1 IN THE SUPREME COURT OF THE UNITED STATES 2 - - - - - - - - - - - - - - - x 3 GEORGE W. BUSH, : 4 Petitioner, : 5 v. : No. 00-836 6 PALM BEACH COUNTY : 7 CANVASSING BOARD, ET AL. : 8 - - - - - - - - - - - - - - - x 9 Washington, D.C. 10 Friday, December 1, 2000 11 The above-entitled matter came on for oral 12 argument before the Supreme Court of the United States at 13 10:00 a.m. 14 APPEARANCES: 15 THEODORE B. OLSON, ESQ., Washington, D.C.; on behalf 16 of the Petitioner. 17 JOSEPH P. KLOCK, JR., ESQ., Miami, Florida; on behalf 18 of Respondents Katherine Harris, et al., in 19 support of Petitioner. 20 PAUL F. HANCOCK, ESQ., Tallahassee, Florida; on 21 behalf of Respondent Robert A. Butterworth. 22 LAURENCE H. TRIBE, ESQ., Cambridge, Massachusetts; on 23 behalf of Respondents Al Gore, Jr. and Florida 24 Democratic Party. 25 1 1 C O N T E N T S 2 ORAL ARGUMENT OF PAGE 3 THEODORE B. OLSON, ESQ. 4 On behalf of the Petitioner 3 5 ORAL ARGUMENT OF 6 JOSEPH P. KLOCK, JR., ESQ. 7 On behalf of the Respondent 8 Katherine Harris, et al., in 9 support of Petitioner 27 10 ORAL ARGUMENT OF 11 PAUL F. HANCOCK, ESQ. 12 On behalf of the Respondent 13 Robert A. Butterworth 35 14 ORAL ARGUMENT OF 15 LAURENCE H. TRIBE, ESQ. 16 On behalf of the Respondents 17 Al Gore, Jr., and Florida 18 Democratic Party 44 19 REBUTTAL ARGUMENT OF 20 THEODORE B. OLSON, ESQ. 21 On behalf of the Petitioner 72 22 23 24 25 2 1 P R O C E E D I N G S 2 [10:00 a.m.] 3 CHIEF JUSTICE REHNQUIST: We'll hear argument 4 this morning in number 00-836, George W. Bush vs. The Palm 5 Beach County Canvassing Board. Mr. Olson. 6 ORAL ARGUMENT OF THEODORE B. OLSON 7 ON BEHALF OF PETITIONER 8 MR. OLSON: And may it please the Court: Two 9 weeks after the November 7 presidential election, the 10 Florida Supreme Court overturned and materially rewrote 11 portions of the carefully formulated set of laws enacted 12 by Florida's legislature to govern the conduct of that 13 election and the determination of controversies with 14 respect to who prevailed on November 7th. These laws have 15 been formulated by the Florida legislature pursuant to an 16 express delegation of authority, to wit, by the United 17 States Constitution. The election code that the Florida 18 legislature developed conformed to Title 3, Section 5 of 19 the United States Code. That provision invites states to 20 devise rules in advance of an election, to govern the 21 counting of votes and the settling of election 22 controversy. 23 QUESTION: Well, Mr. Olson, isn't Section 5 sort 24 of a safe harbor provision for states, and do you think 25 that it gives some independent right of a candidate to 3 1 overturn a Florida decision based on that section? 2 MR. OLSON: We do, Justice O'Connor. It is a 3 safe harbor, but it's more than that. And Section 5 of 4 Title 3 needs to be construed in connection with the 5 history that brought it forth -- 6 QUESTION: Yes. But I would have thought it was 7 a section designed in the case of, some election contest 8 ends up before the Congress, a factor that the Congress 9 can look at in resolving such a dispute. I just don't 10 quite understand how it would be independently 11 enforceable. 12 MR. OLSON: That's why I've mentioned the 13 context in which that section was adopted. In light of 14 the extreme controversy that was faced by this country as 15 a result of the 1876 election, and as this Court knows, 16 that election was very close and led to controversy, 17 contest, discord, Congress was very much concerned about 18 the possibility of that happening again, and one of the 19 reasons -- 20 QUESTION: Yeah, but what they did was, and it's 21 typical of grant-in-aid programs, they said if you run a 22 clean shop down there, we'll give you a bonus, and if you 23 don't, well, you take your chances with everybody else. 24 MR. OLSON: Justice Kennedy, I submit that it is 25 much like a compact that Congress is offering in the form 4 1 of Section 5, yes. If you do these things, certain things 2 will happen. But among these things, what Congress wanted 3 to accomplish with Section 5 was not only to provide the 4 benefit to the states, but to provide the benefit to the 5 United States of the states accepting that implicit 6 proposal. 7 QUESTION: But what is there in the opinion of 8 the Supreme Court of Florida that indicates that it relied 9 on this Federal statute in the reasoning for its decision 10 and in its judgment? 11 MR. OLSON: Well, I think the fact is that it 12 did not. What it did was it disregarded the compact. 