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JUSTICE KENNEDY: Can you begin by telling us our federal jurisdiction?
Where's the federal question here?
MR. OLSON: The federal question arises out of the fact that the Florida
Supreme Court was violating Article II, Section 1 of the Constitution
and it was conducting itself in violation of Section 5 of Title III
of the federal law.
JUSTICE KENNEDY: On the first, it seems to me essential to the republican
theory of government that the Constitutions of the United States and
the states are the basic charter. And to say that the legislature of
the state is unmoored from its own constitution and it can't use its
courts and it can't use its executive agency -- even you, your side,
concedes it can use a state agent -- seems to me a holding which has
grave implications for our republican theory of government.
MR. OLSON: Justice Kennedy, the Constitution specifically vested the
authority to determine the manner of the appointment of the electors
in state legislatures. Legislatures, of course, can use the executive
branch in the states and it may use, in its discretion, the judicial
branch.
JUSTICE KENNEDY: Then why didn't it do that here?
MR. OLSON: I did not do that here because it did not specify -- It did
use the executive branch. In fact, it vested considerable authority
in the secretary of state, designating the secretary of state as the
chief elections official. And as we point out, the very first provision
in the election code
requires the secretary of state to assure uniformity and consistency
in the application and enforcement of the election law. The secretary
of state, as the executive branch, is also given considerably other
-- considerable other responsibilities. And to a certain extent, especially
in connection with the contest phase of the election, certain authority
was explicitly vested in the Circuit Court of the state of Florida,
which is the trial court.
JUSTICE O'CONNOR: But you think, then, there is no appellate review
in the Supreme Court of what a circuit court's done?
MR. OLSON: Certainly the legislature did not have to provide appellate
review.
JUSTICE O'CONNOR: Well, but it seemed, apparently, to just include selection
of electors in the general election law provisions; it assumed that
they'd all be lumped in together somehow. They didn't break it out.
MR. OLSON: Well, there are -- there is a breakout with respect to various
aspects of Florida statute and Florida election law. There's a specific
grant of authority to the circuit courts. There's no reference to appellate
jurisdiction. It may not be the most powerful argument we bring to this
-
JUSTICE KENNEDY: I think that's right. (Laughter.)
MR. OLSON: Because notwithstanding -- well, the fact is that the Constitution
may have been invoked --
JUSTICE KENNEDY: Well, this is serious business because it indicates
how unmoored, untethered the legislature is from the constitution of
its own state, and it makes every state-law issue a federal question.
Can you use this theory and say that it creates some sort of presumption
of validity that allows us to see whether the courts or the executive
has gone too far? Is that what you're arguing?
MR. OLSON: No. I would say this with respect -- it would have been a
perfectly logical and -- if you read the statutes -- a perfectly logical,
especially in the context of a presidential election, to stop this process
at the circuit court and not provide layers of appeal because, given
the time deadline, especially in the context of this election the way
it's played out, there is not time
for an appellate --
JUSTICE O'CONNOR: I have the same problem Justice Kennedy does, apparently,
which is, I would have thought you could say that Article II certainly
creates a presumption that the scheme the legislature has set out will
be followed, even by judicial review, in election matters, and that
3 U.S. Code Section 5 likewise suggests that there -- it may inform
the reading of statutes crafted by the legislature, so as to avoid having
the law changed after the election. And I would have thought that that
would be sufficient, rather than to raise an appropriate federal question
--
MR. OLSON: Well --
JUSTICE O'CONNOR: -- rather than to say there's no judicial review here
in Florida.
MR. OLSON: I think that I don't disagree with that, except to the extent
that I think that the argument we presented and amplified in our briefs
is a good argument. It's a solid argument. It is consistent with the
way the code is set up, and it's particularly consistent with the timetable
that's available in presidential election. However --
JUSTICE SCALIA: Well, it's pretty close. You can say it could be interpreted
that way by the Florida Supreme Court, I suppose. But you think it must
be, or is your point that even in close calls we have to revisit the
Florida Supreme Court's opinion?
