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Supreme Court Hearing:
Gov.
Bush arguments
Florida Sec. of
State Harris arguments
Vice President Gore arguments
Online NewsHour Special Report:
Election 2000
Dec. 7, 2000:
Analysis of the Fla. Supreme Court arguments.
Dec. 7, 2000:
Brooks,
Broder and Oliphant give their predictions.
Dec. 6, 2000:
Power
sharing in a 50-50 Senate.
Dec. 6, 2000:
Power
sharing in a 50-50 Senate.
Dec. 5, 2000:
Columnists
discuss the election.
Dec. 5, 2000:
Cheney and Lieberman visit Capitol Hill.
Dec. 4, 2000:
Congressman
Nadler on the U.S. Supreme Court ruling.
Dec. 4, 2000:
Montana
Gov. Racicot on the the U.S. Supreme Court ruling.
Dec. 4, 2000:
Analysis
of the rulings of Judge Sauls and the Supreme Court.
Dec. 1, 2000:
An
explanation of the Supreme Court hearing.
Dec. 1, 2000:
Legal
scholars examine the Supreme Court hearing.
Dec. 1, 2000:
Gigot
and Oliphant look at the election situation.
Nov. 30, 2000:
Debating
cameras in the Supreme Court.
Nov. 30, 2000:
Florida
legislators consider choosing electors.
Nov. 29, 2000:
The ongoing Florida
legal battles.
Nov. 28, 2000:
The campaigns file briefs
for the Supreme Court hearing.
Nov. 28, 2000:
Regional
commentators talk about the election.
Nov. 27, 2000:
Sen.
Joe Lieberman discusses his campaign's legal case.
Nov. 27, 2000:
GOP Gov.
Marc Racicot addresses the Gore challenge.
Nov. 27, 2000:
Shields and Brooks look at politics
after certification.
Browse the NewsHour coverage of Politics
& Campaigns and Law.
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JUSTICE REHNQUIST: Mr. Boies, we'll hear from you.
MR. BOIES: Thank you. Mr. Chief Justice, may it please the court: Let
me begin by addressing what happened in the Beckstrom case that Mr.
Klock referred to.
JUSTICE KENNEDY: Could we begin with jurisdiction first?
MR. BOIES: Yes.
JUSTICE KENNEDY: The Supreme Court of Florida said that it took -- that
it was cognizant and the legislature was cognizant of 3 USC Section
5. And for convenience sake, let's call that "new law." That's
not exactly the -- but when the Supreme Court used that word, I assume
it used it in a legal sense. "Cognizance" means to take jurisdiction
of, to take authoritative notice. Why doesn't that constitute an acceptance
by the Supreme Court of the proposition that 3 USC Section 5 must be
interpreted in this case?
MR. BOIES: I think, Your Honor -- and obviously, this court and the
Florida Supreme Court is the best interpreter of that opinion -- but
I think a reasonable interpretation of that opinion is to say that what
the Florida Supreme Court meant by cognizant is that it was taking into
account the desire to get the election over in time so that everyone
would have the advantage of a safe harbor. I think that goes throughout
the opinion.
JUSTICE KENNEDY: The language used in 3 USC Section 5 is garden variety
language so far as the courts are concerned. We can determine whether
or not there is a new law or an old law. That's completely susceptible
of judicial interpretation, is it not?
MR. BOIES: Yes, I think it is, Your Honor.
JUSTICE KENNEDY: All right. And it seems to me that if the Florida court
and, presumably, the Florida legislature have acted with reference to
3 USC Section 5, that it presents now a federal question for us to determine
whether or not there is or is not a new law by reason of the various
Florida Supreme -- the two Florida Supreme Court decisions.
MR. BOIES: Except, Your Honor, what the Florida Supreme Court did in
its opinion is to say that in terms of looking at how to remedy the
situation, it needed to be cognizant of the fact that there was this
federal deadline out there that was going to affect Florida's electors
if that deadline was not met.
