George W. Bush vs. Al Gore

Text of the U.S. Supreme Court hearing on Monday, as transcribed by eMediaMillWorks, Inc.:

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CHIEF JUSTICE WILLIAM H. REHNQUIST: We’ll hear argument now in number 00949, George W. Bush and Richard Cheney vs. Albert Gore, et al.

Before we begin the arguments, the court wishes to commend all of the parties to this case on their exemplary briefing under very trying circumstances. We greatly appreciate it. Mr. Olson?

THEODORE B. OLSON, lawyer for the Bush campaign: Mr. Chief Justice, thank you. And may it please the court:

Just one week ago, this court vacated the Florida Supreme Court’s Nov. 21 revision of Florida’s election code, which had changed statutory deadlines, severely limited the discretion of the state’s chief election officer, changed the meaning of words such as “shall” and “may” into “shall not” and “may not,” and authorized extensive, standardless and unequal manual ballot recounts in selected Florida counties.

Just four days later, without a single reference to this court’s Dec. 4 ruling, the Florida Supreme Court issued a new, wholesale, post-election revision of Florida’s election law. That decision not only changed Florida election law yet again, it also explicitly referred to, relied upon and expanded its Nov. 21 judgment that this court had made into a nullity.

JUSTICE ANTHONY M. KENNEDY: Can you begin by telling us our federal jurisdiction? Where’s the federal question here?

OLSON: The federal question arises out of the fact that the Florida Supreme Court was violating Article II, Section 1 of the Constitution, and it was conducting itself in violation of Section 5 of Title 3 of federal law.

JUSTICE KENNEDY: On the first, it seems to me essential to the republican theory of government that the Constitutions of the United States and the states are the basic charter. And to say that the Legislature of the state is unmoored from its own Constitution and it can’t use its courts and it can’t use its executive agency--even you, your side, concedes it can use a state agency--it seems to me a holding which has grave implications for our republican theory of government.

OLSON: Justice Kennedy, the Constitution specifically vested the authority to determine the manner of the appointment of electors in state legislatures. Legislatures, of course, can use the executive branch in the states, and it may use, in its discretion, the judicial branch of the state.

JUSTICE KENNEDY: Then why didn’t it do that here?

OLSON: I did not do that here because it did not specify--it did use the executive branch. In fact, it vested considerable authority in the [Florida] secretary of state [Katherine Harris], designating the secretary of state as the chief elections official.

And, as we point out, the very first provision in the Election Code requires the secretary of state to assure uniformity and consistency in the application and enforcement of the election law. The secretary of state, as the executive branch, is also given considerable other responsibilities. And to a certain extent, especially in connection with the contest phase of the election, certain authority was explicitly vested in the circuit court of the state of Florida, which is the trial court.

JUSTICE SANDRA DAY O’CONNOR: But you think then there is no appellate review in the Supreme Court of what a circuit court does?

OLSON: Certainly, the Legislature did not have to provide appellate review.

JUSTICE O’CONNOR: Well, but it seemed apparently to just include selection of electors in the general election law provisions. It assumed that they’d all be lumped in together somehow. They didn’t break it out.

OLSON: Well, there is a breakout with respect to various aspects of Florida statute and Florida election law. There’s a specific grant of authority to the circuit courts. There’s no reference to an appellate jurisdiction. It may not be the most powerful argument we bring to the Supreme Court.

JUSTICE KENNEDY: I think that’s right. (LAUGHTER)

OLSON: Because, notwithstanding--well, the fact is that the Constitution may have been invoked . . .

JUSTICE KENNEDY: Well, this is serious business, because it indicates how unmoored, untethered, the Legislature is from the Constitution of its own state, and it makes every state law issue a federal question.

Can you use this theory and say that it creates some sort of presumption of validity that allows us to see whether the courts or the executive has gone too far? Is that what you’re arguing?

OLSON: No. I would say this with respect to--it would have been perfectly logical, and if you read the statutes, it’s perfectly logical, especially in the context of a presidential election, to stop this process at the circuit court and not provide layers of appeal because, given the time deadlines, especially in the context of this election, the way it’s played out, there is not time for an appellate court.

JUSTICE O’CONNOR: I have the same problem Justice Kennedy does, apparently, which is, I would have thought you could say that Article II certainly creates a presumption that the scheme the Legislature has set out will be followed, even by judicial review in election matters, and that [Article] 3 U.S. Code, Section 5 likewise suggests that it may inform the reading of statutes crafted by the legislatures so as to avoid having the law changed after the election. And I would have thought that that would be sufficient, rather than--to raise an appropriate federal question--rather than to say there’s no judicial review here in Florida.

OLSON: I think that I don’t disagree with that, except to the extent that I think that the argument we’ve presented and amplified in our briefs is a good argument. It’s a solid argument. It is consistent with the way the code is set up, and it’s particularly consistent with the timetable that’s available in [a] presidential election.

