 |
|
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.
|
|
|
|
|
|
|
JUSTICE REHNQUIST: Thank you. Mr. Tribe, we'll hear from
you.
MR. TRIBE: Mr. Chief Justice, and may it please the court, I think I
would want to note at the outset that the alleged due process violation,
which keeps popping up and then disappearing, and has, as far as I can
tell, not appeared at the state supreme court, did make one appearance
in the reply brief here, is really not before the court, and for understandable
reasons, because although it is part of the popular culture to talk
about how unfair it is to change the rules of the game, I think that
misses the point when the game is over, and when it's over in a kind
of photo-finish that leaves people unsure who won. And the question
is, how do you develop great -- sort of greater certainty? And a rather
common technique is recounts; sometimes a manual recount, sometimes
taking more time, it would be rather like looking more closely at the
film of a photo finish. It's nothing extraordinary. It's not like suddenly
moving Heartbreak Hill or adding a mile or subtracting a mile from a
marathon.
JUSTICE KENNEDY: You're saying no important policy in 3 USC Section
5?
MR. TRIBE: No, no.
JUSTICE KENNEDY: In fact, we can change the rules after the game; it's
not important. Popular culture.
MR. TRIBE: No, certainly not, Justice Kennedy. But I read USC Section
5 -- that is 3 USC Section 5, not as a requirement that, for example,
one never add resources to checking how a particular ballot was cast.
If you look at the language, I think it's really much too casual to
say of it that all of the laws must stay fixed in order to have the
safe harbor apply, though as I'll try to argue in a few minutes, that's
really not a question for this court but, rather, for Congress. But
the language of Section 5 is that -- and I'll just read what I think
are the key words. "If a state --"
JUSTICE REHNQUIST: Can you tell us where you're reading from?
MR. TRIBE: Actually, I'm just reading from a copy of the U.S. Code,
3 USC Section 5, not from any page I can identify.
JUSTICE SOUTER: It's in the Appendix to the petitioner's brief, I'm
sure; isn't it?
MR. TRIBE: Yes, although I'm afraid I don't have it in front of
me.
JUSTICE SOUTER: Page 3-A of the blue brief.
MR. TRIBE: Thank you, Justice Souter. Page 3-A of the blue brief, I
am reliably informed. (Laughter.) So if --
JUSTICE SOUTER (?): That won't get you an extra two minutes.
(Laughter.)
MR. TRIBE: Well, I tried. I tried. "If any state shall have provided"
-- and then it says -- "by law, as enacted prior to the day affixed
for the appointment of the electors" -- a fancy way of saying election
day -- "for the final determination of any controversy or contest
about the appointment of electors" -- and here's the key phrase,
I think -- "by judicial or other methods or procedures, at least
six days before the time fixed for the meeting of the electors"
-- that means, in our situation, December 12th -- "then the final
determination shall be conclusive and govern the counting in Congress."
Now, the question for Congress, I suppose, would be -- though I don't
see how this court could get into that question at this stage -- but
the question would be, is a particular change extending a deadline for
exigent circumstances, because a recount has been authorized, a change
in the judicial or methods of procedures for resolving the contest?
JUSTICE REHNQUIST: Let me ask you just a moment, Mr. -- you say you
don't think this statute permits this court to get into the matter at
this time. Are you suggesting there could be any judicial review of
a decision by the Congress to count one set of electoral votes --
MR. TRIBE: No, I don't think so, Mr. Chief Justice. It's just that I
don't trust my own imagination to have exhausted all possibilities.
For example, in the case in, I think it was, 1890 in Fizgerald v. Green
when this court held that only states can punish fraudulent voting for
presidential electors, it got into the Act sort of obliquely and at
an angle, and that had a bearing on the question of how the presidential
electoral slate might be composed, but it certainly didn't get into
this.
JUSTICE REHNQUIST: No, it certainly was quite different from --
MR. TRIBE: Very.
JUSTICE REHNQUIST: -- this hypothetical.
MR. TRIBE: That's certainly right.
JUSTICE KENNEDY: You suggest in your reply brief that it is not -- I
think you said it is not self-evident that the Florida legislature at
this time has the right to appoint any slate of delegates because the
Congress has set the date, and the date is the general election day.
