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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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DALE BOSLEY (Marshal): 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.
(Sounds gavel.)
JUSTICE REHNQUIST: We'll hear argument this morning on No. 00- 836,
George W. Bush versus the Palm Beach County Canvassing Board. Mr. Olson.
THEODORE OLSON (Attorney for George W. Bush): And may it please the
court. Two weeks after the November 7th 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 7th.
These laws have been formulated by the Florida legislature pursuant
to an express delegation of authority to it by the United States Constitution.
The election code that the Florida legislature Developed, conformed
to Title 3, Section 5 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 5 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?
MR. OLSON: We do, Justice O'Connor. It is a safe harbor, but it's more
than that. And Section 5 of Title 3 needs to be construed in connection
with the history that brought it forth --
JUSTICE O'CONNOR: Yes, but I would have thought it was a section designed
in the case of some election contest 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 be independently enforceable.
MR. OLSON: That's why I've mentioned the context in which that section
was adopted. In light of the extreme controversy that was faced by this
country as a result of the 1876 election -- and as this court knows,
that election was very close, it led to controversy, contests, discord
-- Congress was very much concerned about the possibility of that happening
again. And one of the --
JUSTICE ANTHONY KENNEDY: Yes, but what they did was -- and it's typical
of grant-in-aid programs -- they said if you run a clean shop down there,
we'll give you a bonus, and if you don't, well, you take your chances
with everybody else.
MR. OLSON: Justice Kennedy, I submit that it is much like a compact
that Congress was offering in the form of Section 5: Yes, if you do
these things, certain things will happen.
But among these things -- what Congress wanted to accomplish with
Section 5 is not only the -- to provide the benefit to the states, but
to provide the benefit to the United States of the states accepting
that implicit proposal.
JUSTICE KENNEDY: Well, what is there in the opinion of the Supreme Court
of Florida that indicates that it relied on this federal statute in
reasoning -- in the reasoning for its decision and in its judgment?
MR. OLSON: Well, I think the fact is that it did not. What it did was
it disregarded the compact. When the state adopted a code of ethics
-- or a code of election procedures that govern the election and the
determination of disputes pursuant to the election, it brought itself
into that safe harbor, and guaranteed to the voters and the candidates
in that state, that the controversy and turmoil that infected this country
after the 1876 --
JUSTICE KENNEDY: Well, but we're looking for a federal issue. And I
thought that you might have argued that the secretary of state was instructed
by the Supreme Court not to jeopardize the state's chances. And it cited
3 U.S.C. Sections 1 through 10. And so, if the state Supreme Court relied
on a federal issue or a federal background principle and got it wrong,
then you can be here.
MR. OLSON: Well, I certainly agree that it mentioned those provisions.
I was simply saying that it blew past the important provisions of Section
5 and the benefits that Section 5 gives to the states, to the voters
in that state, and to the people running for office in that state.
That is to say that if the rules are complied with, if disputes are
resolved according to the rules that are set forth, then not only will
the electors chosen by the voters in that state be given conclusive
effect at the time they are coUnited by Congress, but we will not have
the controversy, dispute, and chaos that's been taking place in Florida
since then.
JUSTICE ANTONIN SCALIA: Mr. Olson, suppose a less -- a less controversial
federal benefit scheme, let's say the scheme that says states can get
highway funds if they -- if they hold their highway speeds to a certain
level -- all right? -- and suppose you have a state supreme court that,
in your view, unreasonably interprets a state statute as not holding
a highway speed to the level required in order to get the benefit of
that safe harbor, would you think that that raises a federal question
and that you could appeal the state court decision here because it deprived
the state of the benefit of the highway funds?
MR. OLSON: No, I don't think so. I think this --
JUSTICE SCALIA: Then why is this any different?
MR. OLSON: This is a great deal different because this is -- first of
all, Article II of the Constitution, which vests authority to establish
the rules exclusively in the legislatures of the state, tie in with
Section 5. Secondly, as this has court has stated --
JUSTICE SCALIA: Well, let's just talk about Section 5. I mean, this
-- the constitutional question is another one. Why is Section 5 in that
regard any different from the highway funding?
