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Supreme Court Hearing:
Gov. Bush arguments
Florida Sec. of State
Harris arguments
Florida Atty. General Butterworth arguments
Vice President Gore arguments
Final Bush arguments
Online NewsHour Special Report:
Election 2000
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.
Nov. 24, 2000:
Shields
and Gigot discuss the political landscape in Florida.
Nov. 22, 2000:
Legal
Experts discuss the Florida Supreme Court ruling.
Nov. 22, 2000:
Shields
& Gigot assess the political ramifications of the Florida
Supreme Court decision.
Nov. 21, 2000:
Editorial
writers from across the country discuss Florida.
Nov. 20, 2000:
The
Florida Supreme Court hearing.
Nov. 20, 2000:
Journalists
Brooks, Broder and Oliphant discuss Florida.
Nov. 17, 2000:
The Florida Supreme Court halts
the vote certification.
Nov. 16, 2000:
Four
senators discuss this year's election.
Nov. 15, 2000:
Foreign
nations and markets react to the U.S. election deadlock.
Nov. 15, 2000:
Cultural
scholars assess the election deadlock.
Browse the NewsHour coverage of Politics
& Campaigns and Law.
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MR. HANCOCK: Mr. Chief Justice, and may it please the
court: In accordance with Article II of the United States Constitution,
the Florida legislature has directed the manner of selecting presidential
electors in Florida. That manner is pursuant to a popular vote that's
implemented pursuant to the general election laws of the state of Florida.
JUSTICE O'CONNOR: I guess Article II permits the legislature in general
to make a choice, it could itself select the electors.
MR. HANCOCK: Yes, Justice O'Connor, we agree with that. In implementing
the election law, each branch of the Florida government plays a role.
For example, the judiciary -- the executive branch of our government
has not found itself bound by the technical -- hypertechnical requirements
of the election law. An example of that is that the executive branch
has implemented a rule, not a law, but a rule that allows absentee ballots
from overseas military voters to be received up to 10 days after the
close of the polls.
Under the law of the state of Florida, all absentee ballots have to
be received by the time the polls close on Election Day.
JUSTICE KENNEDY: In your brief, you say you conclude that the Florida
Supreme Court, like -- I think it's at page 12 -- like any state court,
exercises inherent equitable powers to remedy a threat to fundamental
constitutional rights. And it rewrote the certification deadlines according
to that power, did it not?
MR. HANCOCK: The only -- yes, Justice Kennedy. The only equitable power
exercised by the court was setting the deadline.
JUSTICE 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?
MR. HANCOCK: No, the laws were enacted well before the election. What
happened was --
JUSTICE KENNEDY: Of course the Constitution is there before the election,
the due process clause before the election. But what we're talking about
is having laws of sufficient specificity and stability that people can
rely on them in advance and not have them changed after the fact. And
your briefs make it very clear that they exercised their equitable powers
to remedy a threat to fundamental constitutional rights and changed
the deadline accordingly. It seems to me that's no -- it's an enviable
standard, something we probably all agreed with in the end, but so far
as the requisite specificity to satisfy 3 USC Section 5, I just don't
see that it's there.
MR. HANCOCK: The court had to do something, Justice Kennedy. It was
faced with conflicts in Florida law. They had conflicting opinions from
the Florida attorney general as to the meaning of the law and the secretary
of state as to the meaning of the law. As a result --
JUSTICE KENNEDY: Maybe it had to do something, but did it comply with
3 USC Section 5?
MR. HANCOCK: I submit, Justice Kennedy, that 3 USC Section 5 doesn't
require the state to do anything. It merely says --
JUSTICE KENNEDY: Did it comply with that part of 3 USC Section 5 that
requires that laws be enacted and in place prior to the election in
order to get the safe harbor?
MR. HANCOCK: Yes, it did. The laws were in place before the election,
and those laws granted to the judiciary the --
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dramatic change |
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JUSTICE O'CONNOR: Well, but certainly the date changed. That is a dramatic
change. The date for certification. Right?
MR. HANCOCK: Yes.
JUSTICE O'CONNOR: And it was done by the court.
MR. HANCOCK: Yes, it was done --
JUSTICE 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.
MR. HANCOCK: 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 the
state, which the supreme court ultimately concluded to be erroneous.
JUSTICE SCALIA: Yes, and that advice was -- and this was really the
beginning of all of the problem -- her advice was that the provision
providing for recounts, manual recounts, not requiring them, but giving
them as one of the options, only came into play when there was some
defect in the machinery and it was not available for voter error, that
is for voters who didn't punch the cards the way they were supposed
to. And the attorney -- your office came out with the opposite conclusion.
The secretary's brief contends that that had always been the rule in
Florida. Is that the case? Do you know of any -- any other elections
in Florida in which recounts were conducted, manual recounts, because
of allegation that some voters did not punch the cards the way they
should have, therefore -- no problem with the machinery, it's working
fine, but, you know, there were -- what? -- pregnant chads, hanging
chads, so forth?
