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| SUPREME COURT HEARING | |
 December 1, 2000  |
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Jan Crawford Greenburg of the Chicago Tribune explains the significance
of today's oral arguments.
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RAY SUAREZ: For the first time in its history, the court released an audio tape of its proceedings immediately following the end of the argument. We'll make use of that tape for edited excerpts, and we'll make use of someone who was in the courtroom, our own Supreme Court watcher NewsHour regular Jan Crawford Greenburg of the "Chicago Tribune." Well, Jan, what was at the core of the two side argument going into this extraordinary session? JAN CRAWFORD GREENBURG: Just as a refresher, Texas Governor George Bush argued before the court today that Florida Supreme Court was wrong when it changed deadlines in Florida law for counties to get their election results to the state. By changing those deadlines, the court allowed the controversial manual recounts to continue. Bush said that was wrong, and it violated a federal statute passed in 1887. It also violates Article II of the U.S. Constitution which says the state legislature in the state law shall determine the appointment of presidential electors. Gore, of course, said that the state Supreme Court didn't make any new law, they didn't rewrite the law. They were just interpreting conflicting provisions in the statutes. RAY SUAREZ: And as the plaintiffs in this case, the Bush side, began, correct? JAN CRAWFORD GREENBURG: That's right. Attorney Ted Olson took the podium and started beginning to outline what the Bush team thought this case was about. And he was immediately cut off by Justice Sandra Day O'Connor. CLERK: The Honorable, the chief Justice and the associate Justices of the Supreme Court of the United States. Oyez, oyez, oyez, all persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the court is now sitting. God save the United States and this honorable court. ( Bangs gavel ) CHIEF JUSTICE WILLIAM REHNQUIST: We'll hear argument this morning in number 00836, "George W. Bush versus The Palm Beach County canvassing board." Mr. Olson? THEODORE OLSON: And may it please the court. Two weeks after the November 7 presidential 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 express delegation of authority, to wit, by the United States Constitution. The election code that the Florida legislature developed conformed to Title III, Section V 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. JUSTICE SANDRA DAY O'CONNOR: Well, Mr. Olson, isn't section v sort of a safe harbor provision for states? And do you think that it gives some independent right of a candidate to overturn a Florida decision based on that section? THEODORE OLSON: We do, Justice O'Connor. It is a safe harbor, but it's more than that. And Section V of Title III needs to be construed in connection with the history that brought it forth. JUSTICE SANDRA DAY O'CONNOR: Yes, but I would have thought it was a section designed in the case of some election contests that ends up before the Congress, a factor that the Congress can look at in resolving such a dispute. I just don't quite understand how it would be independently enforceable. JAN CRAWFORD GREENBURG: Now, Justice O'Connor here has picked up on what is a key point in Vice President Gore's brief that he filed with the court. And that is that this law, this federal law that was passed back in 1887 that says controversies regarding the appointment of electors shall be determined by laws in place on Election Day; that that refers to disputes way up in Congress, and that that law was, as Gore argued, a safe harbor to prevent Congress from essentially hijacking an election from the states. O'Connor immediately picks up on that exact phrase that Gore himself had introduced in his legal papers, an important point for the Vice President. Now, another important argument that Vice President Gore's attorneys pushed was that the state court here, the Florida Supreme Court, wasn't making any new law when it reset this deadline and allowed the hand counting to continue; and that federal courts should be very respectful of that decision because federal courts shouldn't be getting involved in these kinds of state law issues and second-guessing state courts on state law. And that point is what Justice Ginsburg picks up in this next audio tape. JUSTICE RUTH BADER GINSBURG: May I ask, because you've been skipping over what I thought was a key piece of the Florida legislation. The Florida Supreme Court said there is a deadline and that conflicts with another provision of this law, the provision that says, there shall be, under certain circumstances, recounts. And then there is a rather detailed description of the process that's necessary, the timeline for when you can ask a recount is on the sixth day. SPOKESMAN: Of two. JUSTICE RUTH BADER GINSBURG: Yes, of two, and it would be impossible in a populous county to, in one day, do what the statute instructs must be done when there's a recount. The Florida Supreme Court said, it's right in its opinion, there are two conflicts and the first one they mention straight out on page 21-A of your appendix is that there has to be a reconciliation between this. Yes, there can be recounts, and, yes, there is a deadline. So they are trying to reconcile two provisions. THEODORE OLSON: Under any other kind of election these things wouldn't be nearly as important, but we have very important timetables. And as this court has said, a presidential election is so important to the rest of the nation and there's such a high federal interest in accomplishing these things in the right way, what the Florida legislature did is balance the protest period, the recount period with the contest period and state that there shall be certain deadlines before which certain things need to be done and after which. So what those two statutes say is that there may be a recount, but that there shall be compliance with the time deadline. It also says that... JUSTICE RUTH BADER GINSBURG: But that's something that one could certainly
