Excerpts from yesterday’s oral arguments before the U.S. Supreme Court over the presidential election.
Justice Anthony M. Kennedy: The Supreme Court of Florida said that … it was cognizant, and the legislature was cognizant, of 3 U.S.C. Section 5. And for convenience’s sake, let’s call that “new law.” …
Cognizance means to take jurisdiction of, to take authoritative notice. Why doesn’t that constitute an acceptance by the Supreme Court of the proposition that 3 U.S.C., Section 5 must be interpreted in this case?
David Boies, lawyer for Democrat Al Gore’s campaign: I think, Your Honor … a reasonable interpretation of that opinion is to say that what the Florida Supreme Court meant by cognizance is that it was taking into account the desire to get the election over in time so that everyone would have the advantage of the safe harbor, and I think that goes throughout the opinion.
Justice Kennedy: The language used in 3 U.S.C., Section 5 is garden-variety language, so far as the courts are concerned. We can determine whether or not there is a new law or an old law. That’s completely susceptible of judicial interpretation, is it not?
Mr. Boies: Yes, I think it is, Your Honor.
Justice Kennedy: All right. And it seems to me that if the Florida court, and presumably the Florida legislature, have acted with reference to 3 U.S.C. Section 5, that it presents now a federal question for us to determine whether or not there is or is not a new law by reason of the various Florida Supreme the two Florida Supreme Court decisions?
Mr. Boies: Except, Your Honor, what the Florida Supreme Court did, I think, in its opinion is to say that in terms of looking at how to remedy the situation, it needed to be cognizant of the fact that there was this federal deadline out there that was going to affect Florida’s electors if that deadline was not met.
Justice Kennedy: Well, of course, the deadline is meaningless if there’s a new law involved, and that’s part of the equation, too.
Mr. Boies: Yes, but what I would say is that whether or not there is a new law that is, whether there is a change in the enactment in the language of the statute or the Constitution is something that has to be decided in the initial instance by the Florida Supreme Court interpreting Florida law. And that’s…
Chief Justice William H. Rehnquist: Mr. Boies, there are really two parts to that sentence of Section 5. One is the law in effect at the time, and the other is, “finally determined six days before the date for choosing electors.” Do you think the Florida court meant to acknowledge it seems to me since it’s cited generally, they must have acknowledged both of those provisions.
Mr. Boies: I don’t know exactly what was in the Florida Supreme Court’s mind, but I think in general what the Florida Supreme Court made quite clear is that the thing that was constraining it was the desire to fit its remedy within the safe harbor provision.
Chief Justice Rehnquist: So that’s the “finally determine” portion of Section 5?
Mr. Boies: Yes, Your Honor. Yes, I think that’s right. And I think it does not reflect a desire to change the law or in any way affect what the substantive law is… .
Justice Kennedy: Let me ask could the legislature of the state of Florida after this election have enacted a statute to change the contest period by truncating it by 19 days?
Mr. Boies: You mean, by shortening it?
Justice Kennedy: Without contravening the section which says that there should be no new law for the safe harbor? Could the Florida … legislature have done what the Supreme Court did?
Mr. Boies: I think that it would be unusual. I haven’t really thought about that question. I think they probably could not, because I think …
Justice Kennedy: Consistently because that would be a new law under Section 5?
Mr. Boies: Yes, because it would be a legislative enactment, as opposed to a judicial interpretation of an existing law. Remember …
Justice Kennedy: And, in fact, it would be a new law under our preclearance jurisprudence, wouldn’t it?
Mr. Boies: I think not, Your Honor, because, if you go back to the State v. Chappell in 1988, where the Florida Supreme Court faced the very question of whether or not that seven-day period was an iron curtain that came down, the Florida Supreme Court said it was not. The Florida Supreme Court said that you had to look as to whether there was substantial compliance. In that case, three days was found to be substantial compliance.
That was a situation in which there was telephone notice which was not adequate for certification. It was then followed up …
Justice Kennedy: If we assume the legislature would run contrary to the new law prohibition in the statute, wouldn’t the Supreme Court do it if it does exactly the same thing?
Mr. Boies: What I’m saying, Your Honor, is that it wasn’t doing exactly the same thing, because it wasn’t passed with a new law. It was interpreting the existing law.
If the legislature had said for example, the legislature has …
Justice Kennedy: I’m not sure why if the legislature does it, it’s a new law, and when the Supreme Court does it, it isn’t.
Mr. Boies: No.
