US Supreme Court
Bush v. Palm Beach County Canvassing Board (part 2 of 2)

December 1, 2000



HANCOCK: Mr. Chief Justice, and may it please the court. In accordance with Article II of the United States Constitution, the Florida legislature has directed the manner of selecting presidential electors in Florida. That manner is pursuant to a popular vote that's implemented pursuant to the general election laws of the state of Florida.

O'CONNOR: I guess, Article II permits the legislature, in general, to make the choice it could itself select the electors.

HANCOCK: Yes, Justice O'Connor, we agree with that.

In implementing the election law, each branch of the Florida government plays a role. For example, the executive branch of our government has not found itself bound by the technical -- hypertechnical requirements of the election law. An example of that is that the executive branch has implemented a rule -- not a law, but a rule -- that allows absentee ballots from overseas military voters that we receive up to 10 days after the close of the polls.

Under the law of the state of Florida, all absentee ballots have to be received by the time the polls close on Election Day.

KENNEDY: But in your brief you conclude that the Florida Supreme Court -- I think it's page 12 -- like any state court, exercises inherent equitable powers to remedy a threat to fundamental constitutional rights. And it rewrote the certification deadlines according to that power, did it not?

HANCOCK: The only -- yes, Justice Kennedy. The only equitable power exercised by the court was setting the deadline.

KENNEDY: Isn't that such an amorphous, general, abstract standard that it can't possibly be said to be a law that was enacted and in place at the time of the election?

HANCOCK: Now, the laws were enacted well before the election. What happened was that, in the court...

KENNEDY: Of course the Constitution is there before the election, the due process clause was before the election, but what we're talking about is having laws with sufficient specificity and stability that people can rely on them in advance and not have them changed after the fact.

And your brief makes it very clear that they exercised their inequitable powers to remedy a threat to fundamental constitutional rights and change the deadline accordingly. It seems to me that's no -- it's an enviable standard, something we probably all agree with in the end. But so far as the requisite specificity dissatisfied, 3 U.S.C., Section 5, I just don't see that it's there.

HANCOCK: The court had to do something, Justice Kennedy. It was faced with conflicts in Florida law. They had conflicting opinions from the Florida attorney general as to the meaning of the law and the secretary of state as to the meaning of the law. As a result of those...

KENNEDY: Maybe it had to do something, but did it comply with 3 U.S.C., Section 5?

HANCOCK: I submit, Justice Kennedy, that 3 U.S.C., Section 5, doesn't require the state to do anything. It merely says...

KENNEDY: But did it comply with that part of 3 U.S.C., Section 5, that requires that laws be enacted and in place prior to the election in order to get the safe harbor?

HANCOCK: Yes, it did. The laws were in place before the election, and those laws granted to the judiciary the...

O'CONNOR: Well, but certainly the date changed. That is a dramatic change, the date for certification.


O'CONNOR: Right? And it was done by the court?

HANCOCK: Yes, it was done...

O'CONNOR: And the legislature had very clearly said, you know, seven days after, that's the date. And it just does look like a very dramatic change made by the Florida court. And I'm wondering if that is consistent, in fact, with the notion expressed at least in Section 5, so that the result would be if it did go to Congress, it would be a change?

HANCOCK: I agree that the date was implemented pursuant to the court's equitable powers. Other than that, it was a routine exercise in statutory construction. The court was faced with a situation, first of all, where because of conflicting advice, the counties had started and then stopped conducting manual recounts, because of advice from the secretary of the state, which the Supreme Court ultimately concluded to be erroneous.

SCALIA: And that advice was -- and this was really the beginning of all of the problems -- her advice was that the provision providing for recounts, manual recounts, not requiring them, but given as one of the options, only came into play when there was some defect in the machinery.

SCALIA: And it was not available for voter error; that is, for voters who didn't punch the cards the way they were supposed to. And your office came out with the opposite conclusion.