argue. My problem is one could also argue what the Florida Supreme Court
said and I do not know of any case where we have impugned a state Supreme
Court the way you are doing in this case. In case after case, we have
said we owe the highest respect to what the state says... the state
Supreme Court says, is the state's law. JAN CRAWFORD GREENBURG: It did, and Justice Breyer focused on that because actually, the picture has changed here since the court announced that it would get involved. When the court said it would take this case, Governor Bush hadn't been certified as the winner of Florida's 25 electoral votes. And so there was a very live issue before the court. For example, if Bush had lost, the court's decision could have really made the difference. So today in the courtroom, Justice Breyer was really trying to push the attorney who represented Secretary of State Katherine Harris on what impact the court's decision now would have. Would it just be kind of narrowing Governor Bush's margin of victory in Florida, a few hundred votes that was all the Supreme Court decision will do if Bush were to prevail? And the attorney, Joseph Clark, said no, there is much more at stake than a few hundred votes. And he explains to Justice Breyer in this next audiotape that we have about the very enormous implications of this case and how it actually could have a major impact on whether or not Vice President Gore is successful in his contest that he is now waging in the Florida state courts down in Tallahassee. JUSTICE STEPHEN BREYER: My question is, is there any respect in which this really makes a difference, this case, how -- I'm thinking if it does make a difference, numbers of voters, is that kind of thing right for us to decide now? How could it make a difference? What's the consequence of our going one way or the other now in this case? JOSEPH KLOCK: Your Honor, it makes an enormous difference because the relief that has been requested would be for the court to determine that the law, in effect, at the time of the election was that manual recounting of ballots would not be permitted to address voter error, which I think has been extensively briefed. JUSTICE STEPHEN BREYER: We don't have... suppose they won, and the relief was... suppose your side won, and the relief was fine, it should have been certified on November 14 or 18 instead of November 26. Now, what's the consequence of that -- just that, forgetting what the reasoning is -- is there a consequence that flows from that that is real, adverse, you know, significant, concrete, that we can predict now as opposed to speculating? JOSEPH KLOCK: The only immediate result would be that you would have a margin that was... Instead of being 536 votes would be 900- and-some odd votes, and it would only be added to as a result of whatever was added by the overseas ballots. JUSTICE STEPHEN BREYER: Fine. In this case, it's said... We've said a claim is not right if it rests upon contingent future events that may not occur as anticipated or indeed may not occur at all. And so what I wonder is in this realm of speculation as to whether or not it will or will not make a difference, a difference to the outcome of the election? JOSEPH KLOCK: It will make a difference to the outcome of the election because there is an ongoing contest which is interrelated and is involved in the Supreme Court's opinion, and of course because the Supreme Court of Florida in coming up with the remedy that they came up with completely changed the period of time from a relatively short period of time, seven days for a protest, and a much longer period for a contest, we now have a situation where there is 19 days for the protest and 16 days for the contest. JUSTICE ANTONIN SCALIA: Well, it's too late to lengthen the time for the contest. I mean, to the extent that they have shortened the contest time, you know, that's water over the dam right now, isn't it? JOSEPH KLOCK: Yes, Justice Scalia. But the issue here... I'm sorry. JUSTICE ANTONIN SCALIA: Is it not the case that if the votes are as they have been shown to be under the Florida Supreme Court's opinion, the race is much closer, and therefore some counties under Florida law would conduct recounts that otherwise would not conduct recounts? Doesn't whether a recount is conducted depend upon how likely it is that the recount is going to change the outcome? JOSEPH KLOCK: Your Honor, if the law is returned to the point it was on November 7, there is no right to a manual recount to correct voter error, and that will end the litigation that currently exists in the state of Florida, which were the opinions of the secretary of state's division of elections that were issued, and also the state of the law as it existed at that point in time. JAN CRAWFORD GREENBURG: Now, Ray, if you left the courtroom at this moment, you would you get the impression that the Justices had been very hostile to the arguments that Governor Bush's attorneys had tried to make. But in fact, there's another side of this story, and let me just... I mean, this is a very active court, a very skeptical court. They... in every case they press the attorneys vigorously looking for weaknesses in their cases. That's what they did in the first half of these historic arguments. And then as we'll see in the