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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
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Nov. 30, 2000:
Florida
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Nov. 29, 2000:
The ongoing Florida
legal battles.
Nov. 28, 2000:
The campaigns file briefs
for the Supreme Court hearing.
Nov. 28, 2000:
Regional
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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
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Browse the NewsHour coverage of Politics
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JUSTICE REHNQUIST: Very well, Mr. Olson. Mr. Klock, we'll
hear from you.
MR. KLOCK: Mr. Chief Justice, and may it please the court, our argument
is simply addressed to issues having to do with Florida law, and the
point being raised by the secretary is this: that the law in the state
of Florida on November 7th was changed by the Supreme Court of Florida's
on November 21. The secretary is not contesting the right of the Florida
Supreme Court to change the law of Florida, is simply pointing out --
she is simply pointing out that the law did change.
JUSTICE KENNEDY: Well, does the secretary maintain that in some instances
she has a discretion that a court does not, or can a court do whatever
she might do, under EFloridaF law?
MR. KLOCK: Under Florida law, she has certain discretion that I think
a court probably does not have in the protest period, Justice Kennedy,
and that would be that she had the discretion to decide whether or not
returns could be permitted after that seventh day.
And indeed, that's based on two things that we have in the record; one
is an opinion that was issued by the Division of Elections that talks
about the circumstances in which the secretary would exercise discretion,
and the second is the letter that the secretary sent to the three or
four canvassing boards that requested an extension of time after the
14th deadline had passed. She sent a letter out; she said please indicate
to me whether or not you intend to file returns after the deadline,
and if you do, what the reasons are. She collected a set of criteria,
she applied the criteria, and then sent a letter back.
And what she did, Justice Kennedy, in the case of the Division's letter
-- the opinion, of which, of course, is binding, under Florida law,
on election officials who receive them -- she -- the Division had said
that there were certain circumstances, such as acts of God, hurricanes,
and that kind of thing, where the discretion would be exercised. When
she came up with her additional reasons for considering whether or not
she would exercise her discretion, she indicated a number of them, which
are also contained in the record; it's at the Joint Appendix at 21.
She indicated where there was a result of voter fraud, where there's
a substantial --
JUSTICE STEVENS: She said she "would" exercise discretion.
Did she say she "would have to" exercise her discretion in
those conditions?
MR. KLOCK: I think she would have to exercise her discretion.
JUSTICE STEVENS: The court could compel her to?
MR. KLOCK: Yes, sir.
JUSTICE STEVENS: Do you think that was clear before the opinion of the
supreme court in this case?
MR. KLOCK: Yes, sir.
JUSTICE STEVENS: Let me just ask one general question for your comment
on whether it's a change in the law. To what extent, in your view, did
the Supreme Court of Florida consider itself bound by either prior precedent
or the constitution of the state, which preexisted?
MR. KLOCK: In terms of handing down this decision?
JUSTICE STEVENS: In terms of the particular result it reached in this
case.
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MR. KLOCK: I believe the Supreme Court of Florida was looking at its
law in terms of articulating the law that it wanted to have then and
on a going-forward basis. I mean, what it did -- and, obviously, since
it's the chief court of the state, it has the right to do whatever it
wishes to do with respect to Florida law, only bound by whatever separation
of powers there --
JUSTICE STEVENS: Do you think they thought their decision was dictated
either by prior precedent or by the constitution of the state?
MR. KLOCK: I don't -- Your Honor, I don't know whether they thought
that or not, but that's not what the opinion says. As a matter of fact,
the opinion is pretty clear. They start out by talking about statutory
construction, and they hinge everything on the use of the word "interpret",
and then they sort of turned the word "interpret" to a use
that it's not intended to be.
But then, when they get to the point of designing the rule of law they're
going to go forward on, they don't talk about interpreting the statute,
they then go and base it on principles of equity and the Florida constitution.
And indeed, what they end up with, Your Honor, is this statement with
respect to the discretion that the secretary is left with, and that
is this -- and it's on 35 of the Joint Appendix:
"We conclude that consistent with Florida's election scheme, the
secretary may reject a canvassing board's amended returns only if the
returns are submitted so late that their inclusion will preclude a candidate
from contesting certification, or preclude Florida voters from participating
fully in the federal electoral process."