The secretary's brief contends that that had always been the rule in Florida. Is that the case? Do you know of any other elections in Florida in which recounts were conducted, manual recounts, because of an allegation that some voters did not punch the cards the way they should have, through their fault? No problem with the machinery, it's working fine, but, you know, there were, what, pregnant chads, hanging chads, so forth.

HANCOCK: No, Justice.

SCALIA: Did it ever happen before...

HANCOCK: I'm not aware of it ever happening before. But I can say that the Supreme Court of Florida for 100 years has put a duty on election officials to discern the intent of the voter. And while the secretary of the state refers to it as voter error, when the ballot is punched, under the laws of the state of Florida as interpreted by the Supreme Court, that voter has cast a ballot, even if the chad did not...

KENNEDY: Excuse me. Is it your position that any interpretation the Supreme Court of Florida makes to implement the will of the people is never a new law?

HANCOCK: Yes, I can't say ever, but I'd say on the case before the court, all that was before the court was ordinary statutory construction which must be -- the result of it, whether this court would agree with it or disagree with it, must be respected by this court. That's the very foundation of federalism.

GINSBURG: Mr. Hancock, are you relying on the Florida Supreme Court's statement, at least twice in its opinion -- now I looked at the page to which Mr. Klock referred, page 37-A -- it says for the second time that section -- the section governing manual recounts appears to conflict with the sections that set a deadline, and it's reconciling that conflict.

HANCOCK: Yes, that's...

GINSBURG: Whether it was wrong or right, that's what it said its mission was, and that's what it did.

HANCOCK: Yes. Both in words and in operation, the statutes could not work together because of the time for requesting manual recount, the extent of the job of manual recounting...

SCALIA: What is the section that requires manual recounts?

HANCOCK: It's 102 -- well, 102.166 authorizes manual recounts.

SCALIA: That's different from requiring.

HANCOCK: Yes. But once it starts, Justice Scalia, once it's authorized, if the initial sample recount shows an error that might affect the outcome of the election...

SCALIA: Then...

HANCOCK: ... the board is then required to, among other things, conduct a full manual recount.

SCALIA: No, it's required to do one of three things, one of which could be a manual recount.


SCALIA: It could decide to do one of the other two instead.

HANCOCK: Yes. The problem faced by the counties...

SCALIA: So there is -- I mean, the court says that there's a requirement of a manual recount, but I don't see anything in the text of the statute that requires a manual recount.

HANCOCK: The statute requires that the election officials attempt to discern the cause of the error. Here the cause of the error was that, in these counties, was that the machines were not able to read ballots.

HANCOCK: Ten thousand ballots in Palm Beach County, the machine did not read as including a vote for president. That was the issue, so that the solution to that was not the machines, even when they're operating properly, would not read these ballots. So what was left to the county canvassing board then was to do the full manual recount, and the language of that statute, again, says they "shall" do a full manual recount in those circumstances.

O'CONNOR: Well, it says that the board "may" authorize the manual recount. It doesn't require it. But if it does authorize it, then it tells them how to do it and says they shall appoint as many counting teams as necessary, presumably as necessary to do it within the time limit.

HANCOCK: Yes, Justice O'Connor, but, again, under the law these requests can be made up to the time of canvassing, that means up to six or seven days. And also, the number of ballots at issue here are between 650,000 in Palm Beach County, and also 900,000 -- up to 900,000 in Broward County.

SCALIA: Well, if that is a statutory problem, the court's resolution didn't really solve it, did it? Because even with her extended time period, the same statutory problem exists. There still isn't enough time, under the extended deadlines, for some of these counties that have an enormous number of votes to conduct a manual recount; isn't that right?

HANCOCK: Well, let me...

SCALIA: I mean, to resolve a supposed conflict in the statute in a manner that leaves in place the same problem that existed before seems to me not a real resolution of the statutory problem.

HANCOCK: Well, the Supreme Court tried to blend it all together to make it work, Justice Scalia. And, again, it came up with a solution.