MR. OLSON: No, I think that -- I think that it is -- particularly in
this case, where there's been two wholesale revisions, major restructuring
of the Florida election code, we don't even get close to that question
at all.
It is -- it would be unfortunate to assume that the legislature devolved
this authority on its judiciary sub silentio; there is no specific reference
to it. But in this case, as we have pointed out, especially the decision
of last Friday, there was a major overhaul in almost every conceivable
way --
JUSTICE STEVENS: But, Mr. Olson, as I understand your argument, you
rely on Lizer (ph) against Garnett (sp) and Hawk (sp) against Smith
(sp). And is it critical to your Article II argument that we read the
word "legislature" as narrowly -- I mean the power granted
to the legislature as similar to that granted in Article V of the Constitution,
as those cases dealt with?
MR. OLSON: No, I don't think it's necessary --
JUSTICE STEVENS: So your reliance on -- you really are not relying on
those cases?
MR. OLSON: Well, I think those cases support the argument. But we --
as we --
JUSTICE STEVENS: You've got to choose one version of the word "legislature"
or the other.
MR. OLSON: I think in different contexts it's not necessarily the case.
And certainly it is true that legislatures can employ the legislative
process that might include vetoes by a state chief executive, or a referendum,
when the state deliberately chooses to choose a legislative method to
articulate a code.
The point I think that's most important and most --
JUSTICE STEVENS: But is it the choice of the legislature, or is it --
was it constitutionally limited to this provision? I'm a little unclear
on what your theory is. Is it your theory, in other words, that they
voluntarily did not permit appellate review of the lower courts in these
election contests, or that the -- Article II prohibited them from allowing
appeal to the appellate court?
MR. OLSON: No, Article II -- we do not contend that Article II would
prohibit them from --
JUSTICE STEVENS: Of course Article V would have, under Lizer (ph) against
Garnett (sp) and those cases. But you --
MR. OLSON: In the context of this case, we're saying that they can include
the judicial branch, when they wish to do so. But they -- under no circumstances
is it consistent with the concept of the plan in the constitution for
the state sub silentio -- the state legislature -- sub silentio to turn
over to the judiciary the power to completely reverse, revise, and change
the election code in all of the major respects -
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JUSTICE GINSBURG: Mr. Olson? With respect to the role of judicial review,
you rely very much on the McPherson case. And two things strike me about
that case; one is, if you're right on your jurisdiction theory, then
should not this court have vacated, instead of affirmed, the decision
of the Michigan Supreme Court in that case, because the Michigan legislature
didn't confer upon the Michigan Supreme Court in that case any special
authority of judicial review?
MR. OLSON: That's entirely possible that that might be the case, Justice
Ginsburg, but the entire text of the McPherson decision and its recitation
of the legislative history, or the history of legislation and acts by
state legislatures to comply with it, make it quite clear that the power
is vested in the legislature itself.
JUSTICE GINSBURG: But there was a decision by the court reviewing, which
we affirmed. Under your jurisdiction theory, as I see it, there was
no role for the Michigan Supreme Court to play because Article II, Section
1, gives the authority exclusively to the legislature and the legislature
had not provided for judicial review specially for that measure.
MR. OLSON: I think the context of that case is different, and that it's
entirely possible for the court to have come to the conclusion it did
in that case, and we believe that case is compelling for the principle
that we're arguing in this case, that there is no -- the entire structure
of what Florida did -- its election code, in its effort to comply not
only with Article II but with Section 5 of Title III -- is such that
it did not intend, in any way, to divest itself of the power to determine
how the appointment of electors would be determined in a federal presidential
election and, most importantly, the resolution of cases and controversies
and disputes with respect to the appointment.
JUSTICE GINSBERG: Three times, at least as I count it, in McPherson
itself, it refers to what is done by the legislative power under state
constitutions as they exist. This is not the most clearly written opinion,
and yet three times they refer to the legislative power as constrained
by the state's Constitution.
MR. OLSON: And I think that's important. I agree with you, Justice Ginsberg.