13 When the state adopted a code of ethics, or a code of 14 election procedures to govern the election and the 15 determination of disputes pursuant to the election, it 16 brought itself into that safe harbor and guaranteed to the 17 voters and the candidates in that state that the 18 controversy and turmoil that infected this country after 19 the 1876 -- 20 QUESTION: Well, we are looking for a Federal 21 issue, and I thought that you might have argued that the 22 Secretary of State was instructed by the Supreme Court not 23 to jeopardize the state's chances and then cited 3 U.S.C. 24 Sections 1 through 10. And so if the, if the state 25 supreme court relied on a Federal issue or a Federal 5 1 background principle and got it wrong, then you can be 2 here. 3 MR. OLSON: Well, I certainly agree that it 4 mentioned those provisions. I'm simply saying that it 5 blew past the important provisions of Section 5 and the 6 benefits that Section 5 gives to the states to the voters 7 in that state and to the people running for office in that 8 state. That is to say that if the rules are complied 9 with, if disputes are resolved according to the rules that 10 are set forth, then not only will the electors chosen by 11 the voters in that state be given conclusive effect at the 12 time they are counted by Congress but we will not have the 13 controversy, dispute and chaos that's been taking place in 14 Florida. 15 QUESTION: Mr. Olson, suppose a less, a less 16 controversial Federal benefit scheme, let's say the scheme 17 that says states can get highway funds if, if they hold 18 their highway speeds to a certain level, all right? And 19 suppose you have a state supreme court that in your view 20 unreasonably interprets a state statute as not holding 21 highway speed to the level required in order to get the 22 benefit of that safe harbor. Would you think that that 23 raises a Federal question and that you could appeal the 24 state court decision here because it deprived the state of 25 the benefit of the highway funds? 6 1 MR. OLSON: No, I don't think so. 2 QUESTION: Why is this any different? 3 MR. OLSON: This is a great deal different 4 because this is -- first of all, Article II of the 5 Constitution which vests authority to establish the rules 6 exclusively in the legislatures of the state, tie in with 7 Section 5. Secondly, as this Court has stated -- 8 QUESTION: Well, let's just talk about Section 9 5. I mean, the constitutional question's another one. 10 Why is Section 5 in that regard any different from the 11 highway funding? 12 MR. OLSON: I think it -- I think it can't be 13 divorced from Article II of the Constitution because it's 14 a part of a plan for the vesting in the legislatures of a 15 state, and Section 5 implements Article II in the sense 16 that it provides a benefit not just to the state but to 17 the voters. 18 QUESTION: But just talk about the statutory 19 issue. I assume that if we worked long enough with 20 Justice Scalia's hypothetical, we could find a case where 21 a court adjudicated with reference to the Federal 22 principle and got the Federal principle wrong. Did -- 23 Indiana vs. Brand and that kind of thing. Did that happen 24 here? 25 MR. OLSON: Well, I think that the state did not 7 1 pay, the state supreme court did not pay much attention to 2 the Federal statute. It was obviously aware of it. It 3 did get the Federal principle -- 4 QUESTION: Well, then there is no Federal 5 constitutional issue here. 6 MR. OLSON: Well, there is a Federal-- 7 QUESTION: Pardon me, statutory issue. 8 MR. OLSON: Well, we believe that there is, 9 Justice Kennedy, because although the state recognized it, 10 it blew right past it. The state legislature adopted the 11 code that the Section 5 of Article 3 of Title 3 invited it 12 to do. The state supreme court, which had no right under 13 the Constitution, but I can't divorce the constitutional 14 provision from Section 5, then overturned the plan that 15 the state enacted through its legislature to make sure 16 that what happened down in Florida was not going to 17 happen. And so what the state supreme court did, knowing 18 full well that these provisions existed, overturned the 19 carefully enacted plan by Florida. 20 QUESTION: Mr. Olson, do you think that Congress 21 when it passed 3 U.S. Code, intended that there would be 22 any judicial involvement? I mean, it seems to me it can 23 just as easily be read as a direction to Congress, saying 24 what we are going to do when these electoral votes are 25 presented to us for counting. 