Excerpts from Bush v. Gore oral argument

By Globe Staff, 12/12/2000

Excerpts from yesterday's oral arguments before the US Supreme Court: Chief Justice William Rehnquist and Justices Anthony Kennedy, Sandra Day O'Connor, Antonin Scalia, Clarence Thomas, John Paul Stevens, David Souter, Ruth Bader Ginsburg, Stephen Breyer. Theodore Olson and David Boies argued for George W. Bush and Al Gore, respectively.

The federal question

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. ... 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: 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 US Code, Section 5 likewise suggests that it may inform the reading of statutes crafted by the legislatures 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.

Stevens: ... 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: 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 ...

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: ... 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 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.

What is acceptable?

Olson: We are today smack-up against a very important deadline. ... And we submit that [the Florida Supreme Court] 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.

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. But what in your opinion would be a fair standard, on the assumption that it starts up missing the 12th deadline but before the 18th? ... This is one of your main arguments, you say intent of the voter is not good enough, you want substandards. What in your opinion would be ... 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...

O'Connor: Is that the starting point under the Florida Legislative scheme? ... 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 Nov. 21 position.

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?

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 correct. This has been euphemistically referred to as legal votes that haven't been counted....

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.

Who has the power?

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. ...

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: 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.

O'Connor: But is it, in light of Article II? I'm not so sure. ... 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?

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.

A uniform standard

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 ... 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.''

Clear intent

Souter: 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. ... 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: 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 counterindication, isn't it a denial of equal protection to allow that variation?

Boies: I don't think so, your honor.... 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 ...

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)

Souter: You'd tell them to count every vote.

(Laughter)

Boies: I would tell them to count every vote.

(Laughter)

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. ... The Supreme Court in 1998, well before this election, said, ''You've got to count those votes.'' And, in fact, they counted those votes....

Is there enough time?

Rehnquist: 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 Dec. 12.

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....

Rehnquist: 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.

Rehnquist: 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.