JUSTICE KENNEDY: Well, of course the deadline is meaningless, if there
is a new law involved, and that's part of the equation too.
MR. BOIES: Yes, but what I would say is that whether or not there is
a new law, that is whether there is a change in the enactment in the
language of the statute -- or the constitution, is something that has
to be decided in the initial instance by the Florida Supreme Court interpreting
Florida law. And that's what --
JUSTICE REHNQUIST: There are really -- Mr. Boies, there are really two
parts to that sentence of Section 5 we're talking about. One is the
law in effect at the time, and the other is finally determined six days
before the date for choosing the electors. Do you think the Florida
Court meant to acknowledge -- it seems to me since it cited -- (word
inaudible) -- it must have acknowledged both of those provisions.
MR. BOIES: I don't know exactly what was in the Florida Supreme Court's
mind, but I think that, 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.
JUSTICE REHNQUIST: So that's the "finally determine" portion
of Section 5?
MR. 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. What the court is saying is --
JUSTICE KENNEDY: Well, 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?
MR. BOIES: You mean by shortening it?
JUSTICE KENNEDY: Without -- without contravening the section which says
that there should be no new law under safe harbor. Could the Florida
Supreme Court have done what the -- what that -- could the Florida legislature
have done what that Supreme Court did?
MR. BOIES: I think that it would be unusual. I haven't really thought
about that question. I think they probably could not --
JUSTICE KENNEDY: Consistently, because that would be a new law under
Section 5.
MR. BOIES: Yes, because it would be a legislative enactment as opposed
to a judicial interpretation of an existing law. Remember --
JUSTICE KENNEDY: And in fact it would be a new law under our preclearance
jurisprudence, wouldn't it?
MR. BOIES: I think not -- I think not, Your Honor, because if you go
back to the State against Chapell (ph) in 1988, where the Florida Supreme
Court faced the very question of whether or not that seven-day period
was an iron curtain that came down, the Florida Supreme Court said it
was not. The Florida Supreme Court said that you had to look as to whether
there was substantial compliance. In that case, three days was found
to be substantial compliance. That was a situation in which there was
telephone notice, which was not adequate for certification. It was then
followed up --
JUSTICE KENNEDY: If we -- if we assume the legislature would run contrary
to the new law prohibition in the statute, wouldn't the Supreme Court
do it if it does exactly the same thing?
MR. BOIES: Except what I'm saying you're honor is that it wasn't doing
exactly the same thing because it wasn't passing a new, it was interpreting
the existing law. If the -- if the legislature had said --
JUSTICE KENNEDY: I'm not sure why if the -- if the legislature does
it, it's a new law, and when the supreme court does it, it isn't.
MR. BOIES: No --
JUSTICE KENNEDY: Both would have to -- you have to preclear judicial
ruling to see whether they're new laws, don't you?
MR. BOIES: What I'm saying, Your Honor, is that if the supreme court
had rewritten the law the way you hypothesized the legislature rewrote
the law, it might very well be a difference. What I'm saying is that
the Florida Supreme Court did not rewrite the law in the way that you
hypothesized. What the Florida Supreme Court was confronted with was
a statute, and that statute said -- and it was the later- passed statute,
and you get back into the may and the shall, the may statute was the
later-passed statute, and so what the Florida Supreme Court said is
"We have to look at what is the criteria by which you decide whether
you may ignore and will ignore these returns?" And what the Florida
Supreme Court said, "We're going to interpret that exactly the
way we've interpreted it for 25 years."
And 12 years before the Florida Supreme Court made this decision, it
had made the State against Chappell (sp) decision in which it had approached
it from exactly the same policy grounds.