Justice Kennedy: Both would have to you have to preclear judicial rulings and see whether they are new laws, don’t you?
Mr. Boies: What I’m saying, Your Honor, is that if the Supreme Court had rewritten the law the way you hypothesized the legislature rewrote the law, it might very well be a difference. What I’m saying is that the Florida Supreme Court did not rewrite the law in the way that you hypothesize.
What the Florida Supreme Court was confronted with was a statute. And that statute said that and it was the later-passed statute let me get back into the “may” and the “shall.” The “may” statute was the later-passed statute. And so what the Florida Supreme Court said is, “We have to look at what is the criteria by which you decide whether you may ignore and will ignore these returns.”
And what the Florida Supreme Court said, “We’re going to interpret that exactly the way we’ve interpreted for 25 years.”
And the 12 years before the Florida Supreme Court made this decision, it had made the State v. Chappell decision, in which it had approached it from exactly the same policy grounds.
Justice Antonin Scalia: Well, it was quite a different I mean, there, indeed, telephone notification had been given within the deadline and the actual written material was not submitted until a few days after. I think that’s quite a bit different from extending the period generally and for all submissions for, you know but I’m … not sure that you and Justice Kennedy are disagreeing on very much. It seems to me you acknowledge that if the Florida Supreme Court’s interpretation of this law were not a reasonable interpretation, just not one that would pass normal judicial muster, then it would be just like the legislature writing a new law. But your contention here is that this is a reasonable interpretation of Florida law.
Mr. Boies: I think the way I would put it, Your Honor, is that if you conclude that the Florida Supreme Court’s interpretation of Florida law is either a sham or it is so misguided that it is simply untenable in any sense … I think, at that point, then you can conclude that what it has done is it’s changed the law. But I think the standard is the standard this court has generally applied in giving deference to state supreme court decisions.
Justice Sandra Day O’Connor: But is it, in light of Article II? I’m not so sure. I mean, I would have thought that that bears on the standard, frankly, when it contemplates that it is plenary power in the legislature. Does that not mean that a court has to, in interpreting a legislative act, give special deference to the legislature’s choices insofar as a presidential election is concerned? I would think that is a tenable view anyway, and especially in light also of the concerns about Section 5.
Mr. Boies: I think, Your Honor, that if the Florida Supreme Court, in interpreting the Florida law, I think the court needs to take into account the fact that the legislature does have this plenary power.
I think when the Florida Supreme Court does that, if it does so within the normal ambit of judicial interpretation, that is a subject for Florida’s Supreme Court to take.
Justice O’Connor: I’m sorry. You are responding as though there were no special burden to show some deference to legislative choices in this one context. Not when courts review laws generally, for general elections, but in the context of selection of presidential electors, isn’t there a big red flag up there, “Watch Out?”
Mr. Boies: I think there is in a sense, Your Honor. And I think the Florida Supreme Court was grappling with that.
Justice O’Connor: You think it did it properly?
Mr. Boies: I think it did do it properly.
Justice O’Connor: That’s, I think, a concern that we have.
And I did not find, really, a response by the Florida Supreme Court to this court’s remand in the case a week ago. It just seemed to kind of bypass it and assume that all those changes in deadlines were just fine, and they’d go ahead and adhere to them. And I found that troublesome.
Mr. Boies: Your Honor, if I could, one of the things that was argued from the beginning by Governor Bush’s counsel and accepted by the Florida Supreme Court was that the protest statute and the contest statute were very separate procedures.
There was a time limit in the protest context, prior to certification. But there is no time limit in the contest statute process, which is what we’re in now. And I think that the Florida Supreme Court was focussing on this contest period, which is what is really before was before them and is before you.
And in the contest …
Justice O’Connor: But I thought, and maybe I’m mistaken, but I thought it directed that certain votes that had been tabulated after the expiration of the original certification date were to be included now, without reference to the point at all that their opinion had been vacated. I just didn’t know how that worked.
Mr. Boies: There are three different groups of votes, OK, and with respect Broward, Palm Beach and Miami-Dade. With respect to Miami-Dade and Palm Beach, there was a trial; there was a contest trial.
It is the appeal from that trial that is before this court. And the petitioners don’t really refer to what’s in the trial record, but in that trial record, there was undisputed evidence that the votes that were counted there were valid, legal votes.
Now whether those votes were counted as part of the certification process or not, once you know there was valid votes …
Chief Justice Rehnquist: This was a trial this was a trial, Mr. Boies, in the circuit court of Miami-Dade?