If that is so, doesn't this mean that when we talk -- think about justiciability
(sp), we must be very careful to preserve the role of the court. You
have said or suggested here on page -- in your reply brief -- that the
Florida legislature now has no role. You are now suggesting that this
court has no role. That means the Supreme Court of Florida is it, so
far as judicial interpretation of the consequences of 3 USC, Section
5.
MR. TRIBE: Justice Kennedy, first of all, I do want to be clear that
in our view the question of whether and when and how the Florida legislature
can enter the picture is in no way presented. That paragraph was intended
to suggest that it's not obvious that the views of some that there's
no problem, is right. Secondly, if it were the case that the Florida
legislature could not simply decide, well, we're tire of all this counting,
we're moving in, and that this court cannot decide whether the conditions
of 3 USC Section 5 are met. It would then remain only for Congress to
make a determination, and adding the Florida legislature would not,
after all, have added an adjudication.
JUSTICE KENNEDY: And my point is, that puts hydraulic pressure on your
non-justiciability argument and makes it a very, very important argument,
and a critical argument, in this case.
MR. TRIBE: Well, perhaps, Justice Kennedy, but I, frankly, can't see
how it would affect the decision in this case. I mean, after all, you
have before you a judgment of the highest court of a state. As Justice
Ginsburg and others have suggested, it would ordinarily be the case,
surely, that one would not go out of one's way to read the judgment
as a breach of faith with the duties of trying to reconcile provisions
that are --
JUSTICE O'CONNOR: Well, I guess in the area, though, of presidential
electors, it could be that that court, as all courts would be, have
to be informed, at least, by the provisions of Section
5 in reviewing the laws enacted by the legislature of the state. I mean,
it had to register somehow with the Florida courts that that statute
was there and that it might be in the state's best interest
not to go around changing the law after the election.
|
|
| A
federal issue |
|
MR. TRIBE: But Justice O'Connor, I certainly agree that if the Florida
Supreme Court adverted to 3 USC Section 5, and, as Justice Kennedy asked
earlier, got it wrong, then there would be a federal issue for this
court. Would it be, I wonder, a federal issue --
JUSTICE O'CONNOR: Well, is there a federal issue if the court doesn't
--
MR. TRIBE: No. The answer is no.
JUSTICE O'CONNOR: -- advert to it?
MR. TRIBE: It would be nice; but remember, it is --
JUSTICE O'CONNOR: Because of Article II, which, after all, does give
the legislature plenary power and must have wanted -- it must have wanted
to have the laws in place so that it wasn't -- so that Florida wouldn't
risk losing its electoral votes. I mean, the legislature had to want
that by enacting laws.
MR. TRIBE: I'm sure --
JUSTICE O'CONNOR: And perhaps the Florida court has to be aware of the
consequences to the state of changing the rules.
MR. TRIBE: But Justice O'Connor, under Article II, Section 1, Clause
2, the authority to regulate the manner of the choice of electors is
vested in the state legislature. If the state legislature decides from
the beginning to exercise that authority by instructing the various
institutions -- certainly not just the courts: the attorney general,
the secretary of state -- in very particular ways to exercise their
roles in the process with a specific view of --
JUSTICE O'CONNOR: Well, it certainly did by an enacting that date. Here
is the certification date. How could it have been clearer?
MR. TRIBE: Well, I suppose it could be a violation of Florida law if
the enactment of that date is construed as a direction to a particular
authority, like the secretary of state or the state's highest court,
to take certain actions in order to get the benefit of this bonus; but
only a violation of federal law. I don't see how you get a --
JUSTICE REHNQUIST: What Florida law would that --
MR. TRIBE: -- of state law, I'm sorry.
JUSTICE REHNQUIST: Are you talking about the Florida constitution?
MR. TRIBE: Well, it might have been a violation --
JUSTICE REHNQUIST: But then you run into the Blacker (sp) case.
MR. TRIBE: But it seems to me that the federal question, which is really
what brings us here can only arise if 3 U.S.C. Section 5 is something
other than what -- Mr. Olson called it an --
JUSTICE REHNQUIST: But it can also --
MR. TRIBE: -- invitation to the state.
JUSTICE REHNQUIST: It can also arise under the section of the Constitution
that was construed in Blacker (sp). That's quite independent of 3 U.S.
