Bush v Gore: The US Supreme Court arguments - part 2

7:00 AM...continuation

REHNQUIST: Mr. Boies, we'll hear from you.

BOIES: Thank you. Mr. Chief Justice, may it please the court:

Let me begin by addressing what happened in the Beckstrom case that Mr. Klock refers to.

KENNEDY: Could we begin with jurisdiction first?

BOIES: Yes.

KENNEDY: The Supreme Court of Florida said that it took -- that it was cognizant, and the legislature was cognizant, of 3 U.S.C. Section 5. And for convenience sake, let's call that "new law."

That's not exactly this, but -- when the Supreme Court used that word, I assumed it used it in a legal sense. 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?

BOIES: I think, Your Honor, and, obviously, this court and the Florida Supreme Court is the best interpreter of that opinion, but I think 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.

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?

BOIES: Yes, I think it is, Your Honor.

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?

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.

KENNEDY: Well, of course, the deadline is meaningless if there's a new law involved, and that's part of the equation, too.

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...

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.

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.

REHNQUIST: So that's the "finally determine" portion of Section 5?

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. What the court is saying is...

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?

BOIES: You mean, by shortening it?

KENNEDY: Without contravening the section which says that there should be no new law for the safe harbor? Could the Florida Supreme Court have done what the legislature -- could the Florida legislature have done what the Supreme Court did?

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...

KENNEDY: Consistently -- because that would be a new law under Section 5?

BOIES: Yes, because it would be a legislative enactment, as opposed to a judicial interpretation of an existing law. Remember...

KENNEDY: And, in fact, it would be a new law under our preclearance jurisprudence, wouldn't it?

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...

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?

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...

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.

BOIES: No.

KENNEDY: Both would have to -- you have to preclear judicial rulings and see whether they are new laws, don't you?

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."

BOIES: 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.

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...

BOIES: If I could respond to that, Your Honor.

SCALIA: ... 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.

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...

SCALIA: Right.

BOIES: ... 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.

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.

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.

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"?

BOIES: I think there is in a sense, Your Honor. And I think the Florida Supreme Court was grappling with that.

O'CONNOR: You think it did it properly?

BOIES: I think it did do it properly.

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.

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...

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.

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...

REHNQUIST: This was a trial -- this was a trial, Mr. Boies, in the circuit court of Miami-Dade?

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... SCALIA: It not only said... BOIES: ... certification process.

SCALIA: It not only said that, it said that those votes have to be certified.

BOIES: Yes, Your Honor.

SCALIA: It said that those votes had to be certified, which certainly contravenes our vacating of their prior order.

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.

SCALIA: I understand. But what the Florida Supreme Court said is that there shall be added to the certification these additional numbers.

BOIES: But that's true in any contest. Every single contest...

SCALIA: It's not added to the certification.

BOIES: Yes, of course it is, Your Honor.

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...

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."

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.

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...

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.

BOIES: Right.

SCALIA: And here the certification was directed to be changed.

BREYER: Does it matter, by the way, does it matter -- does it matter 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.

BOIES: I think you get to exactly the same place.

BREYER: So it doesn't really matter.

BOIES: I think it doesn't really matter what they said.

BREYER: But Broward might.

BOIES: But Broward might.

BREYER: Would you object if they have a different standard to recounting those too?

BOIES: Broward is a different situation.

BREYER: Yes.

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, voidethen 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...

KENNEDY: Do you think that in the contest phase there must be a uniform standard for counting the ballots?

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.

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 -- 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?

BOIES: I think it can vary from individual to individual. I think that just as these findings...

KENNEDY: So that even in one county, it could vary from table to table -- I'm counting these ballots, you're counting this one?

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...

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.

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."

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?

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.

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?

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.

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?

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 problem...

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?

BOIES: Well, I think that's a very hard question.

(LAUGHTER)

SCALIA: You'd tell them to count every vote.

(LAUGHTER)

SCALIA: You'd tell them to count every vote, Mr. Boies.

BOIES: I would tell them to count every vote.

(LAUGHTER)

SCALIA: Let me ask you...

SCALIA: Before you answer that question, Mr. Boies...

BOIES: 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.

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?

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.

SCALIA: 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.

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.

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...

SCALIA: What do you mean "properly exercised"? What? Their discretion, right? Is that what he meant by "counting responsibilities"?

BOIES: I believe what he meant was discerning the clear intent of the voter, which is what they were both attempting to do.

REHNQUIST: Was this the trial before Judge Sauls?

BOIES: Yes, Your Honor.

REHNQUIST: I thought he ruled against the contestants and said they took nothing.

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.

REHNQUIST: But the fact-finding phase of that trial, you say these were found as a fact -- did he make findings of fact?

BOIES: Yes, he did.

REHNQUIST: Well, what did he say with respect to this?

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.

REHNQUIST: As opposed to just intent of the voter?

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...

O'CONNOR: Were those dimpled or hanging chads, so to speak?

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.

O'CONNOR: With no holes punched?

BOIES: With no holes punched, but where it was indented in every race.

O'CONNOR: That was counted as proper in...

BOIES: In Palm Beach.

O'CONNOR: Palm Beach.

BOIES: 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.

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?

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.

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.

BOIES: Yes, Your Honor.

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.

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.

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.

BOIES: No. It's only based on...

SCALIA: Which he then accepts -- not de novo.

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.

SCALIA: You have to know how close the state election was, don't you...

BOIES: Yes, but...

SCALIA: ... for which purpose you accept the certifications?

BOIES: Yes, that's true. And you have a certification...

SCALIA: And here you're telling him to accept it not de novo, but deferring to Broward County.

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 supervi