Excerpts from yesterday's oral arguments by Gore lawyer David Boies and Bush lawyer Barry Richard before the Florida Supreme Court: Chief Justice Charles T. Wells and Justices Harry Lee Anstead, Major B. Harding, R. Fred Lewis, Peggy A. Quince, Barbara J. Pariente, and J. Leander Shaw.
A matter of jurisdiction
WELLS: Mr. Boies, let me start right off. You know when the case was here previously in the protest part of the proceeding, no counsel for any party in briefs or in argument raised with this court the US Supreme Court of McPherson v. Blacker, seemingly because counsel did not believe that it was important for our consideration. However, that case was forcefully argued to the US Supreme Court and the US Supreme Court has now called that case to this court's attention in the opinion that came out this Monday.
And now, once again, no counsel has argued that case to this court. But I want to know from each counsel its importance here. My reading of that case is that the US Supreme Court has said that the state legislature has plenary power, full power, in respect to appointment of presidential electors, and that power cannot be eroded even by the state constitution. Now accepting that as controlling law, why does that not mean that the courts of this state can only be involved in resolving controversies in contests where the legislature explicit gives this court that power or a court that power, which it has not done in respect to presidential electors in 102.168?
And secondly, even if 102.168 is read to implicitly apply to presidential electors, why is it not judicial review given to the circuit court and not this court, since the only means by which there is a right to appellate review in Florida is through the state constitution?
Would you please address that? And I would like the other counsel to address that.
BOIES: First, with respect to whether the appropriate forum is the district court of appeal or is this court, the district court of appeal has of course certified this issue as a matter of great public importance and an issue that needs immediate attention.
WELLS: I understand that jurisdiction. My question is appellate review, where that is not expressly given in 168?
BOIES: We would say, Your Honor, that under 168 this court has the power to review both directly, because it has been certified up, and under this court's mandamus power, which we've also alternatively put forward in our brief.
WELLS: Where do we get our right to review the appellate review? From the rules and from the constitution. And doesn't that create a federal question?
BOIES: I don't think so, Your Honor, because what you're doing is you're reviewing, and reviewing in an ordinary judicial interpretation way, the statutes of this state. That is, I don't think the Constitution of the United States in any way means that the Legislature has to sit both as a legislative body and a judicial body just because an election of presidential electors is involved.
WELLS: But why isn't this like sovereign immunity, where courts only have such power to resolve disputes and claims that is expressly given to it by the legislature? Where, if the Legislature in this state says the court should not decide claims in excess of $100,000, those are matters that are taken to the Legislature in a claims bill. Why isn't this analogous to that?
BOIES: Because what I would respectfully suggest, Your Honor, is that the Legislature has provided this court with the authority to interpret these laws, that whenever the legislature passes a law, what the legislature is doing is passing a law that is known to be - going to be interpreted by the courts ...
WELLS: Mr. Richard, let me start with my question that I asked Mr. Boies. When this case was here before, counsel for Mr. Bush did not present any argument on McPherson v. Blacker. Yet, when it got to the Supreme Court, counsel for Mr. Bush forcefully argued McPherson v. Blacker.
Now I note that it's not argued again here. Is it the position of Mr. Bush that that case does not have any bearing on this matter?
RICHARD: Well, Your Honor, I think that the case has substantial bearing on the matter. I think that what McPherson v. Blacker tells us is exactly as Your Honor suggested it, which is that this court does not have the ability in this particular case, involving presidential electors, to disregard the statutory scheme and fashion a remedy based upon extraordinary equitable powers of the court set forth in the Constitution.
WELLS: Do we have the right to review the action of the circuit court?
RICHARD: Indeed, you do, Your Honor, but we come here in a significantly different posture than we did before. What we come here with now is belied by the nature of the litigants and the public interest.
In fact, this is nothing more than a garden-variety appeal from a final judgment by a lower court that reviewed after an entire, full evidentiary hearing.