JUSTICE SCALIA: Well, it was quite a different -- I mean, there, indeed,
telephone notification had been given within the deadline and the actual
written material was not submitted until a few days after. I think that's
quite a bit different from extending the period generally and for all
submissions for a -- you know. But I'm not sure --
MR. BOIES: Well, if I could respond to that, Your Honor --
JUSTICE SCALIA: I'm not sure that you and Justice Kennedy are
disagreeing on very much. It seems to me you acknowledge that if the
Florida Supreme Court's interpretation of this law were not a
reasonable interpretation, just not -- not one that would pass normal
judicial muster -- then it would be just like the legislature writing
a new law. But your contention here is that this is a reasonable
interpretation of the Florida law.
MR. BOIES: I think the way I would put it, Your Honor, is that if you
conclude that the Florida Supreme Court's interpretation of Florida
law is either a sham or it is so misguided that it is simply untenable
in any sense --
JUSTICE SCALIA: Right.
MR. BOIES: -- I think, at that point, then you can conclude that what
it has done is, has changed the law. But I think the standard is the
standard this court has generally applied in giving deference to state
supreme court decisions.
JUSTICE O'CONNOR: But is it, in light of Article II? I'm not so sure.
I mean, I would have thought that that bears on the standard, frankly,
when it contemplates that it is plenary power in the legislature. 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? I would think that is a tenable view, anyway,
and especially in light also of the concerns about Section 5.
MR. 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.
JUSTICE O'CONNOR: But -- but -- (word inaudible) -- 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"?
MR. BOIES: I think -- I think there is, in a sense, Your Honor, and
I think the Florida Supreme Court was grappling with that --
JUSTICE O'CONNOR: And you think it did it properly?
MR. BOIES: I think it -- I think it did do it properly.
JUSTICE O'CONNOR: That's -- 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 and deadlines were just
fine and they'd go ahead and adhere to them. And I found that troublesome.
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| Protest
and contest statutes |
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MR. BOIES: Your Honor, if I could; one of the things that was argued,
from the beginning, by Governor Bush's counsel, and accepted by the
Florida Supreme Court, was that the protest statute and the contest
statute were very separate procedures. There was a time limit in the
protest context prior to certification. But there is no time limit in
the contest statute process, which is what we're in now. And I think
that the Florida Supreme Court was focusing on this contest period,
which is what is really before -- was before them and is before you.
And in the contest --
JUSTICE O'CONNOR: But I thought -- and maybe I'm mistaken, but I thought
it directed that certain votes that had been tabulated after the expiration
of the original certification date were to be included now, without
reference to the point at all that their opinion had been vacated. I
just didn't know how that worked.
MR. BOIES: Well, there are three different groups of votes, okay? And
with respect -- Broward, Palm Beach, and Miami-Dade.
With respect to Miami-Dade and Palm Beach, there was a trial. There
was a contest trial. It is the appeal from that trial that is before
this court. And the petitioners don't really refer to what's in the
trial record, but in that trial record, there was undisputed evidence
that the votes that were coUnited there were valid, legal votes. Now
whether those votes were coUnited as part of the certification process
or not, once you know they're valid votes --
CHIEF JUSTICE REHNQUIST: Because this was the trial and this was --
this was the trial, Mr. Boies, in the circuit court of Miami-Dade?
MR. BOIES: Yes --
CHIEF JUSTICE REHNQUIST: And --
MR. BOIES: -- no, no, in the circuit court of Leon County. Because it's
a statewide election, the contest procedure takes you to Leon County,
regardless of where the votes were cast.
But what the court found there -- and there was undisputed evidence,
and Mr. Richard, who was Governor Bush's counsel here, conceded that
the Palm Beach board had applied the appropriate standard in identifying
votes, the so-called 215 additional net votes for Vice President Gore
and Senator Lieberman -- what you had there was undisputed evidence.
It was found as a matter of fact. And the Supreme Court, reviewing that
trial, said you've had these votes identified by Miami-Dade, 168 net
votes; by Palm Beach, 215 net votes; and those votes need to be included,
not because they were part of the certification process --
JUSTICE SCALIA: It not only said that; it said that those votes have
to be certified.