MR. OLSON: I think it -- I think it can't be divorced from Article II
of the Constitution because it's a part of a plan for the vesting in
the legislatures of the state, and Section 5 implements Article II in
the sense that it provides a benefit not just to the state, but to the
voters and candidates.
I assume that if we worked long enough with Justice Scalia's hypothetical,
we could find a case where a court adjudicated with reference to the
federal principle and got the federal principle wrong Indiana v. Brand,
that kind of thing. Did that happen here?
MR. OLSON: Well, I think that the state did not pay -- the state supreme
court did not pay much attention to the federal statute. It was obviously
aware of it. It did get the federal --
JUSTICE KENNEDY: Well, then there's no federal -- constitutional issue
here.
MR. OLSON: Well, there is a federal --
JUSTICE KENNEDY: Pardon me -- statutory.
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legislature and Supreme Court |
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MR. OLSON: Well, we believe that there is, Justice Kennedy, because
although the state recognized it, it blew right past it. The state legislature
adopted the code that the Section 5 of Article III -- of Title 3 invited
it to do. The state supreme court, which had no right under the Constitution
-- but I can't divorce the constitutional provision from Section 5 --
then overturned the plan that the state enacted through its legislature
to make sure that what happened down in Florida was not going to happen.
And so what the state supreme court did, knowing full well that these
provisions existed, overturned the carefully enacted plan by Florida
--
CHIEF JUSTICE WILLIAM REHNQUIST: Mr. Olson, do you think that Congress,
when it passed U.S. Code, intended that there would be any judicial
involvement with it? I mean, it seems to me it can just as easily be
read as a direction to Congress saying what we're going to do when these
electoral votes are presented to us for counting.
MR. OLSON: I think that it wasn't -- directed to Congress, but it seems
to me that in the context in which it was adopted and the promise that
it afforded, that the conclusive effect would be given to the state
selection of electors that is a somewhat empty remedy, and it doesn't
accomplish Congress's objectives if it cannot be enforced when an agency
of the state government steps in, as the Florida Supreme Court did here,
and overturned the plan by which the Florida legislature carefully set
forth a program so that disputes could be resolved, then we wouldn't
have the controversy, conflict, and chaos that we submit exists today
in Florida.
JUSTICE JOHN PAUL STEVENS: Mr. Olson, your submission is based on the
premise that the Florida court overturned something that the statute
had done. Is it not arguable at least that all they did was fill gaps
that had not been addressed before?
MR. OLSON: Justice Stevens, I don't think that in this case that's even
remotely arguable. What the state Supreme Court did is take a set of
timetables; a set of provisions that --
JUSTICE STEVENS: Yes, and the first one was the mandatory -- is it your
view still that the "shall" date controls in all respect?
MR. OLSON: No, not necessarily. There is -- the two provisions are
essentially --
JUSTICE KENNEDY: 111 and 112.
MR. OLSON: -- 102.111, and 102.112.
JUSTICE STEVENS: Right.
MR. OLSON: 111 contains the "shall" date; 102 contains the
"may" date.
JUSTICE STEVENS: Correct.
MR. OLSON: Both of those statutes -- both of those provisions
say that the returns must be --
JUSTICE STEVENS: Right.
MR. OLSON: -- or shall be filed by a certain deadline. The "shall"
and the "may" provisions simply relate to the possible remedy.
We submit that, under either interpretation, the secretary of state
of Florida either must or shall ignore those returns or may set those
aside in her discretion. Either way --
JUSTICE STEVENS: Does that mean if there were an act of God that prevented
the returns from being filed, that she would have discretion either
to accept or reject the returns?
MR. OLSON: Yes, I believe --
JUSTICE STEVENS: She would have the discretion.
MR. OLSON: That --
JUSTICE STEVENS: Would she be compelled in that event to accept the
returns?