Mr. Boies: Yes no, no, the circuit court of Leon County. Because it’s a statewide election, the contest procedure takes you to Leon County regardless of where the votes were cast.
But what the court found there and there was undisputed evidence, and Mr. Richard, who was Governor Bush’s counsel here, conceded that the Palm Beach board had applied the appropriate standard in identifying votes the so-called 215 additional net votes for Vice President Gore and Senator Lieberman.
What you had there was undisputed evidence. It was found as a matter of fact.
And the Supreme Court, reviewing that trial, said, “You’ve had these votes identified by Miami-Dade, 168 net votes; by Palm Beach, 215 net votes; and those votes need to be included.” Not because they were part of the … certification process.
Justice Scalia: It not only said that, it said that those votes have to be certified… . It said that those votes had to be certified, which certainly contravenes our vacating of their prior order.
Mr. Boies: I think not, Your Honor, because when you look at the contest statute, it is a contest of the certification; that is, the process is the results are certified and then what happens is you contest whether that certification is right.
Justice Scalia: I understand. But what the Florida Supreme Court said is that there shall be added to the certification these additional numbers.
Mr. Boies: But that’s true in any contest. Every single contest …
Justice Scalia: You may do a review of the ballots and add more numbers, but as I read the Florida Supreme Court opinion, it said the secretary of state will certify these additional …
Mr. Boies: Yes, because the contest procedure is a procedure to contest the certification.
What you’re doing is you’re saying, “This certification is wrong; change it.” That’s what every contest proceeding is. And what the Florida Supreme Court was saying after this trial is, “Yes, you proved that this certification is missing 215 votes.”
Justice Scalia: The certification, as rendered by the secretary of state, did not include those additional ballots for your client, and the Supreme Court directed that the certification would be changed to include those.
Mr. Boies: But, Your Honor, that is what happens every time there is a successful contest. The contest is a contest of the certification. You have the certification results …
Justice Scalia: It doesn’t make any sense to me. You have a certification which is made by the secretary of state. That is what is contested.
Mr. Boies: Right.
Justice Scalia: And here the certification was directed to be changed.
Justice Stephen G. Breyer: Does it matter, by the way … if they said in Palm Beach and Miami-Dade, the ones that the court said, “You must certify,” if they were thrown into the others and said, “Recount them”? If it’s uncontested in the trial, I guess that you’d get to the same place.
Mr. Boies: I think you get to exactly the same place.
Justice Breyer: So it doesn’t really matter.
Mr. Boies: I think it doesn’t really matter what they said.
Justice Breyer: But Broward might.
Mr. Boies: But Broward might.
Justice Breyer: Would you object if they have a different standard to recounting those too?
Mr. Boies: Broward is a different situation… . With respect to Broward, what you have is you have these votes that have been counted and were included in the certification, and if you were to assume that that certification that came in on November 26 is somehow void, then those ballots would have to be considered just like the Dade and the Palm Beach ballots.
So I think there is a distinction between Broward and …
Justice Kennedy: Do you think that in the contest phase there must be a uniform standard for counting the ballots?
Mr. Boies: I do, Your Honor. I think there must be a uniform standard. I think there is a uniform standard. The question is whether that standard is too general or not.
The standard is whether or not the intent of the voter is reflected by the ballot. That is the uniform standard throughout the state of Florida.
Justice Kennedy: That’s very general; it runs throughout the law. Even a dog knows the difference in being stumbled over and being kicked. You know it.
Now, in this case … what we’re concerned with is an intent that focuses on this little piece of paper called a ballot. And you would say that, from the standpoint of the equal protection clause, each could each county give their own interpretation to what “intent” means, so long as they are in good faith and with some reasonable basis finding intent? Could that vary from county to county?
Mr. Boies: I think it can vary from individual to individual. I think that just as these findings …
Justice Kennedy: So that even in one county, it could vary from table to table I’m counting these ballots, you’re counting this one?
Mr. Boies: I think on the margin, Your Honor, whenever you’re interpreting intent, whether it is in the criminal law, in administrative practice, whether it is in local government, whenever somebody is coming to …
Justice Kennedy: But here you have something objective. You’re not just reading a person’s mind; you’re looking at a piece of paper. And the supreme courts in the state of South Dakota and in other states have told us that, “You will count this if it’s hanging by two corners or one.” This is susceptible of a uniform standard. And yet you say it can vary from table to table within the same county.