MR. HANCOCK: No, Justice --
JUSTICE SCALIA: Did it ever happen before --
MR. HANCOCK: I'm not aware of it ever happening before. But I can say
that the Supreme Court of Florida, for 100 years, has put a duty on
election officials to discern the intent of the voter. And while the
secretary of the state refers to it as "voter error," when
the ballot is punched, that's -- under the laws of the state of Florida,
as interpreted by the Supreme Court, that voter has cast a ballot, even
if the chad did not completely fall off the ballot.
JUSTICE KENNEDY: Is it your position that any interpretation the Supreme
Court of Florida makes to implement the will of the people is never
a new law?
MR. HANCOCK: That -- the Supreme -- yes -- I can't say "ever",
but I'd say on the case before the court, all that was before the court
was ordinary statutory construction which must be -- the result of it,
whether this court would agree with it or disagree with it, must be
respected by this court. That's the very foundation of
federalism.
JUSTICE GINSBURG: Mr. Hancock, are you relying on the Florida Supreme
Court statement, at least twice in its opinion -- now I looked at the
page to which Mr. Klock referred me, 37-A; it says for the second time
that section -- the section governing manual recounts appears to conflict
with the sections that set a deadline. And it's reconciling that conflict.
MR. HANCOCK: Yes, that's --
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mission |
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JUSTICE GINSBURG: Whether it was wrong or right, that's what it said
its mission was, and that's what it did.
MR. HANCOCK: Yes. In -- both in words and in operation, the statutes
could not work together, because of the time for requesting manual recount,
the extent of the job of manual recounting --
JUSTICE SCALIA: What is the section that requires manual recounts?
MR. HANCOCK: It's 102. -- well, 102.166 authorizes manual recounts.
JUSTICE SCALIA: That's different from requiring.
MR. HANCOCK: Yes, but once it starts, Justice Scalia, once it's authorized,
if the initial sample recount shows an error that might affect the outcome
of the election --
JUSTICE SCALIA: Then --
MR. HANCOCK: -- the board is then required to, among other things, conduct
a full manual recount.
JUSTICE SCALIA: No, it's required to do one of three things --
MR. HANCOCK: Right.
JUSTICE SCALIA: -- one of which could be a manual recount.
MR. HANCOCK: Yes.
JUSTICE SCALIA: But it could decide to do one of the other two instead.
MR. HANCOCK: Yes. The problem faced by the counties --
JUSTICE SCALIA: So there is -- I mean, the court says that there's a
requirement of a manual recount, but I don't see anything in the text
of the statute that requires a manual recount.
MR. HANCOCK: The statute requires that the election officials attempt
to discern the cause of the error. Here the cause of the error was that
-- in these counties was that the machines were not able to read ballots.
Ten thousand ballots in Palm Beach County the machine did not read as
including a vote for president. That was the issue, so that the solution
to that was not -- the machines, even when they're operating properly,
would not read these ballots. So the -- what was left to the county
canvassing boards, then, was to do the full manual recount. And the
language of that statute, again, says they shall do a full manual recount
in those circumstances.
JUSTICE SCALIA: Mr. Hancock --
JUSTICE O'CONNOR: Well, it says that the board may authorize the manual
recount. It doesn't require it.
MR. HANCOCK: No, that --
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| Counting
teams |
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JUSTICE O'CONNOR: But if it does authorize it, then it tells it how
to do it and says they shall appoint as many counting teams as necessary
-- presumably as necessary to do it within the time limit.
MR. HANCOCK: Yes, Justice O'Connor. But again, these -- under the law,
these requests can be made up to the time of canvassing. That means
up to six or seven days. And also, even in -- the number of ballots
at issue here are between 650,000 in Palm Beach County and also 900,000
-- up to 900,000 in Broward County. It's --
JUSTICE SCALIA: Well, if that is a statutory problem, the court's resolution
didn't really solve it, did it? Because even with her extended time
period, the same statutory problem exists; there still isn't enough
time, under the extended deadlines, for some of these counties that
have an enormous number of votes to conduct a manual recount. Isn't
that right?
MR. HANCOCK: Well, let me --
JUSTICE SCALIA: I mean, to resolve a supposed conflict in the statute
in a manner that leaves in place the same problem that existed before
seems to me not a real resolution of the statutory problem.
MR. HANCOCK: Well, the supreme court tried to blend it all together
to make it work, Justice Scalia. And again, it came up with a solution
it -- the secretary of state's argument here is based on -- the secretary
of state herself recognized that she had the discretion under Florida
law to accept returns filed outside of that seven-day deadline. A breakdown
of the machines, in her view, would justify late returns. A failure
of the machines to read ballots would not justify late-filed returns.
The supreme court said that the legal standard she was using was wrong.
That -- we submit that that decision of the supreme court is the law
in the state of Florida --
JUSTICE REHNQUIST: I'm going to extend your time two minutes, Mr. Hancock,
because you haven't had a chance to say a lot yet.
MR. HANCOCK: Well, I will -- I don't need the extension time, Your
Honor. If there are no further questions, I will stop. Thank you.
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