5 (sic).
MR. TRIBE: But sir, if one concluded that Florida had violated its duty
to empower the legislature to take these regulatory steps --
JUSTICE REHNQUIST: If one concluded that the Florida legislature had
relied on the state constitution in a way that the Blacker (sp) case
says it may not in construing the statute.
MR. TRIBE: I think that's possible, Mr. Chief Justice, but the judgment
before you doesn't provide even an inkling, I think, of proof about
those matters. All we have --
JUSTICE REHNQUIST: That's what we've been arguing -- (off mike) -- whether
it does or whether it doesn't.
MR. TRIBE: Well, I think we've been arguing several interrelated things.
One of the things we've been arguing is whether one could in good faith
reach the conclusion, novel as it was in some respects, as Justice O'Connor
points out, that the Florida Supreme Court reached. Now, if the answer
to that question was no, perhaps if there were a due process issue in
this case, I mean, if someone had a protectable interest that was injured,
that would be relevant. But the federal question that makes that relevant
here would arise only if one forgot that III U.S.C. Section 5 is all
carrot and no stick.
JUSTICE REHNQUIST: No, I don't agree with you on that, Mr. Tribe. It
seems to me a federal question arises if the Florida Supreme Court,
in its opinion, rather clearly says that we're using the Florida Constitution
to reach the result we reach in construing the statute. And I think
Blacker is a strong argument they can't do that.
MR. TRIBE: Well, that they can never advert to their own constitution?
I don't think --
JUSTICE REHNQUIST: Certainly it stands for the proposition you couldn't
do it then in those circumstances.
MR. TRIBE: Well, what would it be, I wonder, about the circumstances
here that would say that in reconciling these provision, which at first
we were told were mandatory, then we were told, they're not mandatory,
they give discretion, and now we're told that the real issue is simply
did the court, in putting a boundary on that discretion, do something
federally impermissible, what would it be about that sequence that would
implicate --
JUSTICE REHNQUIST: Well, you know, if the supreme court of Florida simply
said in its opinion, "Look, these sections of the statute conflict.
We've got to, under our judicial principles, resolve it one way or the
other," but it doesn't say that. It goes on to say, "Look,
in the light of the Florida Constitution and the general rights conferred
there, we're construing it this way."
MR. TRIBE: It seems to me that as a tie-breaker, as a way of shedding
light on the provisions that are in conflict, so long as it's not done
in a way that conflicts with a federal mandate, they're not violating
any --
JUSTICE REHNQUIST: Look, Mr. Tribe, I don't --
MR. TRIBE: It's not a question --
|
|
| A
tool of interpretation |
|
JUSTICE REHNQUIST: -- I don't agree with -- I don't agree with that.
I don't think that the Florida Supreme Court used the Florida Constitution
as a tool of interpretation of the statute. If you look at its opinion,
it's separated into various sections, the issues, legal -- for legal
opinion, the Division of Elections, five, the applicable law, VI, statutory
ambiguity, and that's -- and seven, legislative intent.
That's the section where they construe the statute in view of these
ambiguities and so forth. That section concludes, "Under this statutory
scheme, the county canvassing boards are required to submit their returns
to the department by 5:00 p.m. of the seventh day following the election."
The statutes make no provision for exceptions following a manual recount.
If a board fails to meet the deadline, the secretary is not required
to ignore the county's returns, but rather is permitted to ignore the
returns, within the parameters of this statutory scheme.
So what the statutory interpretation gives you is a firm termination
date of December 7th and discretion in the secretary.
The opinion continues, "VIII. The right to vote. The text of our
Florida Constitution begins with a declaration of rights." And
it goes on to say that to the extent the legislature may enact laws
regulating the electoral process, those laws are valid only if they
impose no, quote, "unreasonable or unnecessary," close quote,
restraints on the right of suffrage contained in the Constitution.
In other words, I read the Florida court's opinion as quite clearly
saying: Having determined what the legislative intent was, we find that
our state Constitution trumps that legislative intent. I don't think
there's any other way to read it. And that is a real problem, it seems
to me, under Article II, because in fact there is no right of suffrage
under Article II. The -- there's a right of suffrage in voting for the
legislature, but Article II makes it very clear that the legislature
can itself appoint the electors.