Now, Your Honor, there's no way --
JUSTICE STEVENS: No, I understand. Your position is that was entirely
new.
MR. KLOCK: Yes, sir.
JUSTICE STEVENS: And I'm just wondering if therefore, your
submission is that it was not dictated by the constitution or by prior
precedent?
MR. KLOCK: No, Your Honor, it --
JUSTICE REHNQUIST: Well I thought you said a moment ago that the court
-- the Florida court did rely on their Florida constitution. There's
a section of their opinion devoted to that.
MR. KLOCK: Your Honor, in devising their remedy, they refer to the Florida
constitution. But the issue that we're here on, as I understand it,
sir, is whether or not the law changed. There's no question that they
have a right to do what they did.
The only difference is whether --
JUSTICE REHNQUIST: Well, I think perhaps another statement of the issue
is, to what extent did the Florida Supreme Court, in construing this
statute, rely on more general provisions of the Florida Constitution,
which they cited in their opinion?
MR. KLOCK: I think they did rely, in creating the remedy, on the Florida
Constitution. I believe they created a right that had not previously
been seen there, which they have a right to do.
But Mr. Chief Justice, the issue again is whether or not the law that
they articulated on November 21 is different than the law that existed
on November 7th and how the secretary of state, in exercising her discretion,
was to divine the standard that would be established on November 21.
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JUSTICE SCALIA: Your position is, so long as it's different, it violates
Section 5 and therefore we have a right to step in?
MR. KLOCK: Well, Justice Scalia, we have not addressed the federal issues,
because, I mean, we're in a situation where you have --
JUSTICE SCALIA: Well, this is a federal court.
MR. KLOCK: I understand that --
JUSTICE SCALIA: What are you here for if you're not addressing the --
(laughter) --
MR. KLOCK: (Laughs.) I apologize. But we have the secretary of state
here, we have the attorney general here, and the legislature has filed
by amicus. And of course, the state has not appeared, so it's a little
unusual.
We haven't addressed those issues, but to answer your question, yes,
sir.
JUSTICE BREYER: Can you tell me, on -- when this petition was filed
here, the secretary had not certified anybody the winner --
MR. KLOCK: Well --
JUSTICE BREYER: -- and now the secretary has certified a winner. And
therefore, I guess, whether we win -- whether your side, the side you're
supporting, wins or loses, it doesn't change that. And I guess that's
moot.
MR. KLOCK: Well --
JUSTICE BREYER: But my question is, is there any respect in which this
really makes a difference to this case?
How? I'm thinking, if it does make a difference in numbers of vote,
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?
MR. 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 linked to --
JUSTICE BREYER: But 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 14th or 18th instead of November 26th. 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 could predict now as opposed
to speculating?
MR. 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 BREYER: Fine.
MR. KLOCK: But --
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JUSTICE BREYER: Then this case has 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,
is this 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?
MR. KLOCK: It will made a difference to the outcome of the election
because there is an ongoing contest which is interrelated and it involves
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's 19 days for the protest and 16 days
for the contest.
JUSTICE SCALIA: Well, it's too late to -- it's too late to lengthen
the time for the contest. I mean, to the extent that they've shortened
the contest time, you know, that's water over the dam by now, isn't
it?
MR. KLOCK: Yes, Justice Scalia, but the issue here --
JUSTICE SCALIA: But it --
MR. KLOCK: I'm sorry.
JUSTICE 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?
MR. 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.
The record shows very clearly that there is no dispute that there were
any problems with voting machines or any of the tabulation problems
with voting machines. It was simply, when they went through the process
of what is, Justice Ginsburg, a discretionary right to a manual recount,
not a mandatory one, when they went into that and did the test, each
of those canvassing boards did not find any problem with a mechanical
problem; it was simply a problem in terms of voter error.
JUSTICE SCALIA: The secretary took -- never mind.
MR. KLOCK: Thank you.
JUSTICE REHNQUIST: Thank you, Mr. Klock. Mr. Hancock, we'll hear from
you.
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