Mr. Boies: With respect, it is susceptible of a more specific standard. And some states, like Texas, have given a statutory definition. Although even in Texas, there is a catch-all that says, “Anything else that clearly specifies the intent of the voter.”
So even where states have approached this in an attempt to give specificity, they have ended up with a catch-all provision that says, “Look at the intent of the voter.”
Justice David H. Souter: But they have ended up with a catch-all provision because, I assume, there may be cases in which the general rule would otherwise operate in which there is an affirmative counter-indication to what the general rule would provide.
But I think what’s bothering Justice Kennedy, and it’s bothering a lot of us here, is we seem to have a situation here in which there is a subcategory of ballots in which, we’re assuming for the sake of argument, since we know no better, that there is no genuinely subjective indication beyond what can be viewed as either a dimple or a hanging chad. And there is a general rule being applied in a given county that an objective intent or an intent on an objective standard will be inferred. And that objective rule varies, we’re told, from county to county.
Why shouldn’t there be one objective rule for all counties? And if there isn’t, why isn’t it an equal protection violation?
Mr. Boies: Let me answer both questions. First, I don’t think there is a series of objective interpretations, objective criteria that vary county by county.
Justice Souter: All right. But on the assumption that there may be, if we were fashioning a response to the equal protection claim, and we assume as a fact that there may be variations, wouldn’t those variations from county to county on objective standards be an equal protection violation?
Mr. Boies: I don’t think so, Your Honor, because I think there are a lot of times in the law in which there can be those variations, from jury to jury, from public official to public official.
Justice Souter: Yes, but in jury-to-jury cases, we assume that there is not an overall objective standard that answers all questions definitively. We are assuming that there is detail that cannot be captured by an objective rule.
The assumption of this question I think it’s behind what’s bothering Justice Kennedy, Justice Breyer, me and others is, we’re assuming there’s a category in which there just is no subjective appeal. All we have are certain physical characteristics.
Those physical characteristics, we are told, are being treated differently from county to county. In that case, where there is no subjective counter-indication, isn’t it a denial of equal protection to allow that variation?
Mr. Boies: I don’t think so, Your Honor, because and maybe I am quarreling with a premise that says there are these objective criteria. Maybe if you had specific objective criteria in one county that says we’re going to count indented ballots, and another county that said we’re only going to count the ballot if it’s punched through, if you knew you had those two objective standards and they were different, then you might have an equal protection …
Justice Souter: All right, we’re going to assume that we do have that. We can’t send this thing back for more fact-finding. If we respond to this issue, and we believe that the issue is at least sufficiently raised to require a response, we’ve got to make the assumption, I think, at this stage that there may be such variation, and I think we would have a responsibility to tell the Florida courts what to do about it.
On that assumption, what would you tell them to do about it?
Mr. Boies: Well, I think that’s a very hard question… .
Justice Souter: You’d tell them to count every vote, Mr. Boies.
Mr. Boies: I would tell them to count every vote… . I think I would say that if you’re looking for a standard, and I say that not because of the particular aspects of this election, the Texas standard, if you wanted to specify something that was specific, it gives you a pretty good standard.
Justice John Paul Stevens: Let me ask this question, Mr. Boies. Does not the procedure that is in place there contemplate that the uniformity will be achieved by having the final results all reviewed by the same judge?
Mr. Boies: Yes, that’s what I was going to say, Your Honor, that what you have here is you have a series of decisions that people get a right to object to. This is all going through a process. The people are there, they submit written objections, and then that’s going to be reviewed by a court.
Justice Stevens: Well, that causes me some problems that pertain not just to the equal protection aspect of this, but to the rationality of the Supreme Court’s opinion, because the Supreme Court opinion on the one hand said, as you’ve just repeated, that there was to be de novo review by the circuit judge in Leon County, but on the other hand it said that he had to accept the counts that had come out of Palm Beach and Broward counties.
Justice Scalia: It was clear that Broward and Palm Beach counties had applied different criteria to dimpled ballots. One of them was counting all dimpled ballots; the other one plainly was not. How can you at one and the same time say it’s a de novo standard as to what is the intent of the voter, and on the other hand say you have to accept, give some deference to, quite differing standards by two different counties? That’s just not rational.
Mr. Boies: Your Honor, I think what the court held was not include both Broward and Palm Beach; I think it was Palm Beach and Miami-Dade, because Broward was not part of the trial, because Broward had been certified.