It's not the most clearly written opinion. But I think that in the context
of that case, the relationship of the legislature to the Constitution
in that case, and the way that power was exercised, that all can be
reconciled with what we're urging the court today; that a wholesale
revision and abandonment of the legislative authority can't be turned
over, especially sub silencio, by a legislature, simply because there
is a constitution. There is a constitution in every state. There is
a judiciary in every state. The judiciary performs certain functions
in every state. And to go that length, one would assume that the judiciary
in every state, under that argument, could overturn, rewrite, revise,
and change the election law in presidential elections, notwithstanding
Article II, at will. Now, this was a major, major revision that took
place on Friday.
JUSTICE STEVENS: But Mr. Olson, isn't that one of the issues in the
case, as to whether it was a major revision? Your opponents disagree.
And I know you rely very heavily on the dissenting opinion in the Florida
Supreme Court. But which opinion do we normally look to for issues of
state law?
MR. OLSON: Well, I think that the dissenting opinion and the two dissenting
opinions are very informative. We're relying on what the court did.
If one looks at, for example, the recount provisions, before this revision,
under Florida law, manual recount under the protest provisions were
discretionary, completely discretionary, conducted by canvassing boards
during the protest phase of the election -- post-election period, pursuant
to legislatively defined procedures as to who could be present, for
seven days after the election, with respect to all ballots in a county
-- that was mandatory -- and only available, as we heard last week,
for tabulation error, up until this election.
After the decision of December 8th, in this context those remand provisions
-- I mean, those recount, manual recount provisions became mandatory
instead of discretionary, pursuant to judicial rather than executive
supervision, during the contest phase rather than the protest phase
even though it's not even mentioned in the statute with respect to the
contest phase, pursuant to ad hoc, judicially established procedures
rather than the procedures that are articulated quite carefully in the
statute --
JUSTICE SOUTER: Well, aren't ad hoc, judicially created procedures the
point of subsection 8 of 168? I mean, once we get into the contest phase,
subsection 8 gives, at least to the circuit court, leaving aside the
question of appellate jurisdiction, about as broad a grant to fashion
orders as I can imagine going into a statute.
MR. OLSON: Well, to read that, to read that provision -- and it's written
quite broadly, but to read that -- one has to read that in the context
of the entire statutory framework. If one reads it the way the Florida
Supreme Court did at -- the entire process is tilted on its head; where
there used to be a decision that was in the election officials, it now
becomes in the court. All of the limitations on the remand process that
existed during the protest phase, where the standards should be lower,
because it's earlier in the process, are thrown out the window. The
timetables are thrown out the window. The process that exists -- are
there, and one has --
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JUSTICE SOUTER: What's the timetable in 168?
MR. OLSON: There's no timetable in --
JUSTICE SOUTER: That's right; there is no timetable there. So that seems
to undercut your timetable argument, once you get into the phase from
the protest phase.
MR. OLSON: Well, I think -- but -- but that's only if you untether 168
entirely from the statute and the scheme by which the protest phase
takes place over a period of seven to 10 days in the context of this
election, and the contest phase occurs over the next four weeks --
JUSTICE SOUTER: It may well be, and I -- you know, I'll grant you, for
the sake of argument, that there would be a sound interpretive theory
that, in effect, would coordinate these two statutes, 166 and 168, in
a way that the Florida Supreme Court has not done. But that's a question
of Florida Supreme Court statutory construction. And unless you can
convince us, it seems to me, that in construing 168, which is what we're
concerned with now, and its coordination or lack of coordination with
166, the Florida Supreme Court has simply passed the bounds of legitimate
statutory construction, then I don't see how we can find an Article
II violation here.
MR. OLSON: Well, I am hoping to convince you that they've passed far
beyond the normal limits of statutory construction. The changing of
the --
JUSTICE SOUTER: You've convinced us, certainly, that there is a disagreement
about how it should be construed, and that disagreement is articulated
by the dissents in the most recent case. But I don't quite see where
you cross the line into saying that this had simply become a non-judicial
act. It may or may not be good statutory construction, but I don't see
it as a nonjudicial act.
MR. OLSON: It is, we submit, an utter revision of the time tables, the
allocation of --
JUSTICE SOUTER: But, Mr. Olson, we're back to the -- there is no time
table in 166.
