Excerpts from U.S. Supreme Court Hearing
Dec. 11, 2000
.c The Associated Press
THEODORE OLSON, Bush campaign attorney: Just one week ago, this court vacated the Florida Supreme Court's November 21 revision of Florida's election code, which had changed statutory deadlines, severely limited the discretion of the state's chief election officer, changed the meaning of words such as ''shall'' and ''may'' into ''shall not'' and ''may not,'' and authorized extensive, standardless and unequal manual ballot recounts in selected Florida counties.
Just four days later, without a single reference to this court's December 4 ruling, the Florida Supreme Court issued a new, wholesale, post-election revision of Florida's election law. That decision not only changed Florida election law yet again, it also explicitly referred to, relied upon and expanded its November 21 judgment that this court had made into a nullity.
JUSTICE ANTHONY M. KENNEDY: Can you begin by telling us our federal jurisdiction? Where's the federal question here?
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 3 of federal law.
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 agency--it seems to me a holding which has grave implications for our Republican theory of government.
OLSON: Justice Kennedy, the Constitution specifically vested the authority to determine the manner of the appointment of 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 of the state.
KENNEDY: Then why didn't it do that here?
OLSON: It 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.
JUSTICE SANDRA DAY O'CONNOR: But you think then there is no appellate review in the Supreme Court of what a circuit court does?
OLSON: Certainly, the legislature did not have to provide appellate review.
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.
OLSON: Well, 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 an appellate jurisdiction. It may not be the most powerful argument we bring to the Supreme Court.
KENNEDY: I think that's right.
OLSON: Because, notwithstanding--well, the fact is that the Constitution may have been invoked...
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.
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 it may inform the reading of statutes crafted by the legislatures 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--rather than to say there's no judicial review here in Florida.
OLSON: I think that I don't disagree with that, except to the extent that I think that the argument we've 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.
JUSTICE JOHN PAUL STEVENS: And is it critical to your Article II argument that we read the word ''legislature'' as narrowly--I mean, the power granted the legislature as similar to that granted in Article 5 of the Constitution?
JUSTICE ANTONIN SCALIA: Well, it's pretty close. You can say it could be interpreted that way by the Florida Supreme Court, I suppose. Do you think it must be? Or is your point that even in close calls, we have to revisit the Florida Supreme Court's opinion?
OLSON: No, 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 would be unfortunate to assume that the legislature devolved its 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...
OLSON: ... 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.
STEVENS: But is it the choice of the legislature or 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?
OLSON: No, Article II, we do not contend that Article II would prohibit ... In the context of this case, we're saying that they can include the judicial branch when they wish to do so, but 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...
STEVENS: Mr. Olson .. 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?
OLSON: Well, I think that the dissenting 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 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.
OLSON: After the decision of December 8, in this context, those remand provisions--I mean those 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 DAVID H. 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.
OLSON: Well, to read that provision--it's written quite broadly. One has to read that in the context of the entire statutory framework. If one reads it the way the Florida Supreme Court did, the entire process is tilted on its head. Where there used to be the 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...
SOUTER: What's the timetable in 168?
OLSON: There's no timetable...
SOUTER: That's right, there is no timetable there, so that seems to undercut your timetable argument once you get into the contest phase from the protest phase.
OLSON: Well, I think--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.
SOUTER: It may well be, and I, you know, I will 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 a 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.
OLSON: Well, I am hoping to convince you that they passed far beyond the normal limits of statutory construction. The changing of the meaning...
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 has simply become a nonjudicial act. It may or may not be good statutory construction, but I don't see the...
OLSON: It is, we submit, an utter revision of the timetables, the allocation of...
SOUTER: But, Mr. Olson, we're back to the--there is no timetable in 166.
OLSON: That's correct.
SOUTER: And what your argument boils down to, I think, is that they have insufficiently considered--I'm sorry, 168--that they have insufficiently considered 166 in construing 168. And you may be right, but you have no textual quote in 168 to say untethered timetables imply, in effect, a nonjudicial act.
OLSON: We're not just saying timetables. 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 timetable. The fact that there are timetables, 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...
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.
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 effect...
SOUTER: And it took that into consideration in fashioning its orders under Subsection 8.
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.