And, with respect to Miami-Dade and Palm Beach, I do not believe that there is evidence in the record that that was a different standard.
And there’s no finding of the trial court that that was a different standard. Indeed, what the trial court found was that both Miami-Dade and Palm Beach properly exercised their counting responsibilities. So I don’t …
Justice Scalia: What do you mean “properly exercised”? What? Their discretion, right? Is that what he meant by “counting responsibilities”?
Mr. Boies: I believe what he meant was discerning the clear intent of the voter, which is what they were both attempting to do.
Chief Justice Rehnquist: Was this the trial before Judge Sauls? … I thought he ruled against the contestants and said they took nothing.
Mr. Boies: Yes, that is right, but he did so based on what the Florida Supreme Court held and what six justices of the Florida Supreme Court held were two errors of law: first, that we had to prove, before he looked at the ballots, that there was a probability that the election result would be changed; and second, that we had to prove abuse of discretion.
Chief Justice Rehnquist: But the fact-finding phase of that trial, you say these were found as a fact did he make findings of fact?
Mr. Boies: Yes, he did.
Chief Justice Rehnquist: Well, what did he say with respect to this?
Mr. Boies: With respect to this he said and he said it separately with respect to Miami-Dade and Palm Beach is he found that they had properly exercised their discretion.
The Palm Beach chairman of the canvassing board actually was a witness, Judge Burton, he came and testified. And he testified that they used a clear-intent-of-the-voter standard.
Chief Justice Rehnquist: As opposed to just intent of the voter?
Mr. Boies: Yes, just intent. They used clear intent of the voter. And the statute sometime in one section it says clear intent of the voter, that’s the one that petitioners’ counsel is referring to. In 166 it refers, in Subsection 7-B, to the intent of the voter. But Palm Beach used the clear intent of the voter and found hundreds of ballots that they could discern the clear intent of the voter from that were not machine read.
Now, in doing so, they were applying Florida law. And like the law of many states, it has a general standard, not a specific standard …
Justice O’Connor: Were those dimpled or hanging chads, so to speak?
Mr. Boies: Well, what he testified is that you looked at the entire ballot; that if you found something that was punched through all the way in many races, but just indented in one race, you didn’t count that indentation, because you saw that the voter could punch it through when the voter wanted to.
On the other hand, if you found a ballot that was indented all the way through, you counted that as the intent of the voter.
Justice O’Connor: With no holes punched?
Mr. Boies: With no holes punched, but where it was indented in every race… . Another thing that they counted was, he said they discerned what voters sometimes did was instead of properly putting the ballot in where it was supposed to be, they laid it on top. And then, what you would do, is you would find the punches went not through the so-called chad, but through the number.
Justice O’Connor: Well, why isn’t the standard the one that voters are instructed to follow, for goodness sakes? I mean, it couldn’t be clearer. I mean, why don’t we go to that standard?
Mr. Boies: Well, Your Honor, because in Florida law since 1917, Darby v. State, the Florida Supreme Court has held that where a voter’s intent can be discerned, even if they don’t do what they’re told, that’s supposed to be counted.
And the thing I wanted to say about the Beckstrom case is that was a case that used optical ballots voters were told, “Fill it in with a No. 2 pencil.” Several thousand didn’t. They used everything else, but not a No. 2 pencil, and so the machine wouldn’t read it. It was voter error.
The Supreme Court in 1998, well before this election, said, “You’ve got to count those votes.” And, in fact, they counted those votes, even though the way the canvassing board dealt with them was to go back and mark them over with a big black marker, which made it impossible to check whether the canvassing board had really just marked over the ballot or had put a new mark on the ballot.
Justice Scalia: Mr. Boies, can I come back to this discrepancy between Palm Beach and Broward County? I’m reading from footnote 16 of the Florida Supreme Court’s opinion: On November 9, 2000, a manual recount was requested on behalf of Vice President Gore in four counties: Miami-Dade, Broward, Palm Beach and Volusia. Broward County and Volusia County timely completed a manual recount.
It is undisputed that the results of the manual recounts in Volusia County and Broward County were included in the statewide certifications.
Mr. Boies: Yes, Your Honor.
Justice Scalia: And those statewide certifications, the Supreme Court ordered to be accepted.
So it is the Supreme Court, while applying the standard of supposedly de novo review of the certifications, is requiring the circuit court to accept both Broward County, which does one thing with dimpled ballots, and Palm Beach County, which does something clearly different.