HANCOCK: The secretary of state's argument here is based on -- the secretary of state herself recognized that she had the discretion under Florida law to accept returns filed outside of that seven-day deadline. A breakdown of the machines, in her view, would justify late returns. A failure of the machines to read ballots would not justify late-filed returns.

The Supreme Court said that the legal standard she was using was wrong. We submit that that decision of the Supreme Court is the law in the state of Florida.

REHNQUIST: I'm going to extend your time two minutes, Mr. Hancock, because you haven't had a chance to say a lot yet.


HANCOCK: Well, I will -- I don't need the extension time, Your Honor. If there's no other questions, I will stop. Thank you.

REHNQUIST: Thank you.

Mr. Tribe, we'll hear from you.

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.

TRIBE: And then the question is: How do you develop great, sort of, greater certainty? And a rather common technique is a recount, sometimes a manual recount, sometimes taking more time. It'd be rather like looking more closely at the film of the photo finish. It's nothing extraordinary, it's not like suddenly moving Heartbreak Hill or adding a mile or subtracting a mile from...

KENNEDY: You're saying, no important policy in 3 U.S.C., Section 5?

TRIBE: No, no.

KENNEDY: In fact, we change the rules after. It's not important in popular culture.

TRIBE: Certainly, not, Justice Kennedy. But I read U.S.C., Section 5 -- that is 3 U.S.C., 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 other, that all of the laws must stay fixed in order to have the safe harbor apply -- those as I'll try to argue in a few minutes -- that's really not a question for this court, but rather for the Congress.

But the language of Section 5 is that -- and I'll just read what I think are the key words -- "if a state...

SOUTER: Can you tell us where you're reading from.

TRIBE: Actually, I'm just reading from a copy of the U.S. Code, 3 U.S.C., Section 5, not from any -- a page I can identify directly...

SOUTER: It's in the appendix to the petitioners brief, I'm sure, isn't it?

TRIBE: Yes, although I'm afraid I don't have it in front of me.

SOUTER: Page 3-A of the blue brief.

TRIBE: Thank you, Mr. Souter.

Page 3-A of the blue brief, I am reliably informed.

(LAUGHTER) TRIBE: So, if any state...

REHNQUIST: It won't get you an extra two minutes.


TRIBE: Well, I tried, I tried.

TRIBE: "If any state shall have provided," and then it says, "by laws enacted prior to the day fixed 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 12, "then the final determination shall be conclusive and govern the counting in Congress."

Now, the question for Congress, I supposed, 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 exiguous circumstances because a recount has been authorized a change in the judicial or methods of procedures for resolving the contest.

REHNQUIST: Let me ask you just a moment, 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 over...

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 Fitzgerald 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.

KENNEDY: No, it certainly was quite different from...

TRIBE: Very.

KENNEDY: ... this hypothetical.

TRIBE: That's certainly right.


KENNEDY: You suggest in your reply brief that it is -- I think you said it's 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 think about justiciability, we must be very careful to preserve the role of the court?

You have said that the -- or suggested here 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 U.S.C., Section 5.

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 here. That paragraph was intended to suggest that it's not obvious that, in 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 tired of all this counting; we've moving in," and that this court cannot decide whether the conditions of 3 U.S.C., 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.

KENNEDY: And my point is that puts hydraulic pressure on your nonjusticiability argument and makes it a very, very important argument and a critical argument in this case.

TRIBE: Well, perhaps, Justice Kennedy, but I, frankly, can't see how it would affect the decision in this case. That is, 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 intentioned.

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.

TRIBE: Well...

O'CONNOR: 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.

TRIBE: Well, Justice O'Connor, I certainly agree that if the Florida Supreme Court adverted to 3 U.S.C., Section 5, and, as Justice Kennedy asked earlier, got it wrong, then there would be a federal issue for this court.

O'CONNOR: Well, is there a federal issue if the court doesn't...

TRIBE: No. The answer is no.

O'CONNOR: ... advert to it.

TRIBE: It would be nice. But remember, it is...

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...