JUSTICE ANTONIN SCALIA: Well, it’s pretty close. You can say it could be interpreted that way by the Florida Supreme Court, I suppose. Do you think it must be? Or is your point that, even in close calls, we have to revisit the Florida Supreme Court’s opinion?

OLSON: No, I think that it is, particularly in this case, where there’s been two wholesale revisions, major restructuring of the Florida election code, we don’t even get close to that question at all.

It would be unfortunate to assume that the Legislature devolved its authority on its judiciary sub silentio. There is no specific reference to it.

But in this case, as we have pointed out, especially the decision of last Friday, there was a major overhaul in almost every conceivable way--

(CROSS TALK)

JUSTICE JOHN PAUL STEVENS: And is it critical to your Article II argument that we read the word “legislature” as narrowly--I mean, the power granted the legislature as similar to that granted in Article 5 of the Constitution, that those cases dealt with?

OLSON: No, I don’t think it’s necessary--

JUSTICE STEVENS: So your reliance on--you really are not relying on those cases.

OLSON: Well, I think those cases support the argument. But we--

JUSTICE STEVENS: Except you got to choose one version of the word “legislature” or the other.

OLSON: I think a different context is not necessarily the case. And certainly it is true that legislatures can employ the legislative process that might include vetoes by a state chief executive or a referendum when the state deliberately chooses to choose a legislative method to articulate a code. The point, I think, that’s most important and most--

JUSTICE STEVENS: But is it the choice of the Legislature or was it constitutionally limited to this provision? I’m a little unclear on what your theory is.

Is it your theory, in other words, that they voluntarily did not permit appellate review of the lower courts in these election contests or that the Article II prohibited them from allowing appeal to the appellate?

OLSON: No, Article II, we do not contend that Article II would prohibit them from--

In the context of this case, we’re saying that they can include the judicial branch when they wish to do so. But under no circumstances is it consistent with the concept of the plan in the Constitution for the state sub silentio, the state legislature sub silentio, to turn over to the judiciary the power to completely reverse, revise and change the election code in all of the major respects--

JUSTICE RUTH BADER GINSBURG: Mr. Olson, with respect to the role of judicial review, you rely very much on the McPherson case. And two things strike me about that case.

One is, if you’re right on your jurisdiction theory, then should not this court have vacated instead of affirmed the decision of the Michigan Supreme Court in that case, because the Michigan Legislature didn’t confer upon the Michigan Supreme Court in that case any special authority of judicial review?

OLSON: That’s entirely possible that that might be the case, Justice Ginsburg, but the entire text of the McPherson decision and its recitation of the legislative history, or the history of legislation and compound acts by state legislatures to comply with it, make it quite clear that the power is vested in the Legislature itself.

JUSTICE GINSBURG: But there was a decision by the court reviewing, which we affirmed.

Under your jurisdiction theory, as I see it, there was no role for the Michigan Supreme Court to play because Article II, Section 1 gives the authority exclusively to the Legislature, and the Legislature had not provided for judicial review specially for that measure.

OLSON: I think the context of that case is different, and it is entirely possible for the court to have come to the conclusion it did in that case.

And we believe that case is compelling for the principle that we’re arguing in this case, that there is no--the entire structure of what Florida did, its election code, in its effort to comply not only with Article II but with Section 5 of Title 3, is such that it did not intend in any way to divest itself of the power to determine how the appointment of electors would be determined in a federal presidential election, and most importantly the resolution of cases in controversies and disputes with respect to the appointments.

JUSTICE GINSBURG: Three times at least, as I counted, in McPherson itself, it refers to what is done by the legislative power under state constitutions as they exist. This is not the most clearly written opinion, and yet three times they refer to the legislative power as constrained by the state’s constitution.

OLSON: And I think that’s important. I agree with you, Justice Ginsburg; it’s not the most clearly written opinion.

But I think that in the context of that case, the relationship of the Legislature to the Constitution in that case, and the way that power was exercised, that all can be reconciled with what we’re urging the court today, that a wholesale revision and abandonment of the legislative authority can’t be turned over, especially sub silentio, by a legislature simply because there is a constitution.

There is a constitution in every state; there’s a judiciary in every state. The judiciary performs certain functions in every state. And to go that length, one would assume that the judiciary in every state, under that argument, could overturn, rewrite, revise and change the election law in presidential elections, notwithstanding Article II, at will.

Now this was a major, major revision that took place on Friday. [When the Florida Supreme Court ordered statewide recounts of selected ballots.]

JUSTICE STEVENS: Mr. Olson, isn’t that one of the issues in the case, as to whether it was a major revision? Your opponents disagree, and I know you rely very heavily on the dissenting opinion in the Florida Supreme Court, but which opinion do we normally look to for issues of state law?