MR. TRIBE: But it seems to me that it's already been conceded that the
legislature can delegate that function to the judiciary. And when Justice
Kennedy asked if it can delegate the function to the judiciary -- and
that is what McPherson seems to suggest -- then can it not delegate
something less?
That is, cannot give -- can it not give the judiciary a role of the
sort that it's exercising here?
After all, the legislature -- and this is important; it's not true in
every state -- the legislature itself re-promulgates the Constitution
every several years, and then it's ratified by the people.
JUSTICE : I --
JUSTICE SOUTER: Isn't there another --
JUSTICE : No, please. That's all right.
JUSTICE : Go on.
JUSTICE SOUTER: Isn't there another way of looking at what the Florida
court did, and that was in effect to apply that the statute -- the interpretive
criterion that where there is any discretion for interpretation, an
unconstitutional result should be avoided? And because you have here
a statute, as I understand it, that regulates both federal and state
recounts, that much is -- I think, is clear.
MR. TRIBE: Right.
JUSTICE SOUTER: The only way to avoid an unconstitutional meaning of
the statute, so far as Florida law was concerned, was to get into this
constitutional concern about preserving the franchise, and that because
the legislature intended one standard to cover both federal and state
recounts, it therefore is valid to consider the state Constitution in
order to derive a general meaning that will apply to a federal as well
as a state election. Is -- can you look at it that way?
MR. TRIBE: I fully accept that view, Mr. Souter. I would supplement
it with one important point: We're not dealing here with a decision
in which within the gray area, where a court could reasonably go either
way, this court simply said, "We don't care about these federal
considerations." It in particular exercised its equitable powers
in favor of the petitioner, in order to facilitate meeting the December
12 deadline, while still being able to have electoral contest. That
December 12 deadline comes purely from federal law.
JUSTICE BREYER: Professor, but can you just go back to your characterization
of the opinion? I think we'd all agree that given that the legislature
has to select the manner, a state can't say, "Our Constitution
selects the electors," I suppose.
MR. TRIBE: That's exactly right.
JUSTICE BREYER: All right. But thinking of this opinion, suppose the
court had said, "Look, we reach our result based on the canons
we found in Blackstone." Now nobody's going to say, "They've
said Blackstone's selecting the electors," right?
MR. TRIBE: I think that -- that's --
JUSTICE BREYER: All right. Now I suppose they said we reached this decision
based on the values found in the Constitution.
That would be like Blackstone. But suppose they say, well, the legislature
wants us to do x but our Constitution requires us to do not x. That
might be different. Now what is it that they've done here?
MR. TRIBE: I certainly don't think they've done the third. They did
not say -- I think when they underscored the presence of language that
Justice Scalia read about what's mandatory, they were simply being candid
about the fact that they were acting in conflict with one part of the
statute, but the --
JUSTICE SCALIA: It's in a separate section of the opinion, Professor
Tribe, that is entitled the right to vote. It is after the legislative
intent section, and it says categorically to the extent that the legislature
may enact laws, they're invalid. And I suggest perhaps the reason that
the court did it is that however expansive the doctrine of constitutional
doubt is, there is no way that it can make December 7 mean anything
except December 7. I mean they were almost constrained to use the Constitution
--
MR. TRIBE: But Justice --
JUSTICE SCALIA: -- to override the firm deadline. It was explicitly
set forth in --
MR. TRIBE: Justice Scalia, both you and I think at one point Justice
O'Connor, in pointing to the particular dates that came out differently
under the approach that this court used from what would have emerged
if they had looked only at 102.111, are making a mistake, with all respect.
It's not as though this court promulgated a rule for the future about
December 7; commemoration of Pearl Harbor, we say, December 7 is the
day. No. What they did was say, we have to find a date which will accommodate
these conflicting statutory provisions and policies in light of what
our Constitution tells us, and we surely -- it would amaze, I would
think amaze this Court to see anyone say that because an opinion was
organized under Roman numeral headings --
JUSTICE STEVENS: Professor Tribe --
|
|
| Florida
opinion |
|
MR. TRIBE: -- in such a way --
JUSTICE STEVENS: Professor Tribe, isn't it -- isn't it also true, Professor
Tribe, that Part 8 of the opinion relies on four things: the Florida
constitution, earlier Florida decisions construing statutes, an Illinois
case, and a federal case --
MR. TRIBE: Absolutely.