MR. OLSON: I don't think so. She took the position --
JUSTICE STEVENS: She has the total -- total discretion either to accept
or reject.
MR. OLSON: That's -- that's --
JUSTICE STEVENS: Is there any circumstance in which she would be compelled
to accept a late return?
MR. OLSON: I don't know of any. I haven't thought of any, Justice Stevens.
JUSTICE STEVENS: Well, you're arguing, in effect, that it's a mandatory
deadline. I wonder if you really mean it's mandatory.
MR. OLSON: Well, we -- the problem is that if you -- what we're -- what
we're saying is that either it's mandatory, in which case she could
not accept them --
JUSTICE STEVENS: But you don't know whether it's mandatory or not?
MR. OLSON: Well, the EFloridaF Supreme Court and the -- what -- what
-- what the Circuit Court did in that case is said that it wasn't --
and we'll accept this for purposes of this argument -- that it wasn't
all together mandatory --
JUSTICE STEVENS: Yeah, but one of the things that's of interest to me
is the extent to which you say there was a change in the law. It seems
to me that in order to answer that question, you have to know what your
view of the law was before this all happened.
MR. OLSON: Well, I think that we can answer that this way; is that whether
it was "shall ignore" or "may ignore", it was not
"must accept".
JUSTICE STEVENS: Under any circumstance it was not "must"?
MR. OLSON: No, under no circumstances is it -- was it "must
accept". Now the second --
JUSTICE STEVENS: Even an act of God or fraud?
MR. OLSON: I don't believe so, Justice Stevens.
JUSTICE STEVENS: Okay.
JUSTICE STEPHEN BREYER: Is it the law in Florida, like in -- as in most
states, I mean, the federal government, that when an official has discretion
-- may accept or may not accept -- that has to be exercised within the
limits of reason?
MR. OLSON: Yes --
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circumstances |
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JUSTICE BREYER: Well, then isn't it possible that when the court says
she must accept under certain circumstances, what they mean is outside
those circumstances, given the circumstances here, it would be unreasonable
to refuse?
MR. OLSON: Well, what the court did was so constrain those circumstances
virtually to make them non-existent and --
JUSTICE BREYER: All right, so then what you're arguing about is a determination
by the state court of Florida as to what the circumstances are, under
state law, where the action of a state official would or would not be
reasonable.
MR. OLSON: Well, I think that it -- yes, but I think it has to be looked
at in the context in which that was done. When the state Supreme Court
so constrained and says in its opinion she'll accept these late returns
until 5:00 p.m. on November 26th, and in the context, there was no discretion
left for the secretary of state at all, also --
JUSTICE RUTH BADER GINSBURG: Mr. Olson, may I ask you, because you've
been skipping over what I thought was a key piece of the Florida legislation
-- the Florida Supreme Court said there's the deadline, and that conflicts
with another provision of this law, the provision that says there shall
be, under certain circumstances, recounts. And then there's a rather
detailed description of the process that's necessary. The time line
for when you can ask a recount is on the sixth day --
MR. OLSON: Up to.
JUSTICE GINSBURG: Yeah, up to. And it would be impossible in a populous
county to in one day do what this statute instructs must be done when
there's a recount. The Florida Supreme Court said its -- right in its
opinion there's 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's a deadline.
So they are trying to reconcile two provisions.
MR. OLSON: The first part of the recount provision to which you are
referring, Justice Ginsburg, says "may" conduct a recount.
Under certain circumstances, after the sampling part of that process
is taken, if it's taken, in the county canvassing board's discretion,
then under certain circumstances it is supposed to go forward with a
more fulsome process. But the legislature, being fully aware of the
recount provisions and the importance of the -- this ties in with the
protest period for the election, which overlaps the recount provisions,
and the contest provisions for the election, and the fact that all of
this has to be done in the context of a presidential election.
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 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. I mean, in case after case,
we have said we owe the highest respect to what the state says -- state
supreme court says is the state's law.