MR. BOIES: Yes, Your Honor --
JUSTICE SCALIA: It said that those votes had to be certified, which
certainly contravenes our vacating of their prior order.
MR. BOIES: I think not, Your Honor, because when you look at the contest
statute, it is a contest of the certification. That is, the process
-- the results are certified, and then what happens is you contest whether
that certification is right.
JUSTICE SCALIA: I understand. But this -- but what the Florida Supreme
Court said is that there shall be added to the certification these additional
numbers.
MR. BOIES: But that's true in any contest. Every single contest --
\JUSTICE SCALIA: It's not added to the certification.
MR. BOIES: Yes, of course --
JUSTICE SCALIA: You may do a review of the ballots and add more numbers,
but as I read the Florida Supreme Court opinion, it said the secretary
of state will certify these additional --
MR. BOIES: Yes, because the contest procedure is a procedure to contest
the certification. What you're doing is you're saying this certification
is wrong, change it. That's what every contest proceeding is. And what
the Florida Supreme Court was saying after the trial is, yes, you proved
that this certification is missing 215 votes.
JUSTICE SCALIA: The certification as rendered by the secretary of state
did not include those additional ballots for your client. And the Supreme
Court directed that the certification would be changed to include those.
MR. BOIES: But Your Honor, that is what happens every time there is
a successful contest. A contest is a contest of the certification. You
have the certification of the results --
JUDGE SCALIA: (Inaudible) -- make any sense to me. You have a certification
which is made by the secretary of state. That is what is contested.
MR. BOIES: Right.
JUSTICE SCALIA: And here the certification was directed to be changed.
MR. BOIES: But let --
JUSTICE BREYER: Does it matter? By the way, does it matter --
MR. BOIES: -- (inaudible) -- be coUnited.
JUSTICE BREYER: -- does it matter if they said in Palm Beach and Miami-Dade,
the ones that the court said you must certify, if they were thrown into
the others, (said recount them ?). If it's uncontested in the trial,
I guess that you'd get to the same place.
MR. BOIES: I think you get to exactly the same --
JUSTICE BREYER: So it doesn't really matter.
MR. BOIES: I think it doesn't really matter what they said.
JUSTICE BREYER: But Broward might.
MR. BOIES: But Broward might.
JUSTICE BREYER: Would you object if they have a different standard to
recounting those --
MR. BOIES Broward is a different situation.
JUSTICE BREYER: Yeah.
MR. BOIES: With respect t to Broward, what you have is you have these
votes that have been coUnited and were included in the certification.
And if you were to assume that that certification that came in on November
26th is somehow void, then those ballots would have to be considered
just like the Dade and the Palm Beach ballots. So I think there is a
distinction between Broward and --
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| Uniform
standard |
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JUSTICE KENNEDY: Do you think that in the contest phase, there must
be a uniform standard for counting the ballots?
MR. 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.
JUSTICE KENNEDY: That's very general. It runs throughout the law. Even
a dog knows the difference between being stumbled over and being kicked,
and you know it. Now, in this case -- 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?
MR. BOIES: I think --
JUSTICE KENNEDY: Could that vary from county to county?
MR. BOIES: I think it can vary from individual to individual. I think
that just as these findings --
JUSTICE KENNEDY: So that even in one county could vary from table to
table on counting these ballots or counting those --
MR. BOIES: I think on the margin, 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
--
JUSTICE KENNEDY: But here you have something objective. You're not just
reading a person's mind.
MR. BOIES: Well --
JUSTICE KENNEDY: You're looking at a piece of paper. And the supreme
courts in the state South Dakota and in the other states have told us
that you will count this if it's hanging by two corners or one corner.
This is susceptible of a uniform standard. And yet you say it can vary
from table to table within the same county.
MR. 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.
JUSTICE SOUTER: But they have ended up with the catch-all provision
because, I assume, there may be cases in which the general rule would
otherwise operate, in which there is an affirmative counter-indication
to what the general rule would provide.
