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Transcript Of Supreme Court Hearing On Florida Recount

December 11, 2000

This is the full text of the United States Supreme Court hearing on the Florida recount.

JUSTICE REHNQUIST: (Sounds gavel.) We'll hear argument now on No. 00-949, George W. Bush and Richard Cheney versus Albert Gore et al.

Before we begin the arguments, the Court wishes to commend all of the parties to this case on their exemplary briefing under very trying circumstances. We greatly appreciate it.

Mr. Olson.

MR. OLSON: Mr. Chief Justice, thank you, and may it please the Court. Just one week ago, this court vacated the Florida Supreme Court's November 21 revision of Florida's Election Code, which had changed statutory deadlines, severely limited the discretion of the nullity.

JUSTICE : Mr. Olson --

JUSTICE 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 the 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 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 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 not specify -- It did use the executive branch. In fact, it vested considerable authority in the secretary of state, designating the secretary of state as the chief elections official.


And as we point out, the very first provision in the election code requires the secretary of state to assure uniformity and consistency in the application and enforcement of the election law. The secretary of state, as the executive branch, is also given considerably other -- considerable other responsibilities. And to a certain extent, especially in connection with the contest phase of the election, certain authority was explicitly vested in the Circuit Court of the state of Florida, which is the trial court.

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

MR. OLSON: 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 assumed 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 and Florida election law. There's a specific grant of authority to the circuit courts. There's no reference to appellate jurisdiction. It may not be the most powerful argument we bring to this --

JUSTICE KENNEDY: I think that's right. (Laughter.)

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 the 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 perfectly logical, especially in the context of a presidential election, to stop this process at the circuit court and not provide layers of appeal because, given the time deadline, especially in the context of this election the way it's played out, there is not time for an appellate --

JUSTICE O'CONNOR: I have the same problem Justice Kennedy does, apparently, which is, I would have thought you could say that Article II certainly creates a presumption that the scheme the legislature has set out will be followed, even by judicial review, in election matters, and that 3 U.S. Code Section 5 likewise suggests that 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 way the code is set up, and it's particularly consistent with the timetable that's available in presidential election.

However --

JUSTICE 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 STEVENS: But, Mr. Olson, as I understand your argument, you rely on Lizer (ph) against Garnett (sp) and Hawk (sp) against Smith (sp). 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 --

JUSTICE STEVENS: 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 a state chief executive, or a referendum, when the state deliberately chooses to choose a legislative method to articulate a code.

The point I think that's most important and most --

JUSTICE STEVENS: But is it the choice of the legislature, or is it -- was it constitutionally limited to this provision? I'm a little unclear on what your theory is. Is it your theory, in other words, that they voluntarily did not permit appellate review of the lower courts in these election contests, or that the -- Article II prohibited them from allowing appeal to the appellate court?

MR. OLSON: No, Article II -- we do not contend that Article II


to make about whether it's necessary to have a recount is based upon the certifications.

MR. BOIES: No, it's only based on the --

JUSTICE SCALIA: Which he then accepts not de novo.

MR. BOIES: No, it's not based on the certifications that are contested. In other words, if you're going to order the manual review of the ballots the issue is, what ballots are contested, and second, is there a judicial review of those ballots?

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

MR. BOIES: Yes, but --

JUSTICE SCALIA: For which purpose you accept the certifications.

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

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

MR. BOIES: I think what the Supreme Court is saying is, you've got a certification. That certification shows a certain vote total. Now, you take that certification until it is contested. And it can be contested by either or both parties. You do not have -- until it is contested, you do not have contested ballots.

Once you have contested ballots, then, going back to State against Williams, Nuccio (sp) against Williams in 1929, cited in our papers, then it becomes a judicial question, and what the court holds is you then look at that as a judicial matter. And that is why you have, going on in Leon County, the review of the Miami-Dade ballots under the court's supervision.

Now, I would point out that we asked to have the Miami-Dade ballots reviewed. We also asked to have the 3,300 Palm Beach ballots reviewed but the Supreme Court said no to us on that. They said, yes, you can have the 9,000 Miami-Dade ballots reviewed. They also said -- which we didn't ask for -- they said, as a matter of remedy, we want to review the undervotes all around the state.

JUSTICE REHNQUIST: Mr. Boies, one of the dissenting justices on the Supreme Court of Florida said that meant 177,000 ballots. Was he correct, in your view?

MR. BOIES: No, that is a result of adding the so-called undervotes that were mentioned and the so-called overvotes that were mentioned.