MR. OLSON: This is a very unusual situation, Justice Ginsburg, because
it is in the context of a presidential election, and it is in the context
of federal rights. This court has, in the areas in which
we've described in our brief, undertaken to review the meaning and effect
of the state supreme court or a state court decision under certain circumstances.
We submit this is one.
What the Florida --
JUSTICE GINSBURG: But I said -- and even in the very cases that you
site, as I checked them, that we owe the highest to the state court
when it says what the state law is.
MR. OLSON: Yes, but then the court has also said then we go on to see
the extent to which what the state court did, as we cited in the Lindsey
case, for example in the ex post facto context, we go on to see what
the import of that is in connection with the federal right.
I would emphasize that what the Florida Supreme Court did is basically
essentially say we're rewriting the statute, we're changing it.
JUSTICE STEVENS: Did the secretary have any flexibility to accommodate
the statute to the exigencies of the presidential election?
MR. OLSON: Well, the secretary --
JUSTICE STEVENS: The secretary of state.
MR. OLSON: The secretary of state did. It doesn't -- she doesn't much
any more, because what has happened, and I would like to finish that
one point, that the Florida Supreme Court said we are not going to be
bound by technical statutory requirements, or what the supreme court
called "hypertechnical statutory requirements." Instead, we
are going to resort to the will of the people, the will of the electorate,
the will of the voters, so to speak, and we are going to -- because
we can't rewrite the statute, but we are going to partially rewrite
the statute, we are going to resort to our equitable powers.
So what -- and -- and among the things that the court did -- and there
are a range of them, as I have indicated -- they took away the discretion
of the secretary and instructed her to accept these manual recount returns
--
JUSTICE STEVENS: Mr. Olson, on the equitable powers, they were doing
that in setting a new deadline. And I don't think you would argue the
case would have been more acceptable if there had been no deadline?
MR. OLSON: No -- no, it wouldn't have been. But what --
JUSTICE STEVENS: And on the fight between "may" and "shall",
they relied on four traditional canons of statutory construction and
not equity at all.
MR. OLSON: They recited four canons of statutory construction, Justice
Stevens. But when they said they used those statutes of construction
-- canons of statutory construction to say that the words "may"
and "shall" mean "shall not", that is not a reasonable
exercise of statutory construction.
I think what the -- it's relatively obvious that what the supreme court
did is exactly what Article -- Section 5 of Article III intends not
to happen -- change the rules after the --
JUSTICE SCALIA: I don't read their opinion that way, Mr. Olson. It seems
to me that the portion of their opinion dealing with statutory construction
ends with the conclusion that the secretary has discretion. The portion
of the opinion employing the canons of construction does not place any
limits upon the secretary's discretion.
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| Accepting
returns |
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MR. OLSON: Well, yes, but -- I agree with that up to a point. But then
it says -- but then it says that she must accept these returns that
are after the deadline --
JUSTICE SCALIA: That was not on the basis of any canons of statutory
construction, that was on the basis of the state's constitution.
MR. OLSON: Well, that's right. But -- but -- so there was both going
on. And what the court was bound and determined to do was to get to
a consequence that the court determined was consistent with the will
of the people, irrespective of what the statute was --
JUSTICE GINSBURG: Mr. Olson, would you agree that when we read a state
court decision, we should read it in the light most favorable to the
integrity of the state supreme court; that if there are two possible
readings, one that would impute to that court injudicial behavior, lack
of integrity, indeed, dishonesty, and the other that would read the
opinion to say we think this court is attempting to construe the state
law.
It may have been wrong. We might have interpreted it differently. But
we are not the arbiters; they are.
MR. OLSON: I would like to answer that in two ways. In the first place,
I don't mean to suggest -- and I hope my words didn't -- that there
was a lack of integrity or any dishonesty by the Florida Supreme Court.
What -- we're saying that it was acting far outside the scope of its
authority in connection with a(n) exercise of power that is vested by
the Constitution of the United States --
JUSTICE GINSBURG: But if it tells us -- if it tells us, "We see
these two provisions in conflict" --
MR. OLSON: But --
JUSTICE GINSBURG: -- they need to be reconciled.