next set of videotapes, they certainly don't let attorneys for Vice President Gore off the hook either. They get just as rough of a treatment. RAY SUAREZ: So at this point in the first half, you've been watching these attorneys for the Bush team and for his partners in this litigation... JAN CRAWFORD GREENBURG: Right, supporting his side. RAY SUAREZ: ...Being peppered with questions. JAN CRAWFORD GREENBURG: Right. It was a very vigorous give and take between the Justices and the two attorneys as they're trying to expose holes or weaknesses, how this case, as we saw, might be applied here in this election, how it might be applied in other controversies down the road in other potential elections. That's why the Justices in any case have to so vigorously try to expose how their cases might ultimately be applied. And this is an active, active court. And we'll see it coming up that they spare no one. RAY SUAREZ: So at about the halfway mark, the Gore team steps up to the bench. JAN CRAWFORD GREENBURG: That's right. 45 minutes into the argument, a lawyer representing the Florida attorney general, who now is on the other side, steps up to begin pressing his case that the Florida Supreme Court, in fact, did nothing wrong; that it was merely interpreting conflicting statutes and conflicting provisions in the law. And this is when we'll now see some of the Justices who earlier seemed to be a little concerned and dubious of arguments made by Governor Bush's attorneys, express their own doubts about arguments that the Gore side is making, particularly those moderates that we always look to, the swing votes, as we refer to them, Justices Anthony Kennedy and Justice Sandra Day O'Connor, they're invariably the ones we have to look at in these closely watched and evenly divided disputes. And they're I believe at the heart of our next audiotape. JUSTICE ANTHONY KENNEDY: In your brief, you say you conclude that the Florida Supreme Court, like any state court, exercises its inherent equitable powers to remedy a threat to fundamental constitutional rights, and it rewrote the certification deadlines according to that power, did it not? PAUL HANCOCK: The only-- yes, Justice Kennedy-- the only equitable power exercised by the court was setting the deadline. JUSTICE ANTHONY KENNEDY: Isn't that such an amorphous, general, abstract standard that it can't possibly be said to be a law that was enacted and in place at the time of the election? PAUL HANCOCK: The laws were in place before the election, and those laws granted to the judiciary the... JUSTICE SANDRA DAY O'CONNOR: Well, but certainly the date changed. That is a dramatic change, the date for certification, right? And it was done by the court. PAUL HANCOCK: Yes, it was done... JUSTICE SANDRA DAY O'CONNOR: And the legislature had very clearly said, you know, seven days after, that's the date, and it just does look like a very dramatic change made by the Florida court. And I'm wondering if that is consistent in fact, with the notion expressed at least in Section 5, so that the result would be, if it did go to Congress, it would be a change. PAUL HANCOCK: The... I agree that the date was implemented pursuant to the court's equitable powers. Other than that, it was a routine exercise in statutory construction. The court was faced with a situation, first of all, where because of conflicting advice, the counties had started and then stopped conducting manual recounts because of advice from the secretary of state, which the Supreme Court ultimately concluded to be erroneous. RAY SUAREZ: It sounds like the Justices were spending a lot of time with these lawyers trying to figure out where the Florida legal code ends and how it meshes with the United States code. Did the Justices spend a lot of time questioning sort of constitutional matters, where federal law reigns and where Florida law reigns? JAN CRAWFORD GREENBURG: Sure; obviously the last tape we heard focused on the federal statute, the one that said the controversies had to be resolved with laws in place on Election Day. And despite what Justices O'Connor and Kennedy said then, some of their earlier concerns must still kind of ring true, I think, in your ears at the end of the day, and whether or not that federal statute really did constrain the Florida Supreme Court from doing what it was doing. RAY SUAREZ: So they spent a lot of time talking about the 1887 law. JAN CRAWFORD GREENBURG: That's right, because that was one of, you know, Governor Bush's... in fact, his first claim to the court was that the Florida Supreme Court's decision had run afoul of this 1887 law about appointing electors with laws in place on election day. Obviously, you know, they said the court's ultimate decision changed the deadline, allowed the manual counts to continue. That was a new law, the Bush camp says. So they created this new law and violated this old federal law. But they spent a lot of time on that, but they really saved the best, and I think the meatiest issue, and perhaps the most persuasive issue for Governor Bush until the end. And one thing that is striking about this, I think, is that this is an issue that even Governor Bush did not present to the court until page 47 of his 50-page brief that he filed earlier in this week. And it shows that you never know where the Justices are going to go with something. And that's the constitutional issue, whether or not the Florida Supreme Court in fact in its decision, violated the U.S. Constitution that a provision in article 2 that says the state legislature to determine the manner in which presidential electors are appointed. And that's where we pick up now with the next section of audiotape. JUSTICE ANTONIN SCALIA: I read the Florida court's opinion