Either an undervote, where no vote registers for president, or an overvote, where two or more registers for president, are discarded because you can't vote twice, and if you vote not at all -- under either circumstance, your vote doesn't get counted.

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

MR. BOIES: It's approximately 60,000, I think, Your Honor. It turns out to be less than that because of the recounts that have already been completed. But I think the total sort of blank ballots for the presidency were about 60,000.

JUSTICE STEVENS: Mr. Boies, can I ask you this question; does that mean there 110,000 overvotes?

MR. BOIES: That's right.

JUSTICE STEVENS: And if that's the case, what is your response to the chief justice of Florida's concern that the recount relates only to undervotes and not overvotes?

MR. BOIES: Well, first, nobody asked for a contest of the overvotes. And the contest statute begins with a party saying that there is either a rejection of legal votes or an acceptance of illegal votes --

JUSTICE KENNEDY: But as a matter of remedy, it's ordered a statewide recount in counties where the ballots were not contested, and that's where I'm having some difficulty. And it goes back in part to your answer that you gave to Justice Stevens -- Justice Scalia about Broward County, and in part to the answer you're giving to Justice Stevens now.

Why is it that you say on the one hand to Justice Scalia, "Oh, well these weren't part of the contest", but now all of a sudden we're talking about statewide that are not -- well, all of which are contested, but we're not talking about the overvote?

MR. BOIES: Two parts to the answer. The reason that I said what I did to Justice Scalia was that I think that if this court were to rule that there was something wrong with the statewide recounts, that they were being done by canvassing boards as opposed to directly by the court, or because the court was not supervising the particular expression of voter intent, what the court would have done is simply cut back on a remedy that we didn't ask for.

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

JUSTICE BREYER: They gave an example. The example they gave in their brief was, there's a punch for Governor Bush, and then there's a punch for "write-in," and the write-in says, "I want Governor Bush." And so I think their implication is that that would have been rejected by the machine, but if you looked at it by hand, the intent of the voter would be clear. I don't know if there are such votes, but they say there might be.

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

JUSTICE REHNQUIST: I gathered from the opinion of the Supreme Court of Florida that the vice president did not ask for as broad a recount as the Supreme Court granted, but that it thought that to do just what he wanted would be unfair; and therefore, out of fairness, they granted the wider recount. Am I correct in that?

MR. BOIES: I think that's right. I think that's what I would interpret, Mr. Chief Justice.

JUSTICE SCALIA: Mr. Boies, I have one other perplexity about the scheme that's been set up here. What -- there's a very -- as you point out, there's scant statutory provision concerning the contest. There's quite detailed statutory provision concerning the protest period. And it tells everybody how to act, and time limits and all of that. Why would anyone bother to go through the protest period, have these ballots counted by the canvassing boards, have them certify the results? Why go through all that when the whole thing begins again with a contest?

There's no -- once a contest filed, the certification is meaningless. What advantage is there to win the protest?

MR. BOIES: It's not meaningless. It become the baseline. And in every contest that has ever taken place, including this one, that has been the baseline that has determined 99-plus percent of the votes. And what is contested are simply those ballots that during the protest phase have been identified as disputed ballots. So that the protest phase solves 99 percent of the election or more. What is left over are those ballots that one side or the other has contested. And that's what the contest deals with.

JUSTICE KENNEDY: My concern is that the contest period, as we've been talking about, requires the setting of standards, judicial review. And by reason of -- well, I take it to be your earlier position in the litigation, this period has been truncated by 19 days, causing the time frame of which we're all so conscious, making it difficult for appellate review. And it seems to me, and we're getting back to the beginning of this, that the legislature could not have done that by a statute without it being a new law, and that neither can the supreme court without it being a new law, a new scheme, a new system for recounting at this late date. I'm very troubled by that.

MR. BOIES: But, Your Honor, at -- leaving aside the prior case about the extension of the time for certification, which I think at this stage you have to leave aside because at the contest stage, what you're doing is you're contesting specific ballots whether or not they were included in the certification. It's absolutely clear under Florida law that that's what the contest is about. So at the contest stage, the only question is, can you complete the contest on the contested ballots in the time available? Everything that's in the record is that we could have and, indeed, we still may be able to, if that count can go forward.

CHIEF JUSTICE REHNQUIST: Including appeals to the Supreme Court of Florida and other petitions of this court?

MR. BOIES: Excuse me, Your Honor?

CHIEF JUSTICE REHNQUIST: I said, after the circuit judge says that the contest comes out this way, surely there's going to be an appeal to the Supreme Court of Florida and likely another petition to this court. Surely that couldn't have been done by December 12th?

