SUPREME COURT: BUSH ARGUMENTS
December 1, 2000

The nine justices of the U.S. Supreme Court heard arguments in a legal challenge of Florida's election recounts by George W. Bush's campaign. Bush lawyer Theodore Olson spoke for a few additional minutes after he and the others lawyers finished their arguments.

 

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. Browse the NewsHour coverage of Politics & Campaigns and Law.     Especially for Students: The ongoing legal battles of election 2000.   U.S. Supreme Court	JUSTICE REHNQUIST: Mr. Olson, you have four minutes remaining. MR. OLSON: Thank you, Mr. Chief Justice. May it please the court. It seems to me that it is very difficult to read the Florida Supreme Court decision as saying anything else other than the Florida constitution, in their view, in that court's view, as trumping everything else. The second paragraph of the conclusion says, "Because the right to vote is the preeminent right in the Declaration of Rights of the Florida Constitution" and so forth. This opinion is full of language -- JUSTICE BREYER: Wouldn't they might -- they'd refer to the Declaration of the Rights of Man, to the 1789, the French Revolution. I mean, the right to vote is a value in the Constitution. Are they actually saying -- I didn't see it -- MR. OLSON: They're saying -- JUSTICE BREYER: -- where they say the statute means one thing, but the statute's unconstitutional because the Constitution of Florida says the opposite. I didn't see that.
	A fair, reasonable reading
	MR. OLSON: Well, I think that the only reasonable, fair reading of the decision is that the Florida Supreme Court felt that -- and it says it over and over again -- that we are going to be -- attempt to discern the will of the people, the will of the electorate, and discern and enhance in whatever way we possibly can the right to vote. And because of that, these provisions of the statute, which are very much quintessentially legislative, the timetables that are involved in this statute, particularly the November 14th deadline, is a part of a composite package. There's one week for a protest, and certain recounts, to the extent that they can be done, and there are four weeks for contests. When the Florida Supreme Court truncated -- when the Florida Supreme Court expanded the protest period from seven days to 19 days, it necessarily limited the contest period to a shorter period of time. It changed the discretion. It allowed certain things to occur that couldn't have occurred, and it justifies all of those things on the grounds that the Florida Supreme Court - the Florida Constitution trumps those legislative concerns. So -- and that's why it said we are not going to be dissuaded by hypertechnical statutory considerations. So the court was doing what this court said, in the McPherson versus Blacker case, that it cannot do -- is allow itself to insert itself or the Florida Constitution, above what is required by Article II, Section 1, of the Constitution. It also seems to me quite evident, in response to what Justice Kennedy was asking earlier, that there was concern about the federal statutory provision. The language to which I think Justice Kennedy was referring is on page 32-A of the appendix to the petition from the court's decision. And there's a footnote there that does refer to reference to 3 U.S.C. 1 through 10, which of course includes Section 5. And it says so in conjunction with the statement that the exercise of the discretion by the secretary of state could not be done in such a way that would preclude Florida voters from participating fully in the federal electoral process. The court was assuming, it seems to me, that it did not -- was not -- the decision it was rendering was not going to cause a conflict with the federal statutory scheme, and it was, we submit, in error in that regard. To sum up with respect to this, the Florida Supreme Court radically changed the legislative scheme because it thought it could do so under the Florida Constitution. By doing so, it acted inconsistently with Article II of the Constitution and inconsistently with Section 5 of Title III, and it has brought about precisely the circumstances that Section 5 of Article -- of Section III -- Title III -- was designed to avoid. The very same -- JUSTICE GINSBURG: If I had looked at the -- in the conclusion, the paragraph on page 37-A where they summarize what they said, there's nothing there about the Florida Constitution, it is only about the Florida election code. They say they must construe the Florida code as a whole. And they point out the provisions in conflict. There's not one word in that paragraph that says anything about the Florida Constitution. MR. OLSON: The very second paragraph refers to the Florida Constitution and the rights to vote -- page 36-A of the index to the petition. JUSTICE REHNQUIST: Thank you, Mr. Olson.