as quite clearly saying, "having determined what the legislative intent was, we find that our state constitution trumps that legislative intent." I don't think there is any other way to read it. And that is a real problem, it seems to me, under Article 2, because, in fact, there is no right of suffrage under Article 2. There is a right of suffrage in voting for the legislature, but Article 2 makes it very clear that the legislature can itself appoint the electors. LAURENCE TRIBE: But it seems to me that it's already been conceded that the legislature can delegate that function to the Judiciary, and when Justice Kennedy asked if it can delegate the function to the Judiciary-- and that is what McPherson seems to suggest-- then can it not delegate something less? That is, can it not give the Judiciary a role of the sort that it's exercising here? After all, the legislature-- and this is important, it's not true in every state-- the legislature itself repromulgates the Constitution every several years, and then it's ratified by the people. JUSTICE DAVID SOUTER: Isn't there another way of looking at what the Florida court did, and that was, in effect, to apply the statute to the interpretive criteria, that where there is any discretion for interpretation, an unconstitutional result should be avoided and because you have here a statute, as I understand it, that regulates both federal and state recounts. That much is, I think, is clear. LAURENCE TRIBE: Right. JUSTICE DAVID SOUTER: The only way to avoid an unconstitutional meaning of the statute, so far as Florida law was concerned, was to get into this constitutional concern about preserving the franchise. And that because the legislature intended one standard to cover both federal and state recounts, it therefore is valid to consider the state constitution in order to derive a general meaning that will apply to a federal as well as a state election. Can you look at it that way? LAURENCE TRIBE: I fully accept that view, Justice Souter; I would supplement it with one important point. We're not dealing here with a decision in which, within the gray area in which a court could reasonably go either way; this court simply said, "we don't care about these federal considerations." It in particular exercised equitable powers in order to facilitate meeting the December 12 deadline, while still being able to have electoral contests. That deadline comes purely from federal law. RAY SUAREZ: And there we hear Gore Attorney Lawrence Tribe in argument with Justices David Souter and Antonin Scalia. Remind us quickly what Article 2 of the Constitution says. JAN CRAWFORD GREENBURG: It says that... It gives the state legislature power to determine the manner in which presidential electors should be appointed. Of course the Bush lawyers say that the state Supreme Court in its ruling and resetting of the law and allowing the hand count usurped that power, and, in fact, set a new deadline. Now, what is going on here, though, in this transcript is that Justice Scalia and several of the more conservative Justices on the court are concerned that the Florida Supreme Court has focused too much on the Florida constitution that talks about the right to vote being paramount, and that the Florida Supreme Court has actually forgotten all about, just blew right past article 2, the U.S. Constitution which, as we all know, reigns supreme. So that's what we'll see in the next tape. JUSTICE ANTONIN SCALIA: 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. SPOKESMAN: Well, I have to say my opinion is parallel... JUSTICE ANTON SCALIA: What makes you think the Florida legislature affirmatively invited the Florida Supreme Court? LAURENCE TRIBE: The odd thing is, the system in Florida involves their own repromulgation 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, and all others are to be resolved in the courts under a standard that they understandably reaffirm. JUSTICE ANTONIN 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. LAURENCE TRIBE: I suppose if they were at all farsighted, if they looked at their work and saw how contradictory it was, they might say we would want someone with the authority to reconcile these provisions to do so in the light not only of the literal language, but of the fact they are dealing with something very important -- the franchise. Disenfranchising people, which is what this is all about, disenfranchising people, isn't very nice. JUSTICE ANTONIN SCALIA: But wouldn't Justice... LAURENCE TRIBE: Then violate the federal as well as the state constitution. RAY SUAREZ: And Jan, after this exchange between Laurence Tribe and Antonin Scalia, the court adjourned. Now what machinery now goes into motion? JAN CRAWFORD GREENBURG: Well, now we wait. I mean, now we wait to see how the court is going to ultimately resolve this very difficult issue that it has before it: Whether or not the court even issues an opinion, as we saw Justice Breyer suggesting that maybe this wasn't a right issue at the right time for this court; whether or not they issue a narrow opinion that says to the Florida Supreme Court, go back and look at the U.S. Constitution and rethink your decision; or maybe they just affirm the Florida Supreme Court, which obviously would give the Vice President the legal and certainly the political victory. But as we have seen throughout this entire process, it is certainly anyone's guess as far as timing and what they're going to do ultimately. RAY SUAREZ: Jan Crawford Greenburg, thanks a lot for your help in that peek behind the court walls. MARGARET WARNER: The audio portions of today's hearings and the complete transcript are available on our Web site.
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