Excerpts from yesterday's US Supreme Court hearing in the case of Bush v. Palm Beach County Canvassing Board. The entire court was present: Chief Justice William H. Rehnquist and Associate Justices Anthony M. Kennedy, Sandra Day O'Connor, Antonin Scalia, Clarence Thomas, John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer. Theodore Olson argued for the Bush campaign, and Laurence Tribe for the Gore campaign.
REHNQUIST: Mr. Olson?
OLSON: And may it please the court. Two weeks after the Nov. 7 president election, the Florida Supreme Court overturned and materially rewrote portions of the carefully formulated set of laws enacted by Florida's Legislature to govern the conduct of that election and the determination of controversies with respect to who prevailed on November 7. These laws have been formulated by the Florida Legislature pursuant to an expressed delegation to it by the United States Constitution. The election code that the Florida Legislature developed conformed to Title 3, Section 5 of the United States Code. That provision invites states to devise rules in advance of an election to govern the counting of votes and the settling of election controversies. ...
KENNEDY: What they did was - and it's typical of the grant and aid programs, they said, if you run a clean shop down there, we'll give you a bonus. And if you don't, well, you take your chances with everybody else.
OLSON: Justice Kennedy, I submit that it is much like a compact that Congress is offering the form of Section 5. Yes, if you do these things, certain things will happen. But among these things, what Congress wanted to accomplish with Section 5 is not only to provide the benefit to the states, but to provide the benefit to the United States of the states accepting that implicit ...
KENNEDY: Well, what is there, in the opinion of the Supreme Court of Florida, that indicates that it relied on this federal statute, in that reasoning for its decision and in its judgment.
OLSON: Well, I think the fact is that it did not. What it did was it disregarded the compact when the state adopted a code of ethics - a code of election procedures to govern the election and the determination of disputes pursuant to the election, it brought itself into that safe harbor and guaranteed to the voters and the candidates in that state that the controversy and turmoil that infected this country after the 1876. ...
A federal issue?
KENNEDY: Well, but we're looking for a federal issue. And I thought that you might have argued that the secretary of state was instructed by the Supreme Court not to jeopardize the state's chances, and it cited 3 U.S.C. Sections 1 through 10. And so if the state Supreme Court relied on a federal issue or a federal background principle and got it wrong, then you can be here.
OLSON: Well, I certainly agree that it mentioned those provisions. I'm simply saying that it blew past the important provisions of Section 5 and the benefits that Section 5 gives to the states, to the voters in that state, and to the people running for office ...
KENNEDY: Then there's no federal constitutional issue here.
OLSON: We believe that there is, Justice Kennedy, because, although the state recognized it, it blew right past it. The state legislature adopted the code that the Section 5 of Article 3 - of Title 3 invited it to do. The state Supreme Court, which had no right under the Constitution, but I can't divorce the constitutional provision from Section 5, then overturned the plan that the state enacted through its legislature to make sure that what happened down in Florida was not going to happen. ...
Favorable Light
GINSBURG: Mr. Olson, would you agree that, when we read a state court decision, we should read it in the light most favorable to the integrity of the state supreme court? That if there are two possible readings, one that would impute to that court injudicial behavior, lack of integrity, indeed, dishonesty, and the other that would read the opinion to say we think this court is attempting to construe the state law but it may have been wrong, we might have interpreted it differently, but we are not the arbiters, they are?
OLSON: I don't mean to suggest, and I hope my words didn't, that there was a lack of integrity or any dishonesty by the Florida Supreme Court. What we're saying, that it was acting far outside the scope of its authority ...
GINSBURG: But if it tells us, `We see these two provisions in conflict,' they need to be reconciled ...