MR. OLSON: Under almost any other circumstances, yes, Justice Ginsburg.
But in this context -- in this context, we're talking about a federal
right, a federal constitutional right, and the rights of individual
citizens under the Constitution. And so, therefore, the court -- this
court has a great responsibility to look --
JUSTICE O'CONNOR: Mr. Olson, I'd like to get focused a little more on
this same area. If it were purely a matter of state law, I suppose we
normally would leave it alone, where the state Supreme Court found it.
And so you probably have to persuade us there is some issue of federal
law here. Otherwise, why are we acting?
MR. OLSON: Yes.
JUSTICE O'CONNOR: And are you relying, in that regard, on Title II?
I mean, would you like to
MR. OLSON : Article --
JUSTICE O'CONNOR: Article II. Would you like to characterize the federal
issue that you think governs this?
MR. OLSON: Well, we are very definitely relying on Article II of the
Constitution. The framers of the Constitution debated long and hard;
it was one of the longest debates that took place during the formation
of the Constitution. Where should this power be lodged: in the federal
legislature, in the state legislature, at the ballot booth, or what?
The one thing that was discussed and rejected by virtually everyone
is that the power to select the manner in which electors would be appointed
would be in that state judiciary. And we quote -
MR./JUSTICE : (Off mike.)
MR. OLSON: In the state judiciary. That was rejected. The notion that
it would be vested in the state judiciary was something that was rejected.
And what the framers decided to do is to vest it in the state legislature
and did -- it invested that authority under Article II, not just in
the state, but in the legislatures.
JUSTICE KENNEDY: The state legislature could vest it in the judiciary,
if it wanted, as I read the McPherson (sp) case. And here they've done
something less. The state judiciary has said, we're going to invoke
the ordinary election procedures which, you know, warts and all, it
involves some interpretation by the courts, and contest proceedings,
et cetera.
MR. OLSON: Well, it is -- yes, it said that, Justice Kennedy, but what
it did was supplant a set of rules, enacted before the election to govern
the election, for a set of rules made up after the election.
JUSTICE DAVID SOUTER: Mr. Olson, let's assume that it did that, for
the sake of argument. I want to go back to the issue that the chief
justice raised a little while ago, and I'd like you to comment on this
line of reasoning. You've got Section 5 -- Congress, in the statute,
seems to have gone to great lengths to provide what to do in the situation
that you are describing -- accepting your view of the case.
Section 5, it says if you do certain things within certain times, the
conclusion that you draw is going to be conclusive upon the Congress.
In Section 15 it sets out, in fact, an elaborate set of contingencies
about what the Congress is supposed to do and can do if there is a dispute
as to whether a given set of procedures in the state have conformed
to Section 5. Section 15 refers to regularity, it refers to legality
and illegality.
And it looks to me as though, at least at this stage of the proceedings,
Congress has said if there is a question about whether this "if
then" provision in Section 5, construing Article II, has been satisfied,
then this is the decisional tree for the Congress to follow in deciding
what to do about it and in resolving challenges.
And it looks to me as though at this stage of the game, the statute
has committed the determination of the issues that you raise and the
consequences to follow from them to the Congress. Why should the court
-- why should the federal judiciary be interfering in what
seems to be a very carefully thought-out scheme for determining what
happens if you are right?
MR. OLSON: Because I submit that that writes Section 5 essentially out
of existence if an agency of state government -- if a state --
JUSTICE SOUTER: No, it doesn't write it out of existence. It provides
in Section 15 what happens if the state agency does what you says (sic)
it did.
MR. OLSON: If the state agency, if the state legislature, empowered
by Article II of the Constitution, does what it is invited to do by
Section 5, and then another agency of state government, in this case
the state supreme court, comes along and upsets that scheme,
yes, you have ultimate resort to the resolution of the dispute under
Sections 15 of Title 3, but that's precisely --
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Ultimate
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JUDGE SOUTER: Well, you say you have ultimate resort, but that begs
the question. That seems to be precisely the resort that Congress has
provided.