TRIBE: I'm sure...

O'CONNOR: ... by enacting laws. And perhaps the Florida court has to be aware of the consequences to the state of changing the rules.

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...

O'CONNOR: Well, it certainly did by enacting that date. "Here is the certification date." How could it have been clearer?

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.

TRIBE: But only a violation of federal law. I don't see how you get a...

REHNQUIST: What Florida law would that...

TRIBE: Of state law, I'm sorry.

REHNQUIST: Are you talking about the Florida constitution?

TRIBE: Well, it might have been a violation...

REHNQUIST: But then you'll run into the Blacker case.

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 invitation to the state."

REHNQUIST: But it can also arise under the section of the Constitution that was construed in Blacker. That's quite independent of 3 U.S.C.

TRIBE: But, sir, if one concluded that Florida had violated its duty to empower the legislature to take these regulatory steps...

REHNQUIST: If one concluded that the Florida legislature had relied on the state constitution in a way that the Blacker case says it may not in construing the statute.

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...

REHNQUIST: That's what we've been arguing here, as to whether it doesn't.

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.

TRIBE: Now, if the answer to that question was no, perhaps if there were a due process issue in this case, and 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 3 U.S.C., Section 5 is all carrot and no stick.

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.

TRIBE: Well, that they can never advert to their own constitution? I don't think so.

REHNQUIST: Well, certainly it stands to the proposition you couldn't do it then, in those circumstances.

TRIBE: What would it be, I wonder, about the circumstances here that would say that in reconciling these provisions -- 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...

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 traditional principles, resolve it one way or the other."

REHNQUIST: 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."

TRIBE: It seems to me that as a tiebreaker, 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...

SCALIA: Mr. Tribe, 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 this statute.

If you look at this opinion, it separated it to include various sections, issues, legal -- four, a legal opinion of 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 sections concludes, under this statutory scheme, the county canvassing boards are required to submit their returns to the department by 5 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 determination date of December 7 and discretion in the secretary.

SCALIA: 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 rights 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. 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.

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, that is what McPherson seems to suggest. Then can it not delegate something less? That is, 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 repromulgates the Constitution every several years, and then it's ratified by the people.


SOUTER: Isn't there another way of looking at what the Florida court did, and that was in effect to apply the statute to 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...

TRIBE: Right.

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? Can you look at it that way?

TRIBE: I fully accept that view, Justice 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 reasonable go either way this court simply said, "We don't care about the 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 contests.

TRIBE: That December 12 deadline comes purely from federal law.

BREYER: 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...

TRIBE: That's right.

BREYER: The 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 said Blackstone's selecting the electors, right?

TRIBE: I think that...

BREYER: All right. Now, suppose they said we reached this decision based on the values found in the Constitution. That would be like Blackstone.

TRIBE: I think that's right.

BREYER: Suppose they say, "Well, the legislature wants us to do X, but our constitution requires to do not X." That might be different.

TRIBE: It might be different...

BREYER: Now, what is it that they've done here?

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...

SCALIA: 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 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.

SCALIA: I mean, they were almost constrained to use the Constitution to override the firm deadline that was explicitly set forth in...

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: "In 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 it would amaze -- I would think amaze this court to see anyone saying that because an opinion was organized under Roman numeral headings...

SCALIA: And Professor Tribe...

TRIBE: ... in such a way that...

SCALIA: Isn't it also true, Professor Tribe, that Part 8 of the opinion relies on four things: the Florida Constitution, earlier Florida decision-construing statutes, an Illinois case and a federal case...

TRIBE: Absolutely.

SCALIA: ... but not just the Illinois...

TRIBE: That's right.

SCALIA: ... their Constitution.

TRIBE: And surely if...

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?

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 sections -- with the seventh day?

TRIBE: Exactly.


TRIBE: And I guess to take a...

GINSBURG: And 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 and one that isn't, all of our decisions suggest that we read the one...

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 as though one cannot explain the result this court reached in the most conventional, standard ways.