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. And
there is a general rule being applied in a given county that an objective
intent, or an intent on an objective standard will be inferred. And
that objective rule varies, we're told, from county to county. Why shouldn't
there be one objective rule for all counties, and if there isn't, why
isn't it an equal protection violation?
MR. BOIES: Let me answer both questions. First, I don't think there
is a series of objective interpretations; objective criteria that vary
county by county.
JUSTICE 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?
MR. 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.
JUSTICE 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, and 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 other -- there
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?
MR. BOIES: I don't think -- I don't think so, Your Honor, because --
and maybe I am quarreling with the premise that says there are these
objective criteria -- 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
problem.
JUSTICE 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?
MR. BOIES: Well -- (pause) -- I think that's a very hard question. (Laughter.)
JUSTICE SOUTER (?): You'd tell them to count every vote. You'd tell
them to count every vote, Mr. Boies, wouldn't you?
MR. BOIES: I would tell them to count every vote -- (Laughter.)
JUSTICE STEVENS: Well, let me ask you -- before you answer that question,
Mr. Boies --
MR. BOIES: I think I would say that if you're looking for a standard
-- and I say that not because of the particular aspects of this election
-- the Texas standard, if you wanted to specify something that was specific,
gives you a pretty -- pretty good standard. The only thing I'd like
--
JUSTICE STEVENS: Let me ask this question, Mr. Boies. It really -- does
not the procedure that is in place there contemplate that the uniformity
will be achieved by having the final results all reviewed by the same
judge?
MR. BOIES: Yes. That's what I was going to say, Your Honor, that what
you have here is, you have a series of decisions that people get a right
to object to, that is all going through a process; the people are there,
they submit written objections, and then that's going to be reviewed
by a court.
JUSTICE STEVENS: All right.
|
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| Establishing
voter intent |
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JUSTICE SCALIA: Well, that causes me some problems that pertain not
just to the equal protection aspect of this, but to the rationality
of the Supreme Court's opinion, because the Supreme Court opinion, on
the one hand, said, as you've just repeated, that there was to be de
novo review by the circuit judge in Leon County.
But on the other hand, it said that he had to accept the counts that
had come out of Palm Beach and Broward counties. It was clear that
Broward and Palm Beach counties had applied different criteria to dimpled
ballots; one of them was counting all dimpled ballots, the other one
plainly was not.
The voter, and on the other hand say you have to accept, give some deference
to, quite differing standards by two different counties? That's just
not rational.
MR. BOIES: Your Honor, I think what the court held was not include both
Broward and Palm Beach, I think it was Palm Beach and Miami-Dade, because
Broward was not part of the trial because Broward had been certified.
And with respect to Miami-Dade and Palm Beach, I do not believe that
there is evidence in the record that that was a different standard.
And there's no finding in the trial court that that was a different
standard. Indeed, what the trial court found was that both Miami-Dade
and Palm Beach properly exercised their counting responsibilities. So
I don't -- I don't think that --
JUSTICE SCALIA: What do you mean, properly exercised what, their discretion,
right? Is that what he meant by counting responsibilities?
MR. BOIES: I believe what he meant was discerning the clear intent of
the voter, which is what they were both attempting to do.
JUSTICE REHNQUIST: Was this the trial before Judge Sauls?
MR. BOIES: Yes, Your Honor.
JUSTICE REHNQUIST: Well he -- I thought he ruled against the contestants;
said they took nothing.
MR. BOIES: Yes, that is right. But he did so based on what the Florida
Supreme Court held, and what six justices of the Florida Supreme Court
held were two errors of law: First, that we had to prove, before he
looked at the ballots, that there was a probability that the election
result would be changed; and second, that we had to prove abuse of discretion.
JUSTICE REHNQUIST: But the fact-finding phase of that trial before him,
you say these were found as a fact in some -- did he make findings of
fact?
MR. BOIES: Yes, he did.
JUSTICE REHNQUIST: What did he say with respect to this?