MR. OLSON: That's correct.
JUSTICE SOUTER: And what your argument boils down to, I think, is that
they have insufficiently considered -- I'm sorry, in 168 -- that they
have insufficiently considered 166 in construing 168, and you may be
right, but you have no textual hook in 168 to say untethered time tables
imply, in effect, a nonjudicial act.
MR. OLSON: We're not just saying time tables. We're saying that it has
wrenched it completely out of the election code, which the legislature
very carefully crafted to fit together and work in an interrelated fashion.
It isn't just the time table. The fact that there are time tables, which
are very important in a presidential election -- we are today smack
up against a very important deadline, and we're in a process where --
JUSTICE SOUTER: Yes, you are, but that is a deadline set by a safe harbor
statute for the guidance of Congress, and it's a deadline that has nothing
to do with any text in 168.
MR. OLSON: Well, I believe that the Supreme Court of Florida certainly
thought that it was construing it -- certainly said so this time --
that it was construing the applicability of Section 5 and it was expressing
the hope that what it was doing was not risking or jeopardizing the
conclusive --
JUSTICE SOUTER: And it took that into consideration in fashioning its
orders under Subsection 8.
MR. OLSON: And we submit that it incorrectly interpreted and construed
federal law in doing that, because what they have inevitably done is
provide a process whereby it is virtually impossible, if not completely
impossible -- and I think it is completely impossible -- to have these
issues resolved and the controversies resolved in time for that federal
statutory deadline. Furthermore, it is quite clear. We submit that the
process has changed --
JUSTICE SOUTER: Well, if your concern was with impossibility, why didn't
you let the process run instead of asking for a stay?
MR. OLSON: Well because, we said --
JUSTICE SOUTER: We'd find out.
MR. OLSON: Because we argued. And I believe that there's a very firm
basis for saying that that process already had violated Article II of
the Constitution. It was also already throwing in jeopardy compliance
with Section 5 of Title 3 because the laws had been changed in a number
of different respects, and we're recited them. The timetables are important.
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JUSTICE KENNEDY: Well, and I thought your point was that the process
is being conducted in violation of the Equal Protection Clause --
MR. OLSON: And --
JUSTICE KENNEDY: -- because it's standardless.
MR. OLSON: And the Due Process Clause, that we know is now the new system
that was set forth and articulated last --
JUSTICE BREYER: In respect to that.
MR. OLSON: Pardon me?
JUSTICE BREYER: In respect to that, if it were to start up again; if
it were, totally hypothetically, and you were counting just undercounts.
I understand that you think that the system that's set up now is very
unfair because it's different standards in different places. What, in
your opinion, would be a fair standard, on the assumption that it starts
up missing the 12th deadline, but before the 18th?
MR. OLSON: Well, one fair standard, and I don't know the complete answer
to that, is that there would be a uniform way of evaluating the manner
in -- there's Palm Beach, for example, and --
JUSTICE BREYER: All right, in a uniform way of evaluating, what would
the standard be, because this is one of your main arguments.
MR. OLSON: Well --
JUSTICE BREYER: You say intent of a voter is not good enough; you want
substandards.
MR. OLSON: We want --
JUSTICE BREYER: And what, in your opinion, would be the most commonly
used in the 33 states, or whatever, or, in your opinion, the fairest
uniform substandard?
MR. OLSON: Well, certainly a minimum, Justice Breyer, the penetration
of the ballot card would we required. Now, that's why I mentioned the
Palm Beach standard that was articulated in writing and provided, along
with the ballot instructions, to people voting that the chad ought to
be punctured.
JUSTICE BREYER: You're repeating then, basically, Indiana. Is Indiana,
in your opinion -- or 1990 Palm Beach -- are either of those fair, or
what else?
MR. OLSON: It is certainly a starting point, and is something that has
some --
JUSTICE O'CONNOR: Well, would the starting point -- would the starting
point be what the secretary of state decreed for uniformity? Is that
the starting point --
MR. OLSON: That is correct --
JUSTICE O'CONNOR: -- under the Florida legislative scheme?