MR. BOIES: Your Honor, I --

CHIEF JUSTICE REHNQUIST: Could it?

MR. 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 is about another day or so -- except for four or five counties, all of the counties would be completed in about another day; and maybe even those counties could be now, because, as I understand it, some of them have taken advantage of the time to get the procedures ready to county.

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

MR. 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.

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

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

JUSTICE SCALIA: Right.

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

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

MR. BOIES: We believe that it could be done in the time available. We also believe that we have available to us the argument that says you finished what we contested. Although the Supreme Court has said as a matter of remedy it would be a good idea to do these other things that nobody asked for, that if it gets down to the point where you can -- you have done the contest and you simply have not gotten completed all of this other remedy under 168 Subsection 8, that we are still entitled under settled Florida law to have our votes counted.

JUSTICE SCALIA: Would you --

JUSTICE REHNQUIST: (Inaudible) -- the Supreme Court said you had to do it all in the interest of fairness.

MR. BOIES: I think that --

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

MR. BOIES: I did. I did, Your Honor. I think that what they were saying is that as a matter of remedy, this is the fairest way to do it. I don't think they were saying that it would violate fundamental fairness to only take into account what you could get done in the time available. There's nothing in the Supreme Court opinion that would suggest this.

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

MR. BOIES: Right.

JUSTICE SCALIA: Why would I ever bring that in a protest proceeding? Why wouldn't I just go right to the contest, because it doesn't matter whether I win or lose the protest proceeding, it's de novo at the contest stage. What possible advantage is there to go through the protest proceeding?

MR. BOIES: If you've identified the ballots, you could, presumably, wait and do it at the contest phase. There's no particular advantage to doing that. The fact --

JUSTICE O'CONNOR: I thought the advantage might be as described in the Florida case, Boardman v. Esteva (sp), saying that the certified election returns, which occur after the protest period, are presumptively correct and they must be upheld unless clearly outside legal requirements. I thought that was Florida law.

MR. BOIES: Your Honor --

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

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

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

MR. BOIES: Your Honor, I think the Boardman case relates not to the counting of votes, has nothing to do with the standard in terms of the intent of the voter. The Boardman case, the language that you're referring to is at page 268 of the Southern Reporter report of that case.

And what is clear from that page and that discussion is it's dealing with the issue of whether or not because the canvassing board threw away the envelopes from the absentee ballots, so they could not be checked, whether that invalidated the absentee ballots. And the court says no, it doesn't because it's important to count all these votes, and because we assume that what they were doing was proper.

That does not, I respectfully suggest, at all deal with the question of deference to the voter intent determination, which the court has repeatedly said is a matter for judicial determination.

The other thing that I would say with respect to intent is I know the court is concerned about whether the standard is too general or not. Some states have made specific criteria their law; other states, not just Florida -- 10 or 11 of them, including Massachusetts and the Delahunt case that we cited -- have stuck with this very general standard. There is a sense in which that may be an Article II issue.

JUSTICE SOUTER: Mr. Boies, let's assume that at the end of the day, the Leon County Florida judge gets a series of counts from different counties, and those counties have used different standards in making their counts. At that point, in your judgment, is it a violation of the Constitution for the Leon County judge to say, "I don't care if there are different standards, as long as they purported to follow intent of the voter, that's good enough."

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

MR. BOIES: Yes, I do not believe that that would violate the equal protection of due process clause. That distinction between how they interpret the intent of the voter standard is going to have a lot less effect on how votes are treated than the mere difference in the types of machines that are used.

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

MR. BOIES: No, I think it is an answer. I think there are two answers to it. First, I think that the answer that they did it differently -- different people interpreting the general standard differently -- would not raise a problem even in the absence of judicial review of that.

Second, even if that would have raised a constitutional problem, I think the judicial review that provides the standardization would solve that problem.

The third thing that I was saying is that any differences as to how this standard is interpreted have a lot less significance in terms of what votes are counted or not counted than simply the differences in machines that exist throughout the counties of Florida. There are five times as many undervotes in punch card ballot counties than in optical ballot counties. Now, for whatever that reason is, whether it's voter error or machine problems, that statistic, you know, makes clear that there's some difference in how votes are being treated county-by-county. That difference is much greater than the difference how many votes are recovered in Palm Beach or Broward or Volusia or Miami-Dade. So that the differences of interpretation of the standard, the general standard, are resulting in far fewer differences among counties than simply the differences in the machines that they have.

JUSTICE REHNQUIST: Thank you, Mr. Boies.