MR. OLSON: Well, I'm not making myself clear, I think, is that the importance
of Section 5 was to invite the state to do things that would the chaos
and the conflict and the controversy and the unsettled situation that
this country faced in 1876.
JUSTICE SCALIA: Mr. Olson, did Section 15 exist when McPherson (sp)
was decided?
MR. OLSON: I don't know, Justice Scalia. I don't know the answer to
that, when it was adopted. I can't recall whether it was a part of the
1887 electoral count statute or not. I can probably answer that in --
JUSTICE SCALIA: That would make a difference, wouldn't it?
MR. OLSON: -- got there, there were dueling slates of electors who were
buying -- there were exchanges and a lot of things that everyone was
felt was very destructive to the --
JUSTICE SOUTER: But Congress had to face the constitutional fact that
under Article II, it could not -- or its understanding was that certainly
that it could not mandate certain state procedures. Article II did say
the legislatures shall decide what they are.
MR. OLSON: Correct.
JUSTICE SOUTER: So the most that Congress could do in providing for
a more orderly resolution of what happened in Hayes-Tilden was to do
what it did in Section 5, and that is to say if you do certain things,
you can depend upon the results, recognizing that the state might not
do those things. And it then provided -- or at least at the present
time it has provided, in Article -- in Section 15 -- that if you don't
do those things, there is a sequence of issues that can be raised to
be decided by the Congress. It -- if Congress wanted this court to get
into the issue at this stage, it seems passing strange to me that despite
all the elaborateness of Section 15, there wouldn't have been some mention
of federal litigation preceding the Section 15 proceeding.
MR. OLSON: I think it's a very important point -- and let me make it
-- that Congress did say if you do these things, certain consequences
will flow from it. Florida did these things. And we
submit that there's a -- the courts are here to protect the benefit
of the bargain that Florida made when it responded to that invitation,
because --
JUSTICE SCALIA: Well, it -- we have to separate your statutory argument
from your constitutional argument. To the extent that you're relying
just on the Constitution, do you think that Congress could, by Section
15, exclude the courts from adjudicating the constitutionality
of what the state has done?
MR. OLSON: No, I don't think so.
JUSTICE SOUTER: But it certainly could express its preference for a
scheme whereby the initial litigation, if you will, at this level, would
take place in the Congress. To acknowledge that is not to say that the
issue is justiciable or that this court has somehow been necessarily
excluded from the process for all time. It is simply to say that the
first line of litigation at the federal level seems, under the statute,
to be Congress and not the court. Isn't that a fair reading of 15?
MR. OLSON: That's not a fair reading of Section 5. And let me answer
this question, and I'd like with the court's permission, to reserve
--
JUSTICE SOUTER: Well, that -- I don't think Section 5 goes to the issue.
MR. OLSON: Well, I --
JUSTICE SOUTER: The question is whether it's a fair reading of Section
15.
MR. OLSON: I don't think that they can be read in isolation. I think
that Section 5 was designed to avoid the problem created by the controversy
and the having to resolve this in Congress, which is exactly what did
happen in 1876, and was a very unsatisfactory situation.
JUSTICE SOUTER: And in 1876, Congress did not have --
MR. OLSON : 1877.
JUSTICE SOUTER: -- the rules --
MR. OLSON: 1877.
JUSTICE SOUTER: Congress did not have the rules, with respect to conclusiveness,
that it now has under Section 5.
MR. OLSON: And that's right. And it put those rules with respect to
conclusive into Section 5. The Florida legislature bought into that
scheme, and now the Florida Supreme Court, which doesn't have any constitutional
authority pursuant to Section 2 to do so, upset that scheme, deprived
Florida of the benefit of doing exactly what Congress wanted to have
happen under Section 5.I would, with the court's permission, reserve
the balance of my time.
JUSTICE REHNQUIST: Very well, Mr. Olson. Mr. Klock, we'll hear
from you.
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