TRIBE: And the fact that...

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 these 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 to that.

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?

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. Now they might have...

TRIBE: No, but, Justice Scalia...

SCALIA: ... tried it another way, but its seems to me they didn't.

TRIBE: But they also say that the provision that reaches the result that conflicts with the authorized recounts was written in 1951, but 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.

TRIBE: That would be a totally crazy provision.

As this opinion understands, if you are 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.

BREYER: What is the November 26 date? Is that the seven-day date rule or is that some kind of 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 statue, has it created a new date about this discretion, what it is?

TRIBE: Well, it looks to me like an exercise -- the chancellor's foot, as it were, in this particular case. When I date, November 26, 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 have just begun to terminate.

TRIBE: That truly would be a promise to the ear to be broken to the hope, like a munificent bequest, just as Jackson said in his pauper's will.

KENNEDY: If the legislature...

TRIBE: Why tell people to count if you won't count it? And...

KENNEDY: If the legislature had jumped into the breach and said this same thing, would that be a new statute or new enactment under...

TRIBE: I honestly, Justice Kennedy, am not sure, because the language that I quoted from 3 U.S.C., 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 executives at the 11th hour. There was no focus at all...

KENNEDY: But, are you saying you can't tell us whether they, in the hypothetical, supposed that it would be a new enactment?

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...

KENNEDY: But you don't think you could tell us what you might advise the Congress if you were the counsel for the Judiciary Committee?

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.

TRIBE: 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.

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.

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.

O'CONNOR: Yes, but who would have thought that the legislature was leaving open the date, or changed by the court? Who would've thought that?

TRIBE: Anyone. Just read the statute in 1989, and it says "may." It says she may reject the late returns.

BREYER: But that doesn't change the -- that's not the date.

TRIBE: Yes, but 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?

TRIBE: 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 sense, it's not a real deadline. She's got discretion. Certainly if there's an act of God of the sort -- was it Justice Stevens asked about...

O'CONNOR: Yes, 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.

TRIBE: And it's an entire normal exercise of judicial interpretation to say that this statute is not limited to God and machines, that...

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, maybe your experience with the legislative branch is different from mine, but in my experience they are resigned to the intervention of the courts...


... but have certainly never invited it.

TRIBE: Well, I'd have to say my experience parallels that.

SCALIA: But what makes you think the Florida legislature affirmatively invited the Florida Supreme Court?

TRIBE: The odd thing is that the system in Florida involves their own re-promulgation of the constitution.

TRIBE: 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...

SCALIA: 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.

TRIBE: Well, I suppose if they were at all farsighted, 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.

The disenfranchising people, which is what this all about, disenfranchising people isn't very nice.

SOUTER: But wouldn't you...

TRIBE: They violate the federal as well as the state constitution.

SOUTER: But wouldn't Justice Scalia's suggestion be a stronger suggestion if they had dealt by this statute only with federal elections or only with the presidential election as opposed to dealing with both state and federal in the same statute?

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 a problem...

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 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.

TRIBE: And they would recognize that when the federal election involves the presidency of the United States, with the special problems of the Elector College deadline, that they might emerge with rather different deadlines and to some extent a different approach for the two elections.

SCALIA: But there are already different deadlines for federal electors -- aren't there? -- because of the federal statute concerning overseas ballots?

TRIBE: Yes, that's entirely true.

SCALIA: So, I mean, that's going to be different anyway.

TRIBE: And there's an...

SCALIA: But that's different as a result of federal law, isn't it?

TRIBE: Well, there is a consent decree arising out of federal law. There was...

SCALIA: But it wasn't the legislature's choice. It was Congress' choice that required that.

TRIBE: That's right. In 1986 there was a congressional statute that already created that difference.

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?

TRIBE: No, no, I certainly don't think so. They cut out judicial review then 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 that it would have the authority to expel the federal judiciary from the election of senators or...

GINSBURG: I mean 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?