OLSON: But under almost any other circumstances, yes, Justice Ginsburg, but in this context - in this context we're talking about a federal right, a federal constitutional right, and the rights of individual citizens under the Constitution ... we are very definitely relying on Article II of the Constitution. The framers of the Constitution debated long and hard - it was one of the longest debates that took place during the formation of the Constitution. Where should this power be lodged in the federal legislature, in the state legislature and at the ballot booth or what? The one thing that was discussed and rejected by virtually everyone is that the power to select the manner in which electors would be appointed would be in the state judiciary. And we, quote - in the state judiciary. That was rejected. ...
Making Gore's case
REHNQUIST: Mr. Tribe, we'll hear from you.
TRIBE: Mr. Chief Justice, and may it please the court, I think I would want to note at the outset that the alleged due process violation, which keeps popping up and then disappearing, and has, as far as I can tell, not appeared at the state Supreme Court, did make one appearance in the reply brief here, is really not before the court, and for understandable reasons. Because although it is part of the popular culture to talk about how unfair it is to change the rules of the game, I think that misses the point when the game is over, and when it's over in a, kind of, photo finish that leaves people unsure who won. And then the question is: How do you develop great, sort of, greater certainty? And a rather common technique is a recount, sometimes a manual recount, sometimes taking more time. It's rather like looking more closely at the film of the photo finish. It's nothing extraordinary, it's not suddenly moving Heartbreak Hill or adding a mile or subtracting a mile from ...
KENNEDY: You're saying, no important policy in 3 U.S.C., Section 5? ... In fact, we change the rules after. It's not important in popular culture.
TRIBE: Certainly, not, Justice Kennedy. But I read U.S.C., Section 5 - that is 3 U.S.C., Section 5 - not as a requirement that, for example, one never add resources to checking how a particular ballot was cast. If you look at the language, I think it's really much too casual to say other, that all of the laws must stay fixed in order to have the safe harbor apply those as I'll try to argue in a few minutes - it's not really not a question for this court, but rather for the Congress. But the language of Section 5 is that, and I'll just read ...
SOUTER: Can you tell us where you're reading from.
TRIBE: Actually, I'm just reading from a copy of the U.S. Code, 3 U.S.C., Section 5, not from any a page I can identify directly...
SOUTER: It's in the appendix to the petitioners' brief, I'm sure, isn't it? ... Page 3-A of the blue brief.
TRIBE: Thank you, Mr. Souter. Page 3-A of the blue brief, I am reliably informed.
TRIBE: So, if any state ...
REHNQUIST: It won't get you an extra two minutes. (LAUGHTER)
TRIBE: If any state shall have provided and then it says, by laws enacted prior to the day fixed for the appointment of the electors, a fancy way of saying Election Day, for the final determination of any controversy or contest about the appointment of electors.
And here's the key phrase, I think, by judicial or other methods or procedures at least six days before the time fixed for the meeting of the electors, that means in our situation December 12, then the final determination shall be conclusive and govern the counting in Congress Now, the question for Congress, I supposed, would be though I don't see how this court could get into that question at this stage - but the question would be is a particular change extending a deadline for exiguous circumstances because a recount has been authorized a change in the judicial or methods of procedures for resolving the contest.
REHNQUIST: Let me ask you just a moment, you say you don't think this statute permits this court to get into the matter at this time. Are you suggesting there could be any judicial review of a decision by the Congress to count one set of electoral votes over...
TRIBE: No, I don't think so, Mr. Chief Justice. That is the highest law in Florida. Why bother with all the rest if that is anything more than an interpretive guide?
SCALIA: You would bother with it because, having decided very clearly what the statute requires, and finding no way to get around the firm date set, you say the reason it's bad is because of the state's Constitution. That's how it's written. Now they might have ...
TRIBE: But they also say that the provision that reaches the result that conflicts with the authorized recounts was written in 1951, but in 1989 they wrote a provision that unmistakably created discretion. ... And we haven't yet discussed this provision also created, the provision that when the returns are filed late, it doesn't say throw them away, it doesn't say give them back, it says fine every member of the canvassing board $200 a day. That would be a totally crazy provision. As this opinion understands, if you are not to reach a reconciliation of this sort, this result was over-determined under Florida law. It might be true that they said the Constitution also points this way, but there isn't a sentence in the opinion that suggests that without that constitutional argument the result would have to be different.