Mr. Boies: Your Honor, the de novo review is in the contest phase. And neither Volusia County nor Broward County was a contest filed.
What the Supreme Court holds is that you’ve got de novo review in a contest. A contest relates to specific ballots that are contested. The ballots in Broward and Volusia were not contested by any party.
Justice Scalia: But the determination that the circuit court has to make about whether it’s necessary to have a recount is based upon the certifications.
Mr. Boies: No. It’s only based on …
Justice Scalia: Which he then accepts not de novo.
Mr. Boies: No, it’s only based on the certifications that are contested. In other words, if you’re going to order the manual review of the ballots, the issue is what ballots are contested, and, second, is there judicial review of those ballots.
Justice Scalia: You have to know how close the state election was, don’t you …
Mr. Boies: Yes, but …
Justice Scalia: … for which purpose you accept the certifications?
Mr. Boies: Yes, that’s true. And you have a certification …
Justice Scalia: And here you’re telling him to accept it not de novo, but deferring to Broward County.
Mr. Boies: I think what the Supreme Court is saying is you’ve got a certification. That certification shows a certain vote total. Now, you take that certification until it is contested, and it can be contested by either or both parties. You do not have, until it is contested, you do not have contested ballots.
Once you have contested ballots, then, going back to State v. Williams, Nuccio v. Williams in 1929, cited in our papers, then it becomes a judicial question. And what the court holds is you then look at that as a judicial matter, and that is why you have, going on in Leon County, the review of the Miami-Dade ballots under the court’s supervision.
I would point out that we asked to have the Miami-Dade ballots reviewed.
We also asked to have the 3,300 Palm Beach ballots reviewed, but the Supreme Court said no to us on that. They said, yes, you can have the 9,000 Miami-Dade ballots reviewed. They also said, which we didn’t ask for, they said, as a matter of remedy, we want to review the undervotes all around the state.
Chief Justice Rehnquist: Mr. Boies, one of the dissenting justices in the Supreme Court of Florida said that meant 177,000 ballots. Was he correct, in your view?
Mr. Boies: No. That is a result of adding the so-called undervotes that were mentioned and the so-called overvotes that were mentioned. Either an undervote, where no vote registers for president, or an overvote, where two or more registers for president, are discarded, because you can’t vote twice and if you vote not at all, under either circumstance, your vote doesn’t count.
Chief Justice Rehnquist: So, if you disagree that 177,000 ballots will be involved in this recount, how many do you think there are?
Mr. Boies: It’s approximately 60,000, I think, Your Honor. It turns out to be less than that because of the recounts that have already been completed.
But I think the total sort of blank ballots for the presidency were about 60,000.
Justice Kennedy: Mr. Boies, can I ask you this? Does that mean there are 110,000 overvotes?
Mr. Boies: That’s right.
Justice Kennedy: And if that’s the case, what is your response to the chief justice of Florida’s concern that the recount relates only to undervotes and not overvotes?
Mr. Boies: First, nobody asked for a contest of the overvotes. And the contest statute begins with a party saying that there is either a rejection of legal votes or an acceptance of illegal votes.
Justice Kennedy: But as a matter of remedy, it’s ordered a statewide recount in counties where the ballots were not contested. And that’s where I’m having some difficulty. And it goes back in part to your answer that you gave to Justice Scalia about Broward County, and in part to the answer you’re giving to Justice Stevens now.
Why is it that you say on the one hand to Justice Scalia, “Oh, well, these weren’t part of the contest”? But now, all of a sudden, we’re talking about statewide, that are not all of which were contested, but we’re not talking about the overvotes?
Mr. Boies: Two parts to the answer.
The reason that I said what I did to Justice Scalia was that I think that if this court were to rule that there was something wrong with the statewide recounts, that they were being done by canvassing boards as opposed to directly by the court, or because the court was not supervising the particular expression of voter intent, what the court would have done is simply cut back on a remedy that we didn’t ask for.
The second part is that when you’re dealing with overvotes and remember, this is a machine issue when you’re dealing with overvotes, the machine has already registered two votes. Now, there may be another vote there a dimpled vote or indented vote that the machine did not register, but once you get two votes, that ballot doesn’t get counted for the presidency.
Justice Breyer: They gave an example. The example they gave in their brief was, there’s a punch for Governor Bush and then there’s a punch for “write-in” and the write-in says, “I want Governor Bush.”