8 1 MR. OLSON: I think that it was intend -- 2 directed to Congress, but it seems to me that in the 3 context in which it was adopted and the promise that it 4 afforded, that the conclusive effect would be given to the 5 state selection of electors, that is a somewhat empty 6 remedy and it doesn't accomplish Congress' objectives if 7 it cannot be enforced when an agency of the state 8 government steps in as the Florida Supreme Court did here 9 and overturn the plan by which the Florida legislature 10 carefully set forth a program so that disputes could be 11 resolved, and we wouldn't have the controversy, conflict 12 and chaos that we submit exists today in Florida. 13 QUESTION: Mr. Olson, your -- your submission is 14 based on the premise that the Florida court overturned 15 something that the statute did not. Is it not arguable, at 16 least, that all they did was fill gaps that had not been 17 addressed before? 18 MR. OLSON: Justice Stevens, I don't think that 19 in this case that's even remotely arguable. What the state 20 supreme court did is take a set of timetables, a set of 21 provisions that -- 22 QUESTION: Yes. And the first one was the 23 mandatory -- is it your view still that the shall date 24 controls in all respects? 25 MR. OLSON: No. Not necessarily. But the 102 9 1 -- there is the two provisions, Section 102.111 and 2 102.112. 111 contains the shall date, 102 contains the 3 may date. 4 QUESTION: Correct. 5 MR. OLSON: Both of those statutes, both of 6 those provisions say that the returns must be, or shall be 7 filed by a certain deadline. The shall and the may 8 provisions simply relate to the possible remedy. We 9 submit that under either interpretation the Secretary of 10 State of Florida either must or shall ignore those 11 returns, or may set those aside in her discretion. 12 QUESTION: Does that mean if there were an act 13 of God that prevented the returns from being filed that 14 she would have discretion either to accept or reject the 15 returns? 16 MR. OLSON: Yes, I believe -- 17 QUESTION: She would have the discretion? 18 MR. OLSON: Yes. 19 QUESTION: Would she be compelled in that event 20 to accept the returns? 21 MR. OLSON: I don't think so. She took the 22 position -- 23 QUESTION: She has the total discretion either 24 to accept or reject? 25 MR. OLSON: That's -- 10 1 QUESTION: Is there any circumstance in which 2 she would be compelled to accept a late return? 3 MR. OLSON: I don't know of any. I haven't 4 thought of any, Justice Stevens. 5 QUESTION: Well, you are arguing in effect that 6 it's a mandatory deadline. I wonder if you really mean 7 it's mandatory. 8 MR. OLSON: Well, the problem is that it's -- 9 what we are saying is that either it's mandatory, in which 10 case she could not accept them. 11 QUESTION: But you don't know whether it's 12 mandatory or not? 13 MR. OLSON: Well, the Florida Supreme Court and 14 what the circuit court did in that case, it said that it 15 wasn't -- and we'll accept this for purposes of this 16 argument that it wasn't -- 17 QUESTION: Yes, but one of the things that's of 18 interest to me is the extent to which you say there was a 19 change in the law. It seems to me that in order to answer 20 that question you have to know what your view of the law 21 was before this all happened. 22 MR. OLSON: I think that we can answer that this 23 way, is that whether it was shall ignore or may ignore. 24 It was not must accept. 25 QUESTION: Under any circumstance it was not 11 1 must? 2 MR. OLSON: No, under no circumstances was it 3 must accept. Now -- 4 QUESTION: Even in an act of God or fraud? 5 MR. OLSON: I don't believe so, Justice Stevens. 6 QUESTION: Okay. 7 QUESTION: Mr. -- 8 QUESTION: Isn't the law in Florida like as in 9 most states, and in the Federal government, that when an 10 official has discretion, may accept or may not accept, 11 that has to be exercised within the limits of reason? 12 MR. OLSON: Yes. 13 QUESTION: Well, then, isn't it possible that 14 when the court says she must accept under certain 15 circumstances, what they mean is outside those 16 circumstances, given the circumstances here it would be 17 unreasonable to refuse? 18 MR. OLSON: Well, what the court did was so 19 constrain those circumstances, virtually to make them 20 nonexistent. 21 QUESTION: All right. So then what you're 22 arguing about is a determination by the state court of 23 Florida as to what the circumstances are under state