JUSTICE STEVENS: -- not just the -- (inaudible) -- there in the Constitution.
MR. TRIBE: That's right. And surely if --
JUSTICE SOUTER: And is it also true -- is it also true that the inability
to use Section 7 depended, in the Florida Supreme Court's reasoning,
not on the existence of the Constitution as the sole reason, but on
the inability to make the December 7 date final and provide for the
recounts within the times in which recounts can be called for?
So what I'm saying is, didn't they say that the date of the 7th cannot
stand, not because of the constitution alone, but because there are
other provisions in the statute that cannot be accommodated with the
seven day?
MR. TRIBE: Exactly.
JUSTICE SOUTER: Yeah.
MR. TRIBE: And I guess to take a broad --
JUSTICE GINSBURG: And they said -- they said that twice. And I think
that's critical, if you add to that that we read a decision of a state
court in the light most favorable to that court and not in the light
least favorable. I suppose there would be a possibility for this court
to remand for clarification. But if there's two readings, one that's
questionable, one that isn't, all of our decisions suggest that we read
the one --
MR. TRIBE: Especially, I think, Justice Ginsburg, when the odds that
these conceivable federal problems are indispensable to this result
are overwhelmingly negative. That is, it's not at though one cannot
explain the result this court reached in the most conventional standard
way. And the fact that --
JUSTICE SCALIA: Professor Tribe, I would feel much better about that
resolution if you could give me one sentence in the opinion that supports
the second of the supposed alternative readings; that supports the proposition
that the Florida Supreme Court was using the constitutional right-to-vote
provisions as an interpretive tool to determine what the statute meant.
I can't find a single sentence of that.
MR. TRIBE: I think, Justice Scalia, I can do a little better than find
a sentence. The entire structure of that part of the opinion, as Justice
Stevens points out, would be incoherent if the Constitution was decisive.
That is the highest law in Florida. Why bother with all the rest if
that is anything more than an interpretive guide?
MR. SCALIA: You would bother with it because, having decided very clearly
what the statute requires, and finding no way to get around the firm
date set, you say the reason it's bad is because of the state constitution.
That's how it's written.
MR. TRIBE: But Justice Scalia --
MR. SCALIA: They might have tried it another way, but it seems to me
they didn't.
MR. TRIBE: They also say that the provision that reaches the result
that conflicts with the authorized recounts was written in 1951; that
in 1989 they wrote a provision that unmistakably created discretion,
and -- we haven't yet discussed this provision -- also created the provision
that when the returns are filed late -- it doesn't say throw them away,
it doesn't say give them back -- it says fine every member of the canvassing
board $200 a day. That would be a totally crazy provision, as this opinion
understands, if you were not to reach a reconciliation of this sort,
this result was over-determined under Florida law. It might be true
that they said the Constitution also points this way, but there isn't
a sentence in the opinion that suggests that without that constitutional
argument, the result would have to be different.
JUSTICE BREYER: What is the November 26th date? Is that the seven-day
date moved, or is that some kind of a date that tries to reconcile the
ultimate point after which the secretary, in exercising her discretion,
no longer has to accept the late returns? Did it move the date from
the statute? Has it created a new date about this discretion? What is
it?
MR. TRIBE: Well, it looks to me like an exercise of "the chancellor's
foot," as it were, in this particular case. When I saw the date,
November 26th, I couldn't come up with an algorithm or a formula that
would generate it. But the court was confronted with the task of drawing,
as this court has recognized, what are sometimes inevitably arbitrary
lines. That is, it said it was not consistent with the overall scheme
of the statute to require these recounts, which had just begun, to terminate.
That truly would be a promise to the ear to be broken to the hope, like
the munificent bequest, Justice Jackson said, that is the pauper's will.
JUSTICE KENNEDY: If the --
MR. TRIBE: Why tell people the count if you won't count it?
JUSTICE KENNEDY: And if the legislature had jumped into the breach and
said this same thing, would that be a new statute or a new enactment
under 5 USC?
