MR. KLOCK. W hat I'm saying is

14 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've got to cut that out. MR. K LOCK. I will now give up. What I'm saying, sir, is this: That you cannot be in the situation of using the w ord 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 can't look, as Justice Stevens suggested, to a statute which is, which deals with a certainly 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. 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 vest it in the canvassing board, and the canvassing board is composed of a certain -- a defined group of officials: a county judge, the elections sup ervisor, the chairman of the county comm ission. It is limited. JUSTICE SOUTER. But that means that the court, apparently, cannot define "legal vote." MR. K LOCK. That's correct.... JUSTICE REHNQUIST. 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 M r. Klock refers to. JUSTICE KENNEDY. Could we begin with jurisdiction first? MR. B OIES. 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." That's not exactly the -- but 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 U.S.C. 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 a safe harbor. I think that goes throughout the opinion. -14-

15 JUSTICE KENNEDY. The language used in 3 U.S.C. Section 5 is garden variety language so far as the courts are concerned. W e 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. B OIES. Yes, I think it is, Your Honor. JUSTICE 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. 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 w as not met. JUSTICE KENNEDY. Well, of course the deadline is meaningless, if there is a new law involved, and 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 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 what ---- CHIEF JUSTICE REHNQUIST. There are really two -- Mr. Boies, there are really two parts to that sentence of Section 5 we're talking. 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 m ind, 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 finely determined portion of Section 5? MR. BOIES. Yes, Yo ur Honor. Y es, I think that's right. And I thin k 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 -- JUST ICE K ENN EDY. Well, let me ask, could the Legislature of the State of Flo rida, 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 under safe harbor. Could the Florida Supreme Court have done what the -- could the Florida Legislature have done what that 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? -15-

16 MR. BOIES. Yes, because it would be a legislative enactment as opposed to a judicial interpretation of an existing law. Remember ---- JUSTICE KENNEDY. An in fact it would be a new law under our preclearance jurisprudence, wouldn't it? MR. BOIES. I think not, I think not, Your Honor, because if you go back to the State against Chapell 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 ---- JUST ICE K ENN EDY. If we assum e 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 has ---- 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. MR. BOIES. No ---- JUSTICE KENNEDY. Both would have to -- you have to preclear judicial rulings and see whether they're 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 rew rote the law, it might very well be a differen ce. W hat 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 -- and it was the later-passed statute, and you 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 Suprem e Court said iswe'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 sam e policy grounds. JUSTICE SCALIA. Oh, it was quite a different -- I mean, there, indeed, telephone notification had been given within the deadline and the actual written m aterial 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 a -- you know. But I'm not sure that you ---- MR. BOIES. Well, if I could respond to that, Your Honor ---- JUSTICE SCALIA. 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 -- not one that would pass normal judicial muster -- then it would be -16-

17 just like th e legislature writing a new law. But yo ur con tention here is that this is a reasonable interpretation of the F lorida law. MR. BOIES. I think the way I would put it, Your Honor, is that if you conclude that the Florida Supreme Court's interpretatio n of Florida law is either a sham or it is so misgu ided that it is simply untenable in any sense ---- JUSTICE SCALIA. Right. MR. BOIES. I think, at that point, then you can conclude that what it has done is has changed the law. But I think the standard is the stand ard this court h as gen erally applied in giving defe rence 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. Don't -- 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. B OIES. 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'd 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 th e protest context prio r 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 focusing on this contest period, which is what is really before -- was before them and is before you. And in the contest