MR. OLSON: I would agree with that, Justice O'Connor, and --
JUSTICE O'CONNOR: And what standard did the secretary of state set?
MR. OLSON: She had not set one, and that's one of the objections that
we had with respect to the process that -- the selective process --
that existed and that we discussed in conjunction with the November
21st position. Not only was there not a standard, but there was a change,
two or three times during the course of this process, with respect to
the standard that I was just discussing.
JUSTICE KENNEDY: I understand that she has the expertise and we'll --
let's assume that, under Florida state law, she's the one with the presumptive
competence to set the standard. Is there a place in the Florida scheme
for her to do this in the contest period?
MR. OLSON: I don't think there is -- well, there is no limitation on
when she can answer advisory opinions --
JUSTICE KENNEDY: Even in the contest period?
MR. OLSON: I don't -- I think that that's correct. Now, whether or not,
if there was a change as a result of that, of the process, whether there
would be problems with respect to Section 5, I haven't thought about.
JUSTICE SOUTER: Well, if this matter was -- if this were remanded --
(Cross talk.)
JUSTICE KENNEDY: Go ahead. You.
JUSTICE SOUTER: I'm sorry. If this were remanded to the Leon County
Circuit Court and the judge of that court addressed the secretary of
state, like it either is or could be made a party, and said, "Please
tell us what the standard ought to be. We will be advised by your opinion."
That would be feasible, wouldn't it?
MR. OLSON: I think it would be feasible. Now, counsel for the secretary
of state will be up in a moment, immediately after me. As I understand,
however, the Election Code, she would have the power to respond to that
inquiry. In fact, under the very first -- as I mentioned, the very first
section of the Election Code, Sub 1, she's not only the chief election
officer, but has responsibilities for --
JUSTICE BREYER: But I'd still like to get your view as to what would
be the fair standard.
MR. OLSON: Well, certainly one that would -- I don't -- I haven't crafted
it entirely out. That is the job for a legislature --
JUSTICE BREYER: But I'd still like to get your opinion, in so far as
you could give it.
MR. OLSON: I think that part of that standard is that it would have
to be applied uniformly. It would have to be -- I would think a reasonable
standard would have to be, at minimum, a penetration of the chad in
the ballot because indentations are no standards at all. There are other
procedural standards --
JUSTICE STEVENS: Well, Mr. Olson, was the Palm Beach standard, that
you refer to in your brief, applied statewide and uniformly?
MR. OLSON: What --
JUSTICE STEVENS: You refer to the Palm Beach standard having changed.
Was the Palm Beach standard ever applied on a statewide basis?
MR. OLSON: I believe it was not, Justice Stevens.
JUSTICE STEVENS: And can we possibly infer, from the failure of the
secretary of state to promulgate a statewide standard that she might
have inferred that the intent of the voter is an adequate standard?
MR. OLSON: No, I don't think it's a fair inference either way. Remember,
in response to the question from -- I think it was Justice Scalia, the
last time we were here, this is the first time we've had a manual recount
for anything other than arithmetic tabulation error. This is something
that is unprecedented in the state of Florida. That's another change
that took place.
JUSTICE GINSBURG: Mr. Olson, you have said the intent of the voter simply
won't do; it's too vague, it's too subjective. But at least, but at
least those words -- "intent of the voter" -- come from the
legislature. Wouldn't anything added to that be -- wouldn't you be objecting
much more fiercely than you are now, if something were added to the
words that the all-powerful legislature put in the statute?
MR. OLSON: Well, I think we have to distinguish between whether we're
talking about a prospective uniform standard, as opposed to something
that changes the process in the middle of the counting and evaluating
of disputes. But certainly we're --
JUSTICE GINSBURG: But if we're talking about -- if we're talking about
the contest period and -- this statute, as Justice Souter pointed out,
speaks with amazing breadth. It says that the circuit judge -- this
is the text -- "shall fashion any order he or she deems necessary
to prevent or correct any wrong, and to provide any relief appropriate
to the circumstances." I couldn't imagine a greater conferral of
authority by the legislature to the circuit judge.
