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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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MR.
KLOCK: Mr. Chief Justice, and may it please the court. If I could start
by addressing a question of Justice Souter with respect to the standards.
One-sixty-six does have time limits. The time limit of 166 is set by the
certification, which is seven days after the election. The time of the
contest, there are time limits there as well. You have 10 days to file
a complaint, 10 days to file an answer. And in the context of a presidential
election, you then, of course, have the December 12th deadline. So therefore,
there are time constraints that are there.
JUSTICE SCALIA: Which is federal, not state. And occurs in the safe harbor
statute --
MR. KLOCK: Yes, but --
JUSTICE SCALIA: -- or as a result of the safe harbor statute.
MR. KLOCK: Yes, Your Honor, but this court, in its opinion that it handed
down in the initial Harris case, pointed out that it was clear that
there was a desire and a wish by the legislature to preserve the safe
harbor.
JUSTICE SCALIA: Oh there's no -- we thought the Florida court accepted
that too in its current opinion.
MR. KLOCK: They did say that exactly, Your Honor.
JUSTICE REHNQUIST: Mr. Klock, will you -- you referred to the first
Harris case. I think we think of it as the first Bush versus Gore case.
You're talking about the same?
MR. KLOCK: Yes, Your Honor.
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JUSTICE SOUTER: Mr. Klock, will you address Justice Breyer's question
of a moment ago? If there were to be a uniform standard laid down, I
suppose, at this point, by the Leon County Circuit Court, or in any
other valid way, in your judgment, what should the substantive standard
be?
MR. KLOCK: I'll try to answer that question. You would think -- I would
-- you would start, I would believe, with the requirements that the
voter has when they go into the booth. That would be a standard to start
with. The voter is told in the polling place and then when they walk
into the booth that what you are supposed to do with respect to the
punch cards is put the ballot in, punch your selections, take the ballot
out, and make sure there are no hanging pieces of paper attached to
it.
The whole issue of what constitutes a legal vote, which the Democrats
make much ado about, presumes that it's a legal vote no matter what
you do with the card. And presumably you could take the card out of
the polling place and not stick it in the box, and they would consider
that to be a legal vote. The fact is, is that a legal vote, at the very
basics, has to at least be following the instructions that you are given
and placing the ballot in the box.
JUSTICE SOUTER (?): No, we're asking --
JUSTICE BREYER: (Off mike) -- I think, if it's --
JUSTICE SOUTER (?): No --
JUSTICE BREYER: -- I think it's not what the Florida election law is
at this point, in your opinion, but rather if, under the equal protection
clause -- and I'm drawing on your experience as a person familiar with
elections across the country; you've looked into this --
MR. KLOCK: Yes, sir.
JUSTICE BREYER: -- what would be a fair subsidiary standard applied
uniformly, were it to be applied uniformly across all the counties of
Florida, including Broward, a fair, uniform standard for
undervotes? Remember, Indiana has a statute. Michigan has a statute.
Thirty-three states have a statute where they just say "intent
of voter." But in your opinion, because of the hanging chad, et
cetera, et cetera, what is a fair -- not necessarily Florida law, but
a fair uniform standard?
MR. KLOCK: Without being disrespectful, Your Honor, I think you've answered
the question in terms of phrasing the question. There are any number
of statutory schemes that you could select from, if you were a legislature.
But as a court, I don't think that the Supreme Court of Florida, respectfully,
or any other court can sit down and write the standards that are going
to be applied. It's a legislative --
JUSTICE BREYER: In your opinion, if you were looking for a basically
fair standard, to take one out of a hat, Indiana or Palm Beach 1990,
in your opinion, would be a basically fair one?
MR. KLOCK: If I were to take one out of a hat, Your Honor, if I was
a legislature, what I would do is I would hold that you have to punch
the chad through on a ballot. In those situations where you have a ballot
where there were only indentations in every race, you might then come
up with a different standard.
But the only problem that we have here is created by people who did
not follow instructions.
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JUSTICE BREYER: Okay. Can I ask you a different question on Florida
law?
MR. KLOCK: Yes, sir.
JUSTICE BREYER: And the question on Florida law is simply this. What
the statute -- as I take it, the contest statute lists grounds for contesting.
One of those grounds is rejecting a sufficient number of legal votes
sufficient to place the election in doubt. And then the circuit judge
is given the power to investigate that allegation, just to look into
it.
MR. KLOCK: Yes --
JUSTICE BREYER: So why would it be illegal under Florida law to have
a recount just to investigate whether this allegation is or is not so?
MR. KLOCK: The justice's question assumes that they are legal votes.
The only --
JUSTICE BREYER: There might be some in there that are legal under anybody's
standard.
MR. KLOCK: Your Honor, if they are not properly -- if the ballot is
not properly executed, it's not a legal vote. The only case in Florida
that even touches upon this, in terms of a machine ballot, is the Hogan
(sp) case from the 4th District Court of Appeal. In the 4th District
Court of Appeal, that candidate lost by three votes, and he went during
the protest phase to the canvassing board and asked for a manual recount
to be done, and they exercised their discretion and said no. And in
that case there is a discussion; he raised the argument that there were
ballots in there that had hanging chads, and this, that and the other
thing. They would hear none of it. And when
it went up on appeal, it was affirmed. So the fact of the matter is,
is that the only case that we have that deals with this handles it in
that fashion. And I would respectfully suggest that a ballot that is
not properly punched is not a legal ballot.