MR. BOIES: Thank you very much.

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

MR. OLSON: Thank you, Mr. Chief Justice. I would like to start with a point or two with respect to the equal protection/due process component of this case. The Florida Democratic Party, on November 20, was asking the -- November 20th of this year, was asking the Florida Supreme Court to establish uniform standards with respect to the looking at and evaluating these ballots, a recognition that there were no uniform standards and that there ought to be. Last Tuesday, in the 11th Circuit, unless I misheard him, the attorney for the attorney general of Florida said that the standards for evaluating these ballots are evolving.

There is no question, based upon this record, that there are different standards from county to county --

JUSTICE GINSBERG: Well, there are different ballots from county to county too, Mr. Olson. And that's part of the argument that I don't understand. There are machines, there's the optical scanning, and then there are a whole variety of ballots. There's the butterfly ballot that we've heard about and other kinds of postcard ballots.

How can you have one standard when there are so many varieties of ballots?

MR. OLSON: Certainly, the standard should be that similarly- situated voters and similarly-situated ballots ought to be evaluated by --

JUSTICE GINSBERG: Then you'd have --

MR. OLSON: -- comparable standards, and --

JUSTICE GINSBERG: Then you'd have to have several standards.

MR. OLSON: Well, you --

JUSTICE GINSBERG: County by county would be --

MR. OLSON: You're certainly going to have to look at a ballot that you mark in one way different than these punch card ballots. Our point is, with respect to the punch card ballots, is that there are different standards for evaluating those ballots from county to county. And there have -- it is a documented history, in this case, that there have been different standards between November 7th and the present, with respect to how those punch card ballots are evaluated.

Palm Springs is the best example. They started with a clear rule which had been articulated and explained to the voters, by the way, as of 1990. Then they got into the process of evaluating these ballots and changed the standard from moment to moment during the first day. And again, they evolved from the standard that the chad had to be punched through, to this so-called dimpled ballot standard -- indentations on the ballot. There was a reason why that was done. It was because they weren't producing enough additional votes, so that there's pressure on to change the standards. And that will happen in a situation which is -- where the process is ultimately subjective, completely up to the discretion of the official, and there's no requirement of any uniformity.

Now, we now have something that's worse than that. We have standards that are different throughout 64 different counties. We've got only undercounts being considered where an indentation on a ballot will now be counted as a vote, but other ballots that may have indentations aren't going to be counted at all. The overvotes are in a different category, and in this very remedy, the ballots in Miami- Dade are being treated differently.

Some of them have been all examined, and the balance of the process, the remaining 80 percent, will be looked at only in connection with the undercounts. Mr. --

JUSTICE GINSBURG: Mr. Olson, do I understand that your argument on the equal protection branch would render academic what was your main argument that's troublesome; that is, that we must say the Florida Supreme Court was so misguided in its application of its own law, that we reject that, and we, the Supreme Court of the United States, decide what the Florida law is?

MR. OLSON: I'm not sure I know the answer to that question, and whether that would render academic the challenge. There is a clear constitutional violation of our -- in our opinion, with respect to Article II, because virtually every aspect of Florida's election code has been changed as a result of these two decisions.

JUSTICE GINSBURG: But the Florida Supreme Court told us that it hasn't been changed. And just looking at one of the cases that you cite frequently, the O'Brien against Skinner case, this court said, "Well, maybe we would have decided the New York law differently, but the highest court of the state has concluded otherwise. It is not our function to construe a state statute contrary to the construction given it by the highest court of the state."

MR. OLSON: The only thing that I can say in response to that is that what this court said one week ago today -- that as a general rule, the court defers to a state court's interpretation of a state statute, but not where the legislature is acting under authority granted it -- granted to it by the Constitution of the United States.

The final point I would like to make is with respect to Section 5. It is quite clear that the court in both the earlier decision and in the -- and the decision last Friday was aware and concerned about compliance with Section 5. It construed Section 5 in a way that allowed it, by labeling what it was doing as a interpretation, to change in dramatic respects the Florida election law and, we submit, because it did so, misconstrued the applicability not only with respect to finality, but the other part of Section 5 requires a determination of controversies pursuant to a set of laws that are in place at the time of the elections.

JUSTICE BREYER: If you start with the premise a clear intent of a vote should count, where there's a clear intent on the ballot it should count as a vote, can't you reasonably get to the majority's conclusion?

MR. OLSON: I don't believe so, because we know different standards were being applied to get to that point, and they were having different results.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Olson.

The case is submitted.

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