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DECEMBER 1, 2000



BOSLEY: The honorable, the chief justice and the associate justices of the Supreme Court of the United States. 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.

REHNQUIST: We'll hear argument this morning in Number 00836, George W. Bush v. The Palm Beach County Canvassing Board.

Mr. Olson?

OLSON: And may it please the court. Two weeks after the November 7 president 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 7.

These laws have been formulated by the Florida legislature pursuant to an expressed 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.

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?

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...

O'CONNOR: Yes, but I would have thought it was a section designed in the case 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 would be independently enforceable.

OLSON: That's why I 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 what...

KENNEDY: What they did was -- and it's typical of the grant and 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.

OLSON: Justice Kennedy, I submit that it is much like a compact that Congress is offering 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 to provide the benefit to the states, but to provide the benefit to the United States of the states accepting that implicit...

KENNEDY: Well, what is there, in the opinion of the Supreme Court of Florida, that indicates that it relied on this federal statute, in that reasoning for its decision and in its judgment.

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 -- a code of election procedures to 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...

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.

OLSON: Well, I certainly agree that it mentioned those provisions. I'm 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 counted by Congress, but we will not have the controversy, dispute and chaos that's been taking place in Florida since then.

SCALIA: Mr. Olson, suppose a less controversial federal benefit scheme. Let's say the scheme that says states can get highway funds if they hold their highway speeds to a certain level, all right?

SCALIA: And suppose you have a state Supreme Court that, in your view, unreasonably interprets a state statute as not holding the 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 a state court decision here, because it deprived the state of the benefit of the highway fund?

OLSON: No, I don't think so.

SCALIA: Why is this any different?

OLSON: This is a great deal different, because this is the -- 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 court has stated...

SCALIA: Well, let's just talk about Section 5. I mean, the constitutional questions and other -- why is Section 5, in that regard, any different from the highway funding?

OLSON: 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 a state. And Section 5 implements Article II, in the sense that it provides a benefit, not just to the state, but to the voters of this county.

KENNEDY: But just talk about the statutory issue. 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. Did Indiana v. -- that kind of thing. Did that happen here?

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...

KENNEDY: Well, then there's no federal constitutional issue here.

OLSON: Well, there is a federal...

KENNEDY: I mean statutory.

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 3 -- 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...

REHNQUIST: Mr. Olson, do you think that Congress, when it passed 3 U.S.C., 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.

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's selection of electors, that it is a somewhat empty remedy, and it doesn't accomplish Congress' objectives if it cannot be enforced when an agency of the state government steps in, as the Florida Supreme Court did here, and overturn the plan by which the Florida legislature carefully set forth a program so that so that disputes could be resolved, and we wouldn't have the controversy, conflict and chaos that we submit exists today in Florida.

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?

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...

STEVENS: Yes, and the first one was the mandatory -- is it your view still that the "shall" date controls, in all respect?

OLSON: No, not necessarily. The two provisions are...

STEVENS: 111 and 112.

OLSON: .... Section 102.111 and 102.112.


OLSON: 111 contains the "shall" date; 102 contains the "may" date.

STEVENS: Correct.

OLSON: Both of those statutes, both of those provisions say that the returns "must be" or "shall be"...


OLSON: ... 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.

STEVENS: Does that mean that 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?

OLSON: Yes. I believe...

STEVENS: She would have that discretion? Would she be compelled, in that event, to accept the returns?

OLSON: I don't think so. She took the position...

STEVENS: She has the total discretion, either to accept or reject?

OLSON: That's...

STEVENS: Is there any circumstance in which she would be compelled to accept a late return?

OLSON: I don't know of any. I haven't thought of any, Justice Stevens.

STEVENS: Well, you're arguing, in effect, that it's a mandatory deadline. I wonder if you really mean it's mandatory.

OLSON: Well, the problem is that -- what we're saying is that either it's mandatory, in which case she could not accept them...

STEVENS: But you don't know whether it's mandatory or not?

OLSON: Well, the Florida Supreme Court and -- what the circuit court did in that case, it said that it wasn't -- we'll accept this, for purposes of this argument, that it wasn't...

STEVENS: Yes, 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.

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."

STEVENS: Under any circumstance, it was not "must"?

OLSON: Under no circumstances was it "must accept." Now the second...

STEVENS: Even an act of God or fraud?

OLSON: I don't believe so.

BREYER: Isn't the law in Florida like as in most states and in 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?


BREYER: 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?

OLSON: Well, what the court did was so constrain those circumstances, to virtually make them nonexistent...

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.

OLSON: I think that -- yes, but I that 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 p.m. on November 26, and in the context there was no discretion left for the secretary of state at all...

GINSBURG: Mr. Olson, may I ask -- of course, 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 from when you can ask a recount is on the sixth day.

OLSON: Up to.

GINSBURG: Yes, up to.

GINSBURG: And if it would be impossible in a populous county to, in one day, do what the statute instructs must be done, then there's a recount.

The Florida Supreme Court said, it said right in its opinion, there's two conflicts, and the first one they mention, straight out on page 21-A of your appendix, that there has to be a reconciliation between this "Yes, there can be recounts, and yes, there's is a deadline." So there are trying to reconcile two provisions.