And I think also, sir, if you go through an analysis of the vice president's
arguments, and supporting what the Supreme Court does, there is sort
of an "omelet" that is created by going and picking through
different statutes. For instance, the clear intent standard comes from
a statute that deals with a damaged ballot where you have to create
-- to put through the machine a substitute ballot. And there are very
clear directions as to what to do to preserve the integrity of the ballot.
In the Beckstrom case, which you will no doubt hear much about as the
argument proceeds, dealt with that kind of situation. There was a manual
recount there; the court did not pass on the propriety of it. The issue
was if the election officials took ballots and marked over the ballots
-- instead of creating a separate substitute ballot, they took that
ballot and marked it over so it could go through an optical scanner,
which the court found to be gross negligence -- whether they would discount
the votes. That was the issue that was present there.
So, I think if you look through Florida law, it is relatively clear
that there is no basis whatsoever to be able to (find it's not ? ) the
machine.
JUSTICE STEVENS: May I just ask this question: If you did have a situation
-- I know your position is different -- where there was some uncoUnited
ballots due to a machine malfunction, for example, would it not make
sense to assume that the standard used for damaged ballots would be
the same standard you use in that situation?
MR. KLOCK: I don't think so, sir.
JUSTICE STEVENS: What standard would you use in the situation I proposed
then?
MR. KLOCK: Justice Breyer, the difficulty is that under -- I'm sorry
-- (laughter). That's why they tell you not to do that. The standard
that is in 166 is dealing with the protest phase and it was brought
about in 1988 --
JUSTICE STEVENS: I understand, but my question is if you don't use
that standard, what standard would you use for my hypothetical?
MR. KLOCK: The legislature would have to create one, sir. I don't know
what standard --
JUSTICE SOUTER: You're saying that they can't interpret a statute in
which there is no exclusive definition.
MR. KLOCK: What I'm saying is --
JUSTICE SOUTER: They have to throw their hands up.
MR. KLOCK: No. Justice Breyer, what I'm saying is that --
JUSTICE SOUTER: I'm Justice Souter. You've got to cut that out. (Laughter.)
MR. KLOCK: I will now give up. What I'm saying, sir, is this: that you
cannot be in the situation of using the word interpret to explain anything
that a court does. The word interpret cannot carry that much baggage.
JUSTICE SOUTER: But you go to the opposite extreme and say, it seems
to me, that they can't look, as Justice Stevens suggested, to a statute
which deals with a -- in a certainly analogous subject at a near stage.
And it seems to me that you, in effect, go to the opposite extreme that
you're excoriating the Florida Supreme Court for and say they can't
interpret at all.
MR. KLOCK: I think what the Florida Supreme Court should do in that
instance is note the very tight restrictions that exist under the protest
phase. They require that you find voter intent with respect to a damaged
ballot. They also vest it in the canvassing board, and the canvassing
board is composed of a certain -- a defined group of officials: a county
judge, the elections supervisor, the chairman of the county commission.
It is very limited.
JUSTICE SOUTER: But that means that the court, apparently, cannot define
legal vote.
MR. KLOCK: That's correct.
JUSTICE SCALIA: Mr. Klock, I'm Scalia. (Laughter.)
MR. KLOCK: Yes, sir. I remember that. (Laughter.) It will be hard to
forget. (Laughter.)
JUSTICE SCALIA: Correct me if I'm wrong, but I had thought that although
you don't take into account improperly marked ballots for purposes of
determining whether there will be a manual recount, I had thought that
when there is a manual recount for some other reason, and you come across
ballots of this sort, that you can count them; that for that purpose
you can decide, "Oh, lookit. There's a hanging chad, the machine
didn't count it. It's clear what the intent of the voter are. We'll
count it." Is that not correct?
MR. KLOCK: Yes. Justice Scalia, that is correct.
JUSTICE SCALIA: Okay.
MR. KLOCK: If you have a situation where --
JUSTICE SCALIA: It's correct to use the intent-of-the-voter standard
in that situation?
MR. KLOCK: Pardon me, sir?
JUSTICE SCALIA: It's correct that you use the intent-of-the- voter situation
in that -- standard -- in that situation? That's what I understood the
answer --
MR. KLOCK: It is correct that that statute provides that. I think that
that statute could -- there could be problems under it, but that statute
was designed for a very limited situation where there was a problem
with the mechanism of voting. It was not designed to handle voter error.
And that is absolutely clear, because otherwise, Your Honor, what would
occur is the following; that in every election you had that was close,
you would have an automatic recount, and that irrespective of what the
canvassing board does, just load all the ballots together and put them
on a truck and send them to Tallahassee, because if there is no standard
whatsoever and in any election contest that you're unhappy with the
election, you can send the ballots to Tallahassee, then you have a probable
that is created that would not exist under 166.
JUSTICE REHNQUIST: Thank you, Mr. Klock.
MR. KLOCK: Thank you.
UP NEXT: Oral arguments by David Boies, lawyer for Vice President
Gore.
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