Munificent bequest
BREYER: What is the Nov. 26 date? Is that the seven-day date rule or is that some kind of date that tries to reconcile the ultimate point, after which the secretary, in exercising her discretion, no longer has to accept the late returns? Did it move the date from the statue, has it created a new date about this discretion, what it is?
TRIBE: Well, it looks to me like an exercise - the chancellor's foot, as it were, in this particular case. When I date, November 26, I couldn't come up with an algorithm or a formula that would generate it, but the court was confronted with the task of drawing, as this court has recognized, what are sometimes inevitably arbitrary lines. That is, it said it was not consistent with the overall scheme of the statute to require these recounts, which have just begun to terminate. That truly would be a promise to the ear to be broken to the hope, like a munificent bequest, just as Jackson said in his pauper's will.
KENNEDY: But, are you saying you can't tell us whether they, in the hypothetical, supposed that it would be a new enactment?
TRIBE: Well, there certainly are no cases on the subject. The language gives me very little guidance. Since the section is addressed to Congress, neither my opinion about it nor the court's opinion is necessarily ...
KENNEDY: But you don't think you could tell us what you might advise the Congress if you were the counsel for the Judiciary Committee?
TRIBE: I think I would advise the Congress that it is not a new enactment, that it is an entirely reasonable construction of an existing enactment as to which the only alternative construction is to make it self-destruct, and to make it internally contradictory. And I honestly don't think, if I were advising Congress, that I would say it's a new construction. I do think also that some people reasonably could argue the contrary. And I guess I think that this language should be interpreted, whether by a court or by Congress, in a way that gives some deference to the state government and its organs. And I think any degree of deference here is inconsistent with saying that there's been a federal violation, especially when - I want to remind us all about the context. Are we going to say that this paragraph in this opinion says that Florida is in breach of Article II of the Constitution, in general? Hard to say.
O`CONNOR: Yes, but who would have thought that the legislature was leaving open the date, or changed by the court?
TRIBE: Anyone. Just read the statute in 1989, and it says may. It says she may reject the late returns.
BREYER: But that doesn't change the - that's not the date.
TRIBE: Yes, but the date is the one from which the day is measured. That is, you're supposed to get it in by seven days later. What if you don't? Well, if you don't, [the secretary of state] may, or she may not, reject them.
O'CONNOR: Yes, well, then the secretary came in and argued and said yes, her discretion was if it were an act of God or a machine breakdown, she would exercise her discretion.
TRIBE: And it's an entire normal exercise of judicial interpretation to say that this statute is not limited to God and machines, that ...
SCALIA: Professor Tribe, can I ask you why you think the Florida legislature delegated to the Florida Supreme Court the authority to interpose the Florida constitution? I mean, maybe your experience with the legislative branch is different from mine, but in my experience they are resigned to the intervention of the courts ... but have certainly never invited it.
TRIBE: Well, I'd have to say my experience parallels that.
SCALIA: But what makes you think the Florida Legislature affirmatively invited the Florida Supreme Court?
TRIBE: The odd thing is that the system in Florida involves their own re-promulgation of the constitution. ... And their scheme, with respect to the resolution, of disputes over elections draws a sharp distinction between elections to their own House and Senate, which they won't trust the courts with as far as they can throw them. Those are to be resolved exclusively in the House and Senate. ...
SCALIA: That they are resigned to, but they need not be resigned to the Florida Supreme Court interposing itself with respect to federal elections. They need not be, because the Florida constitution cannot affect it. And I just find it implausible that they really invited the Florida Supreme Court to interpose the Florida constitution between what they enacted by statute and the ultimate result of the election.
For the full text of yesterday's Supreme Court arguments, visit www.boston.com.