OLSON: The first part of the recount provision, to which your 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's supposed to go forward with a more fulsome process.

But the legislature, being fully aware of the recount provisions and the importance of -- 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 an 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...

GINSBURG: But that's something that one can 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 and...

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 a state supreme court or a state court decision under certain circumstances. We submit this is one.

What the Florida...

GINSBURG: But have said in even the very cases that you cite, as I checked them, that we owe the highest respect to the state court when it says what the state law is.

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."

KENNEDY: Did the secretary have any flexibility to accommodate the statute to the exigencies of the presidential election?

OLSON: Well, the secretary...

KENNEDY: The secretary of state.

OLSON: The secretary of state did. It doesn't -- she doesn't much anymore, because what has happened -- and I'd 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 power."

And among the things that the court did -- and there are range of them, as I have indicate -- they took the discretion of the secretary and instructed her to accept these manual recount returns...

STEVENS: Well, Mr. Wilson, 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.

OLSON: No, it wouldn't have been. But what...

STEVENS: And on the fight between "may" and "shall," they relied on four traditional canons of statutory construction and not equity at all.

OLSON: They recited four canons of statutory construction, Justice Stevens, but when they said they used those 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 it's relatively obvious that what the Supreme Court did is exactly what Section 5 of Article III intends not to happen, change the rules...

STEVENS: 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.

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...

SCALIA: That was not on the basis of any canons of statutory construction. That was on the basis of the state's constitution.

OLSON: Well, that's right. 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 said.

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 but it may have been wrong, we might have interpreted it differently, but we are not the arbiters, they are?

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 an exercise of power that is vested by the Constitution of the United States...

GINSBURG: But if it tells us -- if it tells us, "We see these two provisions in conflict, they need to be reconciled"?

OLSON: But 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.

OLSON: And so, therefore, this court has a greater responsibility...

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's some issue of federal law here, otherwise why are we acting.


O'CONNOR: And are you relying in that regard on Title 2 -- I mean, would you like to -- Article II -- would you like to characterize the federal issue...

OLSON: Well...

O'CONNOR: ... that you think governs this?

OLSON: ... 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 and 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 the state judiciary. And we, quote -- 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 -- vested that authority under Article II, not just in the state...

KENNEDY: ... legislature could vest it in the judiciary if it wanted, as I read the McPherson case. And here they've done something less. The state judiciary 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.

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.

SOUTER: All right, 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. 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.

And 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.

SOUTER: 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?

OLSON: Because I submit that that writes Section 5 essentially out of existence if an agency of state government -- if a state...

SOUTER: No, it doesn't write it out of existence. It provides in Section 15 what happens if the state agency does what you say it did.

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...

SOUTER: Well, you say you have ultimate resort, but that begs the question. That seems to be precisely the resort that Congress has provided.

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 avoid the chaos and the conflict and the controversy and the unsettled situation that this country faced in 1876.

SCALIA: Mr. Olson, did Section 15 exist when McPherson was decided?

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...

SCALIA: Well, that would make a difference, wouldn't it?

OLSON: Well, it seems to me it wouldn't make a difference because of this. It might -- yes, it certainly might make a difference one way, but it still wouldn't make a difference, because our concept here, and I think it's quite a rational and actually the only explanation for how you can put these provisions together, Article II and Section 5, and Congress' desire to avoid the very controversy, chaos, conflict, which even...

SCALIA: Well, but Section 15 assumes that there is controversy and chaos.

OLSON: Yes. And...

SCALIA: Section 15 isn't providing for challenges, except in situations perhaps exactly like this one.

OLSON: But that's what the country -- what essentially Section 15, although it modifies it and structures it somewhat, was still the situation that Congress was facing in 1876 when it was dealing with the Hayes-Tilden election.

SOUTER: Right. But the Congress...

OLSON: And by the time it got there, there were dueling slates of electors. They were buying -- there were exchanges and a lot of things that everyone felt was very destructive to the country.

SOUTER: But Congress had to face the constitutional fact that, under Article II, it could not -- or its understanding was, certainly, that it could not mandate certain state procedures. Article II did say the legislature shall decide what they are.

OLSON: Correct.

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 is provided 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.

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 proceeding the Section 15 preceding.

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 the courts are here to protect the benefit of the bargain that Florida made when it responded to that invitation...

SOUTER: Well, if...

OLSON: ... because...

SOUTER: We have to separate your statutory argument form 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?

OLSON: No, I don't think so.

SCALIA: 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 judicial or that this court has some how 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?

OLSON: That's not a fair reading of Section 5. And let me answer this question on it, I'd like with the court's permission to...

SCALIA: No, that...

OLSON: ... reserve the chance...

SCALIA: I don't think Section 5 goes to the issue. The question is whether it's a fair reading of Section 15.

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 having to resolve this in Congress, which is exactly what did happen in the 1876 and was a very unsatisfactory situation.

SOUTER: And in 1876, Congress did not have the rules with respect to conclusiveness that it now has under Section 5.

OLSON: That's right. And it put those rules with respect to conclusiveness 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 the time.

REHNQUIST: Very well, Mr. Olson.