HARDING: But the Legislature, having plenary power, said that the circuit court will make that determination.
RICHARD: Well, I agree with you, Your Honor. And I would not suggest to this court that the circuit court is not subject to any appeal. I believe that the circuit court is subject to appeal, but in a very limited fashion.
Interpreting 1999 law
ANSTEAD: In our earlier decision interpreting the statute with reference to the filing date, we in essence said that the secretary of state could refuse a filing by a particular county only if, one, it would interfere with the federal obligation to have the electors determined by a fixed date; or, two, that it would interfere with a contest.
Now, has there been any showing in this case that either of those issues applied to the decision by the canvassing board to stop their counting?
RICHARD: ... Subsequent to the decision of the Third District Court of Appeal, there was a trial. And in that trial Judge Sauls resolved conflicting evidence as to the question of whether in fact there would have been a change in the election regarding Dade County, and determined that there would not have been ...
PARIENTE: Just let me - you keep on using the language that there should be a reasonable probability of a change, and you've said that, again, we've got to stick to the statute. My reading of the statute says ''sufficient to change or place in doubt the results of the election.''
''Place in doubt'' is a different standard than ''a reasonable probability of different result.'' Do you agree with that?
RICHARD: I'm not sure, Justice Pariente, but I don't think we need to address that issue at this time because ... there was no evidence of any single voting machine that misoperated. There was no evidence of any voter whose vote was not properly recorded.
PARIENTE: So your position is that, in the contest, that errors or undervoting, as we've been referring to it as - that is, the failure of the machine to read a vote that might otherwise be properly cast for a candidate - that it is not the role of the judiciary in a contest to evaluate undervotes.
Is that your position today ... that this election contest statute does not vest within the judiciary the authority to review votes that were properly cast but never counted?
RICHARD: Well, number one, it is not the role of the judiciary to do so when a canvassing board has already done so and has made a reasonable decision, and that happened in Palm Beach County.
Establishing standards
WELLS: I got from reading somewhere that what we're defining, or what's being argued here as an undervote are ballots which have not been manually counted ...
RICHARD: That's correct, Your Honor. The record indicates that every one of these votes were sent through the machine. They were rejected by the machine because of the parameters that had been set. The machine determined that the votes had not been properly marked on the ballots.
LEWIS: Well, that goes to the rejection issue. You would agree with that? You're saying that they've gone through the equipment, so therefore they were not rejected. Is that a fair reading of your argument?
RICHARD: Yes, Your Honor, it's the same ...
LEWIS: Let's go to the next statement. Let's take it one step further. If that is contrary to Florida law, that those are considered to be rejected, do you agree with the standards that have been applied in other states with regard to very similar statutory language as to what you do to determine if there could be a change in the election or doubt as to the result in the election?
You look to see, as to first, just whether there's enough votes that were not counted, not as to who they would be for. Do you agree with that standard?
RICHARD: I don't agree that it applies under these circumstances, Your Honor.
LEWIS: The standard is what I'm looking to. You disagree with that standard? Or what standard would you have applied? If you assume that they were rejected, how does one prove that there would have been a change in result or doubt as to the result, if that's not been established?
RICHARD: Well, if we are in a circumstance in which it is appropriate to look at ballots, then it is the job of the canvassing board to do precisely what the Palm Beach canvassing board did, and that is to use the standard that the Palm Beach canvassing board used.
LEWIS: I'm speaking of the standard with regard to how does one demonstrate that there would be sufficient to change or place in doubt? For example, New Jersey seems to suggest that in interpreting a very similar statute, that you would look to just see if there's enough votes there, and assume that they would be for the challenging candidate. And that is enough to place - that it could change the results. Are you suggesting a different standard than that?
RICHARD: No, I think the standard is the same standard of burden that every plaintiff carries in every case, which is to come into court and to prove that there is something wrong with some ballot or some machine somewhere, and that there are enough of those that we can say that, whatever we call it, it would place the election in doubt. This plaintiff did not do so.