MR. TRIBE: I honestly, Justice Kennedy, am not sure, because the language
that I quoted from 3 USC, Section 5, focuses on the institutional dispute
resolution arrangement that is in place. And if you look at the legislative
history in the decade of hearings in the period after the Hayes-Tilden
debacle, that history focused on the importance of having a fixed tribunal
which you could look to rather than one cooked up at the last moment.
And indeed, what they seemed to be most afraid of was the political
entry of legislators and executive at the 11th hour. There was not focus
at all --
JUSTICE KENNEDY: But are you saying you can't tell us whether they,
in the hypothetical, supposed that it be a new enactment?
MR. TRIBE: Well, there certainly are no cases on the subject. The language
gives me very little guidance. Since the section is addressed to Congress,
neither my opinion about it nor the court's opinion is necessarily --
JUSTICE KENNEDY: You don't think you could tell us what you might advise
the Congress if you were the counsel for the Judiciary Committee?
MR. TRIBE: I think I would advise the Congress that it is not a new
enactment, that it is an entirely reasonable construction of an existing
enactment, as to which the only alternative construction is to make
it self-destruct and to make it internally contradictory. And I honestly
don't think, if I were advising Congress, that I would say it's a new
construction.
I do think also that some people reasonably could argue the contrary.
And I guess I think that this language should be interpreted, whether
by a court or by Congress, in a way that gives some deference to the
state government and its organs.
And I think any degree of deference here is inconsistent with saying
that there's been a federal violation, especially when -- I want to
remind us all about the context. Are we going to say that this paragraph
in this opinion says that Florida is in breach of Article II of the
Constitution in general? Hard to say -- I don't think so.
|
|
| |
Authority
of the legislature |
| |
JUSTICE O'CONNOR: Well there should, perhaps, be some deference, though,
to the concept expressed in Article II, that it is the authority of
the legislature, and some special concern about what the legislature
may have said.
MR. TRIBE: Yes, but if the legislature is entirely happy not to completely
delegate this power to the courts, which Article II would permit, but
rather to allow the courts to exercise a somewhat more flexible role
than the one that the critic of this opinion would be embracing, that's
within the power of the legislature of Florida.
JUSTICE O'CONNOR: Yeah, but who would have thought that the legislature
was leaving open the date for change by the court? Who would have thought
that?
MR. TRIBE: Anyone -- you can just read the statute in 1989 and it says
"may." It says she "may" reject the late returns.
JUSTICE BREYER: But that doesn't change the -- that's not the date.
MR. TRIBE: No, the date is the one from which the "may" is
measured. That is, you're supposed to get it in by seven days later.
What if you don't? Well, if you don't, she "may" or she "may
not" reject them. Now, anybody reading that would realize that's
a deadline only in a kind of Pickwickian (sp) sense. It's not a real
deadline. She's got discretion. Certainly if there's an act of God of
the sort Justice -- was it Justice Stevens -- asked about --
JUSTICE O'CONNOR: Well, then the secretary came in and argued and said,
yes, her discretion was if it were an act of God or a machine breakdown,
she would exercise her discretion.
MR. TRIBE: And it's an entirely normal exercise of judicial interpretation
to say that this statute is not limited to God and machines; that --
JUSTICE SCALIA: Professor Tribe, can I ask you why you think the Florida
legislature delegated to the Florida Supreme Court the authority to
interpose the Florida Constitution?
I mean, I -- maybe your experience with the legislative branch is different
from mine, but in my experience, they are resigned to the intervention
of the courts -- (laughter) -- but have certainly never invited it.
MR. TRIBE: Well, I'd have to say my experience parallels that.
JUSTICE SCALIA: What makes you think the Florida legislature affirmatively
invited the Florida Supreme Court?
MR. TRIBE: The odd thing is that the system in Florida involves their
own repromulgation of the Constitution. And their scheme with respect
to the resolution of disputes over elections draws a sharp distinction
between elections to their own House and Senate, which they won't trust
the courts with as far as they can throw them -- those are to be resolved
exclusively in the House and Senate -- and all others are to be resolved
in the courts under a standard that they, understandably --
JUSTICE SCALIA: They are resigned -- that they are resigned to. but
they need not be resigned to the Florida Supreme Court interposing itself
with respect to federal elections. They need not be because the Florida
Constitution cannot affect it. And I just find it implausible that they
really invited the Florida Supreme Court to interpose the Florida Constitution
between what they enacted by statute and the ultimate result of the
election.