MR. OLSON: In the -- but I -- we submit, in the context of the entire
election code itself -- now the intent of the voter standard, the one
that's been cited and relied on by our opponents most, is a provision
that's contained in the provision of the election code that deals with
damaged or spoiled ballots.
JUSTICE SOUTER: Okay, but we have -- there's no question that the closest
we can come now, under Florida law, is an intent of the voter standard.
Is it your position that if any official, judicial or executive, at
this point were to purport to lay down a statewide standard which went
to a lower level, a more specific level, than intent of the voter, and
said, for example, "Count dimpled chads or don't count dimpled
chads" -- in your judgment, would that be a violation of Article
II?
MR. OLSON: I don't think it would be a violation of Article II, provided
that -- I mean, would -- if the first part of your question --
JUSTICE SOUTER: All right. So --
MR. OLSON: -- if we went from the standard that existed before, the
dimpled chads that hadn't -- that that had not been a standard anywhere
in Florida -- if that change was made, we would strongly urge that that
would be a violation of Article II. It would be a complete change.
JUSTICE SCALIA: Mr. Olson, it is also a part of your case, is it not,
that insofar as that language you just quoted is concerned, the power
of the circuit judge to prevent or correct any alleged wrong, it's part
of your submission, I think, that there is no wrong when a machine does
not count both ballots that it's not supposed to count?
MR. OLSON: That's absolutely correct, Justice Scalia --
JUSTICE SCALIA: When the voters are instructed to detach the chads entirely,
and the machine, as predicted, does not count those chads, where those
instructions are not followed, there isn't any wrong.
MR. OLSON: That's correct. They've been -- this has been euphemistically
referred to as legal votes that haven't been coUnited. These are ballots
where the system created by Florida, both with respect to the initial
tabulation and the preferred system for the recount, the automatic recount
in close elections is to submit those ballots to the same mechanical,
objective scrutiny that the initial count was done, and those were not
coUnited, either because there were votes for more than one candidate,
which would make them over-votes, I guess they're calling them, or that
they read as "no vote," which many people do. Many people
do not vote in the presidential election even though they're voting
for other offices.
JUSTICE SOUTER: But as to the undervotes, and as to the undervotes in
which there is arguably some expression of intent on the ballot that
the machine didn't pick up, the majority of the Florida Supreme Court
says you're wrong. They interpreted the statute otherwise. Are you saying
here that their interpretation was so far unreasonable in defining legal
vote as not to be a judicial act entitled, in effect, to the presumption
of reasonable interpretation under Article II?
MR. OLSON: Yes, that is our contention. And that has to be done -- that
contention is based upon everything else in the Florida statute, including
the contest provisions. The manual recount provisions --
JUSTICE SOUTER: What is it in the contest provision that supports the
theory that that was a rogue, illegal judicial act?
MR. OLSON: Because there is no reference to them even though that process
--
JUSTICE SOUTER: There's no definition. There's no definition. Doesn't
the court have to come up with a definition --
MR. OLSON: In the context -- in the context of the statute as a whole,
manual recounts are treated quite extensively, as a last resort, for
tabulation error, at the discretion of canvassing officials.
JUSTICE SOUTER: At -- at the protest.
MR. OLSON: That's correct.
JUSTICE STEVENS: Mr. Olson --
MR. OLSON: We submit, and I'd like to reserve the balance of my --
JUSTICE STEVENS: -- is it critical to your position that the Florida
Supreme Court erred in its resolution of the Shell-May (sp) controversy
in its first opinion?
MR. OLSON: I'm sorry, I --
JUSTICE STEVENS: Is it critical to your position, because you're tying
the two cases together, that the Florida Supreme Court made that kind
of error in its resolution of the conflict between Shell and May (sp)
in the Harris statute?
MR. OLSON: I don't think its critical to our -- what we're saying is
that what the court expanded upon, its previous decision was vacated
in this case, it used the time period that it opened up to do this manual
recount to the build upon in the December 8th opinion.
JUSTICE REHNQUIST: Very well, Mr. Olson. Mr. Klock, we'll hear from
you.
Click here for oral arguments
by Joseph Klock Jr., lawyer for Florida Secretary of State Katherine
Harris.
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