MR. BOIES: With respect to this, he said first -- and he said it separately
with respect to Miami-Dade and Palm Beach, is he found that they had
properly exercised their discretion. The Palm Beach chairman of the
canvassing board actually was a witness, Judge Burton. He came and testified.
And he testified that they used a clear-intent-of-the-voter standard.
JUSTICE REHNQUIST: As opposed to just intent of the voter.
MR. BOIES: Yes, just intent. They used clear intent of the voter. And
the statute sometimes -- in one section it says, "clear intent
of the voter" -- that's the one that petitioner's counsel was referring
to; in 166, it refers in subsection 7-b to the "intent of the voter."
But Palm Beach used the clear intent of the voter and found hundreds
of ballots that they could discern the clear intent of the voter from
that were not machine-read.
Now, in doing so, they were applying Florida law. And like the law of
many states, it has a general standard, not a specific standard.
JUSTICE O'CONNOR: Were those dimpled or hanging chads, so to speak?
MR. BOIES: Well, what he testified is that you looked at the entire
ballot, that if you found something that was punched through all of
the way in many races but just indented in one race, you didn't count
that indentation because you saw that the voter could punch it through
when the voter wanted to. On the other hand, if you found a ballot that
was indented all the way through, you coUnited that as the intent of
the voter.
JUSTICE O'CONNOR: With no holes punched.
MR. BOIES: With no holes punched but where it was indented in every
race.
JUSTICE O'CONNOR: That was coUnited as proper in --
MR. BOIES: In Palm Beach.
JUSTICE O'CONNOR: -- Palm Beach.
MR. BOIES: Another thing that they coUnited was, he said they discerned
what voters sometime did was instead of properly putting the ballot
in where it was supposed to be, they laid it on top, and then what you
would do is you would find the punches went not through the so-called
chad but through the number.
JUSTICE 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?
MR. BOIES: Well, Your Honor, because in Florida law since 1917, Darby
against State (sp), 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 coUnited.
And the thing I wanted to say about the Beckstrom case is that was a
case that used optical ballots. Voters were told, "Fill it in with
a Number 2 pencil." Several thousand didn't. They used everything
else, but not a Number 2 pencil. And so the machine wouldn't read it.
It was voter error. The Supreme Court in 1998, well before this election,
said you've got to count those votes. And in fact, they coUnited those
votes, even though the way the canvassing board dealt with them was
to go back and mark them all over with a big black marker, which made
it impossible to check whether the canvassing board had really just
marked over the ballot or had put a new mark on the ballot.
JUSTICE SCALIA: Mr. Boies, can I come back to this discrepancy between
Palm Beach and Broward County? I'm reading from footnote 16 of the Florida
Supreme Court's opinion.
On November 9, 2000, a manual recount was requested on behalf of Vice
President Gore in four counties: Miami-Dade, Broward, Palm Beach, and
Volusia. Broward County and Volusia County timely completed a manual
recount. It is undisputed that the results of the manual recounts in
Volusia County and Broward County were included in the statewide certifications.
MR. BOIES: Yes, Your Honor.
JUSTICE SCALIA: And those statewide certifications the Supreme Court
ordered to be accepted. So it is -- the Supreme Court, while applying
a standard of supposedly de novo review of the certifications, is requiring
the circuit court to accept both Broward County, which does one thing
with dimpled ballots, and Palm Beach County, which does something clearly
different.
MR. BOIES: Your Honor, the de novo review is in the contest phase. In
neither Volusia County nor Broward County was a contest filed. What
the Supreme Court holds is that you've got de novo review in a contest.
A contest relates to specific ballots that are contested. The ballots
in Broward and Volusia were not contested by any party.
JUSTICE SCALIA: But the determination that the circuit court has 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 coUnited.
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.
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The
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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 coUnited 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 coUnited
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 coUnited.
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 undercoUnited. 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 coUnited or not coUnited 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.
Click here for closing arguments
by Ted Olson, lawyer for Texas Gov. George W. Bush.
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