MR. TRIBE: I suppose if they were at all far-sighted, if they looked
at their own work and saw how self-contradictory it was, they might
say, "We would want someone with the authority to reconcile these
provisions to do so in the light not only of the literal language but
of the fact that they're dealing with something very important, the
franchise; that disenfranchising people, which is what this is all about,
disenfranchising people isn't very nice, and it even violates the federal
as well as the state constitution."
JUSTICE SOUTER: But wouldn't Justice Scalia's suggestion be a stronger
suggestion if they had dealt by the statute only with federal elections
or only with the presidential election, as opposed to dealing with both
state and federal in the same statute?
MR. TRIBE: Well, it's not uncommon, given the convenience of having
similar regulations apply on Election Day, not to bifurcate. Oregon
v. Mitchell, after all, confronted the nation with the problem --
JUSTICE SOUTER: Right. But when they don't bifurcate, it's reasonable
to suppose that they expect their statute to be construed, number one,
as one statute, not as having different dates for different -- for state
and federal, and number two, to be construed, so far as the state concern
arises, in accordance with the state constitution.
And if that is so, then the result is they would expect a state constitutional
concern to inform their interpretation of a statute, which ultimately
governs federal as well as state.
MR. TRIBE: And they would recognize that when the federal election involved
the presidency of the United States, with the special problems of the
Electoral College deadline, they might emerge with rather different
deadlines and to some extent the differed approach for the -- to elections.
JUSTICE SCALIA: But there are already different deadlines for federal
elections, aren't there, because of the federal statute concerning overseas
ballots?
MR. TRIBE: Yes, that's entirely true.
JUSTICE SCALIA: So that's going to be different anyway.
MR. TRIBE: And there's an --
JUSTICE SCALIA: But that's different as a result of a federal law, isn't
it?
MR. TRIBE: Well, there is a consent decree arising out of federal law.
And there was a federal statute --
JUSTICE SCALIA: But it wasn't the legislature's choice, it was Congress'
choice that required that.
MR. TRIBE: That's right. In 1986, there was a Congressional statute
that already created that difference.
JUSTICE GINSBURG: Mr. Tribe, before you finish, I would like to know
whether you are conceding, because some of the things you said sound
like maybe you are, that the Florida legislature, under Article II,
Section 1, could say, "We don't want any judicial review of anything
about the manner in which we say electors should be appointed."?
Does the Florida legislature have the authority to cut out judicial
review?
MR. TRIBE: No, no. I certainly do think so. They cut out judicial review
-- and even this may not be entirely consistent with the Florida Constitution
-- they cut out judicial review for the election of their own members
in the House and Senate. I certainly don't think they would have the
authority to expel the federal judiciary from the election of senators,
representatives.
JUSTICE GINSBURG: I mean the state judiciary, the state judiciary.
When it says, "Each state shall appoint electors in such manner
as the legislature thereof may direct", may the legislature direct
as to the Florida Supreme Court, and, "Florida Supreme Court, we
don't want you to review whatever we do"?
MR. TRIBE: I'm not actually clear about that, Justice Ginsburg. I've
thought about it a lot. It seems to me that under Smyling v. Holme (sp),
similar cases, the general principle is that the constitution takes
the state government and its arrangement as it finds it, and that when
the legislature is identified, that really does not mean the legislature
in some specialized capacity, as with Article 5. Now, if that's the
case, and if it's therefore assumed that the legislature is surrounded
with both executive and judicial authority, then a decision by a legislature
to completely exclude the judiciary from any possible role -- the state
judiciary -- might be inconsistent with the underlying meaning of Article
II itself.
JUSTICE GINSBURG: Well, could the state legislature, at least now, say,
in light of all this confusion, we enact a law today saying this is
the way electors will be selected. Is that open to the legislature now?
MR. TRIBE: I'm not sure. That's very much like my inability to answer
because I honestly have not reached a conclusion that it's not presented
by this case. I don't know whether the legislature could do the further
thing of naming electors, and if it --
JUSTICE REHNQUIST: Thank you, Mr. Tribe.
MR. TRIBE: Thank you, Mr. Chief Justice.
|
|
