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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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JUSTICE
REHNQUIST: Mr. Olson, you have five minutes remaining.
MR. OLSON: Thank you, Mr. Chief Justice. I would like to start with a
point or two with respect to the equal protection/due process component
of this case. The Florida Democratic Party, on November 20, was asking
the -- November 20th of this year, was asking the Florida Supreme Court
to establish uniform standards with respect to the looking at and evaluating
these ballots, a recognition that there were no uniform standards and
that there ought to be. Last Tuesday, in the 11th Circuit, unless I misheard
him, the attorney for the attorney general of Florida said that the standards
for evaluating these ballots are evolving.
There is no question, based upon this record, that there are different
standards from county to county --
JUSTICE GINSBERG: Well, there are different ballots from county to
county too, Mr. Olson. And that's part of the argument that I don't
understand. There are machines, there's the optical scanning, and then
there are a whole variety of ballots. There's the butterfly ballot that
we've heard about and other kinds of postcard ballots. How can you have
one standard when there are so many varieties of ballots?
MR. OLSON: Certainly, the standard should be that similarly situated
voters and similarly situated ballots ought to be evaluated by --
JUSTICE GINSBERG: Then you'd have --
MR. OLSON: -- comparable standards, and --
JUSTICE GINSBERG: Then you'd have to have several standards.
MR. OLSON: Well, you --
JUSTICE GINSBERG: county by county would be --
MR. OLSON: You're certainly going to have to look at a ballot that you
mark in one way different than these punch card ballots. Our point is,
with respect to the punch card ballots, is that there are different
standards for evaluating those ballots from county to county. And there
have -- it is a documented history, in this case, that there have been
different standards between November 7th and the present, with respect
to how those punch card ballots are evaluated.
Palm Springs is the best example. They started with a clear rule which
had been articulated and explained to the voters, by the way, as of
1990. Then they got into the process of evaluating these ballots and
changed the standard from moment to moment during the first day. And
again, they evolved from the standard that the chad had to be punched
through, to this so-called dimpled ballot standard -- indentations on
the ballot. There was a reason why that was done. It was because they
weren't producing enough additional votes, so that there's pressure
on to change the standards. And that will happen in a situation which
is -- where the process is ultimately subjective, completely up to the
discretion of the official, and there's no requirement of any uniformity.
Now, we now have something that's worse than that. We have standards
that are different throughout 64 different counties. We've got only
undercounts being considered where an indentation on a ballot will now
be coUnited as a vote, but other ballots that may have indentations aren't
going to be coUnited at all. The overvotes are in a different category,
and in this very remedy, the ballots in Miami- Dade are being treated
differently. Some of them have been all examined, and the balance of
the process, the remaining 80 percent, will be looked at only in connection
with the undercounts. Mr. --
JUSTICE GINSBURG: Mr. Olson, do I understand that your argument on the
equal protection branch would render academic what was your main argument
that's troublesome; that is, that we must say the Florida Supreme Court
was so misguided in its application of its own law, that we reject that,
and we, the Supreme Court of the United States, decide what the Florida
law is?
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MR. OLSON: I'm not sure I know the answer to that question, and whether
that would render academic the challenge. There is a clear constitutional
violation of our -- in our opinion, with respect to Article II, because
virtually every aspect of Florida's election code has been changed as
a result of these two decisions.
JUSTICE GINSBURG: But the Florida Supreme Court told us that it hasn't
been changed. And just looking at one of the cases that you cite frequently,
the O'Brien against Skinner case, this court said, "Well, maybe
we would have decided the New York law differently, but the highest
court of the state has concluded otherwise. It is not our function to
construe a state statute contrary to the construction given it by the
highest court of the state."
MR. OLSON: The only thing that I can say in response to that is that
what this court said one week ago today -- that as a general rule, the
court defers to a state court's interpretation of a state statute, but
not where the legislature is acting under authority granted it -- granted
to it by the Constitution of the United States.
The final point I would like to make is with respect to Section 5. It
is quite clear that the court in both the earlier decision and in the
-- and the decision last Friday was aware and concerned about compliance
with Section 5. It construed Section 5 in a way that allowed it, by
labeling what it was doing as interpretation, to change in dramatic
respects the Florida election law and, we submit, because it did so,
misconstrued the applicability not only with respect to finality, but
the other part of Section 5 requires a determination of controversies
pursuant to a set of laws that are in place at the time of the elections.
JUSTICE BREYER: If you start with the premise a clear intent of a vote
should count, where there's a clear intent on the ballot it should count
as a vote, can't you reasonably get to the majority's conclusion?
MR. OLSON: I don't believe so, because we know different standards were
being applied to get to that point, and they were having different results.
CHIEF JUSTICE REHNQUIST: Thank you, Mr. Olson. The case is submitted.
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