And so I think their implication is that that would have been rejected by the machine, but if you looked at it by hand, the intent of the voter would be clear. I don’t know if there are such votes, but they say there might be.
Mr. Boies: There’s nothing in the record that suggests there are such votes. If anybody had contested the overvotes, it would have been a relatively simple process to test that, because you could have simply tested as to whether the double vote was a write-in vote or was another candidate.
Chief Justice Rehnquist: I gathered from the opinion of the Supreme Court of Florida that the vice president did not ask for as broad a recount as the Supreme Court granted, but that it thought that to do just what he wanted would be unfair, and therefore out of fairness they granted the wider recount. Am I correct in this?
Mr. Boies: I think that’s right. I think that’s how I would interpret it, Mr. Chief Justice.
Justice Scalia: Mr. Boies, I have one other perplexity about the scheme that’s been set up here. As you point out, there’s scant statutory provision concerning the contest. There’s quite detailed statutory provision concerning the protest period, and it tells everybody how to act and time limits and all of that.
Why would anyone bother to go through the protest period, have these ballots counted by the canvassing boards, have them certify the results? Why go through all that when the whole thing begins again with a contest? Once a contest is filed, the certification is meaningless. What advantage is there to win the protest?
Mr. Boies: It’s not meaningless. It becomes the baseline. And in every contest that has ever taken place, including this one, that has been the baseline that has determined 99-plus percent of the votes. And what is contested are simply those ballots that during the protest phase have been identified as disputed ballots, so that the protest phase solves 99 percent of the election or more. What is left over are those ballots that one side or the other has contested, and that’s what the contest deals with.
Justice Kennedy: My concern is that the contest period, as we’ve been talking about, requires the studying of standards, judicial review and by reason of, what I take it to be your earlier position in the litigation, this period has been truncated by 19 days causing the time frame of which we’re also conscious, making it difficult for appellate review.
And it seems to me and we’re getting back to the beginning of this that the legislature could not have done that by a statute without it being a new law, and that neither can the Supreme Court, without it being a new law, a new scheme, a new system for recounting at this late date. I’m very troubled by that.
Mr. Boies: But, Your Honor, leaving aside the prior case about the extension of the time for certification, which I think at this stage you have to leave aside because at the contest stage, what you’re doing is you’re contesting specific ballots, whether or not they were included in the certification; it’s absolutely clear under Florida law that that’s what the contest is about.
So at the contest stage, the only question is, can you complete the contest of the contested ballots in the time available?
Everything that’s in the record is that we could have, and indeed we still may be able to, if that count can go forward.
Chief Justice Rehnquist: Including appeals to the Supreme Court of Florida and the other petition to this court?
Mr. Boies: Excuse me, Your Honor?
Chief Justice Rehnquist: I said, after the circuit judge says the contest comes out this way, surely there’s going to be an appeal to the Supreme Court of Florida and likely another petition to this court. Surely that couldn’t have been done by December 12.
Mr. Boies: Your Honor, I think …
Chief Justice Rehnquist: Or could it?
Mr. Boies: I think the appeal to the Florida Supreme Court could have, and indeed the schedule that was set up would have made that quite possible.
There’s about another day or so. Except for four or five counties, all of the counties would be completed in about another day, and maybe even those counties could be now, because, as I understand it, some of them have taken advantage of the time …
Chief Justice Rehnquist: Wouldn’t the …
Mr. Boies: … to get the procedures ready to count.
Chief Justice Rehnquist: Just a minute, Mr. Boies.
Wouldn’t the Supreme Court of Florida want briefs, and wouldn’t the parties have needed time to prepare briefs?
Mr. Boies: Yes, Your Honor, but, as we did in this court, we have done in the Florida Supreme Court a number of times, and that is to do the briefs and have the argument the next day and a decision within 24 hours.
Chief Justice Rehnquist: After the counts are conducted in the individual counties, wouldn’t the Leon County circuit judge have to review those counts? After all, I mean, the purpose of the scheme is to have a uniform determination.
Mr. Boies: To the extent that there are contested or disputed ballots …
Chief Justice Rehnquist: Right.
Mr. Boies: … I think that may be so, Your Honor.
Chief Justice Rehnquist: Well, wouldn’t that take a fair amount of time? And is that delegable? I assume he’d have to do that personally.
Mr. Boies: We believe that it could be done in the time available.