TRIBE: I'm not actually clear about this, Justice Ginsburg. I've thought about it a lot. 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 has some specialized capacity, as with Article V.

TRIBE: 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 the legislature to completely exclude the judiciary from any possible role -- the state judiciary -- might be inconsistent with the underlying meaning of Article II itself.

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"? Couldn't -- is that open to the legislature now?

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, that's naming electors. And if it...

REHNQUIST: Thank you, Mr. Tribe.

TRIBE: Thank you, Chief Justice.

REHNQUIST: Mr. Olson, you have four minutes remaining.

OLSON: Thank you, Mr. Chief Justice.

May it please the court, it seems to me that it's very difficult to read the Florida Supreme Court decision as saying anything else other than the Florida Constitution, in their view -- in that court's view, is trumping everything else.

OLSON: The second paragraph of the conclusion says, "Because the right to vote is the preeminent right in the declaration of rights of the Florida Constitution" and so forth. This opinion is full of language...

BREYER: Wouldn't they -- I suppose they'd referred to the Declaration of the Rights of Man, 1789, the French Revolution. I mean the right to vote is a value in the Constitution. Are they actually saying -- I didn't see it.

OLSON: They're saying...

BREYER: The statute means one thing, but the statute's unconstitutional because the constitution of Florida says the opposite? I didn't see that.

OLSON: I think that the only reasonable, fair reading of the decision is that the Florida Supreme Court felt that -- and it says it over and over again -- that we are going to attempt to discern the will of the people, the will of the electorate and discern and enhance in whatever way we possible can the right to vote.

And because of that, these provisions of the statute, which are very much quintessentially legislative, the timetables that are involved in this statute, particularly the November 14 deadline, is a part of a composite package. There's one week for a protest and certain recounts to the extent that they can be done, and there are four weeks for contests.

When the Florida Supreme Court truncated -- when the Florida Supreme Court expanded the protest period from seven days to 19 days, it necessarily limited the contest period to a shorter period of time. It changed the discretion. It allowed certain things to occur that couldn't have occurred. And it justifies all of those things on the grounds that the Florida Supreme Court -- the Florida Constitution trumps those legislative concerns.

OLSON: And that's why it said we are not going to be dissuaded by hypertechnical statutory considerations. So the court was doing what this court said in the McPherson v. Blacker case that it cannot do, is allow itself to insert itself or the Florida constitution above what is required by Article II, Section 1 of the Constitution.

It also seems to me quite evident, in response to what Justice Kennedy was asking earlier, that there was concern about the federal statutory provision. The language to which I think Justice Kennedy was referring is on page 32-A of the appendix to the petition from the court's decision. And there's a footnote there that does refer to reference to 3 U.S.C. 1 through 10, which of course includes Section 5, and it says so in conjunction with the statement that the exercise of the discretion by the secretary of state could not be done in such a way that would preclude Florida voters from participating fully in the federal electoral process.

The court was assuming, it seems to me, that it did not -- was not conflicted, the decision it was rendering was not going to cause a conflict with the federal statutory scheme, and it was, we submit, in error in that regard.

So to sum up, with respect to this, the Florida Supreme Court radically changed the legislative scheme because it thought it could do so under the Florida constitution.

OLSON: By doing so, it acted inconsistently with Article II of the Constitution and inconsistently with Section 5 of Title 3 and it has brought about precisely the circumstances that Section 5 -- Section 3, Title 3, was designed to avoid.

GINSBURG: If I had looked in the conclusion, the paragraph on page 37-A, with a summarized -- what they said -- there's nothing there about the Florida constitution, it's only about the Florida election code. They say they must construe the Florida election code as a whole and they point out the provisions in conflict. There's not one word in that paragraph that says anything about the Florida.

OLSON: The very second paragraph refers to the Florida constitution and the rights to vote, page 36-A of the appendix to the petition.

REHNQUIST: Thank you, Mr. Olson.

The case is submitted.

BOSLEY: The honorable court is now adjourned until Monday next at 10:00.