We also believe that we have available to us the argument that says: You’ve finished what we contested. Although the Supreme Court has said, as a matter of remedy, it would be a good idea to do these other things that nobody asked for, that if it gets down to the point where you have done the contest and you simply have not completed all of this other remedy, under 168, Subsection 8, that we are still entitled, under settled Florida law, to have our votes counted.
No, I think that what …
Chief Justice Rehnquist: I thought you agreed with me on that a moment ago.
Mr. Boies: I did. I did, Your Honor. I think that what they were saying is that, as a matter of remedy, this is the fairest way to do it. I don’t think they were saying that it would violate fundamental fairness to only take into account what you could get done in the time available. There’s nothing in the Supreme Court opinion that would suggest this.
Justice Scalia: Mr. Boies, would you explain to me again how the protest and the contest fits in? You said thelet’s assume that my complaint that I want to protest is the failure to do undercounts, to those ballots that were undercounted, OK?
Mr. Boies: Right.
Justice Scalia: That’s my protest.
Mr. Boies: Right.
Justice Scalia: Why would I ever bring that in a protest proceeding? Why wouldn’t I just go right to the contest, because it doesn’t matter whether I win or lose the protest proceeding. It’s de novo at the contest stage. What possible advantage is there to go through the protest proceeding?
Mr. Boies: If you’ve identified the ballots, you could presumably wait and do it at the contest phase. There’s no particular advantage to doing that.
Justice O’Connor: I thought the advantage might be, as described in the Florida case Boardman v. Esteva, saying that the certified election returns, which occur after the protest period, are presumptively correct, and they must be upheld unless clearly outside legal requirements. I thought that was Florida law …
Mr. Boies: Your Honor …
Justice O’Connor: … which would make it important to have a protest.
Mr. Boies: … I think that’s right. I think that is right. I would point out that …
Justice O’Connor: I think the Florida has sort of ignored that Boardman case.
Mr. Boies: Your Honor, I think the Boardman case relates not to the counting of votes; it has nothing to do with the standard in terms of the intent of the voter. The Boardman case, the language that you’re referring to is at page 268 of the Southern Reporter report of that case. And what is clear from that page and that discussion is it’s dealing with the issue of whether or not, because the canvassing board threw away the envelopes from the absentee ballots so they could not be checked, whether that invalidated the absentee ballots.
Mr. Boies: And the court says, no, it doesn’t, because it’s important to count all these votes, and because we assume that what they were doing was proper.
That does not, I respectfully suggest, at all deal with the question of deference to the voter intent determination, which the court has repeatedly said is a matter for judicial determination.
The other thing that I would say with respect to intent, and I know the court is concerned about whether the standard is too general or not, some states have made specific criteria their law. Other states, not just Florida, 10 or 11 of them, including Massachusetts in the Delahunt case that we cited, have stuck with this very general standard. There’s a sense in which that may be an Article II issue.
Justice Souter: Mr. Boies, let’s assume that at the end of the day, the Leon County, Florida, judge, gets a series of counts from different counties, and those counties have used different standards in making their counts. At that point, in your judgment, is it a violation of the Constitution for the Leon County judge to say, “I don’t care that there are different standards. As long as they purported to follow intent of the voter, that’s good enough.” Can we do that?
Chief Justice Rehnquist: I’ll extend your time by two minutes, Mr. Boies.
Mr. Boies: Yes. I do not believe that that would violate the equal protection and due process clause. That distinction between how they interpret the intent of the voter standard is going to have a lot less effect on how votes are treated than the mere difference in the types of machines that are used.
Justice Souter: Then the fact that there is a single judge at the end of the process, on your judgment, really is not an answer to the concern that we have raised.
Mr. Boies: No, I think it is an answer. I think there are two answers to it.
First, I think that the answer that they did it differently, different people interpreting the general standard differently, would not raise a problem even the absence of judicial review of that.
Second, even if that would have raised a constitutional problem, I think the judicial review that provides the standardization would solve that problem.
The third thing that I was saying is that any differences as to how this standard is interpreted have a lot less significance in terms of what votes are counted or not counted than simply the differences in machines that exist throughout the counties of Florida. There are five times as many undervotes in punch card ballot counties than in optical ballot counties.
Now, for whatever that reason is, whether it’s voter error or machine problems, that statistic, you know, makes clear that there’s some difference in how votes are being treated county by county. That difference is much greater than the difference in how many votes are recovered in Palm Beach, or Broward, or Volusia or Miami-Dade.
So that the differences of interpretation of the general standard are resulting in far fewer differences among counties than simply the differences in the machines that they have.