OLSON: Well, I think that the dissenting and the two dissenting opinions are very informative. We’re relying on what the court did.

If one looks at, for example, the recount provisions, before this revision, under Florida law, manual recount under the protest provisions were discretionary, completely discretionary, conducted by canvassing boards during the protest phase of the postelection period, pursuant to legislatively defined procedures as to who could be present, for seven days after the election. With respect to all ballots in a county, that was mandatory and only available, as we heard last week, for tabulation error up until this election.

After the [Florida Supreme Court] decision of Dec. 8, in this context, those remand provisions--I mean those manual recount provisions--became mandatory instead of discretionary; pursuant to judicial rather than executive supervision, during the contest phase rather than the protest phase, even though it’s not even mentioned in the statute with respect to the contest phase; pursuant to ad hoc, judicially established procedures rather than the procedures that are articulated quite carefully in the statute--

JUSTICE DAVID H. SOUTER: Well, aren’t ad hoc judicially created procedures the point of Subsection 8 of 168 [Florida statute 102.168]? I mean, once we get into the contest phase, Subsection 8 gives at least to the circuit court, leaving aside the question of appellate jurisdiction, about as broad a grant to fashion orders as I can imagine going into a statute.

OLSON: Well, to read that provision--it’s written quite broadly. One has to read that in the context of the entire statutory framework. If one reads it the way the Florida Supreme Court did, the entire process is tilted on its head. Where there used to be the decision that was in the election officials, it now becomes in the court.

All of the limitations on the remand process that existed during the protest phase, where the standards should be lower because it’s earlier in the process, are thrown out the window. The timetables are thrown out the window. The process that exists are there--

JUSTICE SOUTER: What’s the timetable in 168?

OLSON: There’s no timetable--

JUSTICE SOUTER: That’s right, there is no timetable there, so that seems to undercut your timetable argument once you get into the contest phase from the protest phase.

OLSON: Well, I think--but that’s only if you untether 168 entirely from the statute and the scheme by which the protest phase takes place over a period of seven to 10 days in the context of this election, and the contest phase occurs over the next four weeks.

JUSTICE SOUTER: It may well be, and I, you know, I will grant you, for the sake of argument, that there would be a sound interpretive theory that in effect would coordinate these two statutes, 166 and 168, in a way that the Florida Supreme Court has not done. But that’s a question of Florida Supreme Court statutory construction.

And unless you can convince us, it seems to me, that in construing 168, which is what we’re concerned with now, and its coordination or a lack of coordination with 166, the Florida Supreme Court has simply passed the bounds of legitimate statutory construction, then I don’t see how we can find an Article II violation.

OLSON: Well, I am hoping to convince you that they passed far beyond the normal limits of statutory construction. The changing of the meaning--

JUSTICE SOUTER: You’ve convinced us certainly that there is a disagreement about how it should be construed, and that disagreement is articulated by the dissents in the most recent case, but I don’t quite see where you cross the line into saying that this has simply become a nonjudicial act. It may or may not be good statutory construction, but I don’t see the--

(CROSSTALK)

OLSON: It is, we submit, an utter revision of the timetables, the allocation of--

JUSTICE SOUTER: But, Mr. Olson, we’re back to the--there is no timetable in 166.

OLSON: That’s correct.

JUSTICE SOUTER: And what your argument boils down to, I think, is that they have insufficiently considered--I’m sorry, 168--that they have insufficiently considered 166 in construing 168.

OLSON: Furthermore, it is quite clear, we submit, that the process has changed--

JUSTICE SOUTER: Well, if your concern was with impossibility, why didn’t you let the process run instead of asking for a stay?

OLSON: Well, because we said--

JUSTICE SOUTER: You’d find out.

OLSON: Because we argued, and I believe, that there’s a very firm basis that that process already had violated Article II of the Constitution. It was also already throwing in jeopardy compliance with Section 5 of Title 3 because the laws had been changed in a number of different respects and we’ve recited them. The timetables are important.

JUSTICE KENNEDY: I thought your point was that the process is being conducted in violation of the equal protection clause because it’s standardless.

OLSON: And the due process clause. And what we know is now the new system that was set forth and articulated last--

JUSTICE STEPHEN G. BREYER: In respect to that--

OLSON: Pardon me.

JUSTICE BREYER: In respect to that, if it were to start up again, if it were--totally hypothetically--and you were counting just undercounts, I understand that you think that the system that’s set up now is very unfair, because it’s different standards in different places. But what in your opinion would be a fair standard, on the assumption that it starts up missing the [Dec.] 12th deadline but before the 18th?

OLSON: Well, one fair standard--and I don’t know the complete answer to that, is that there would be a uniform way of evaluating the manner in which--there’s Palm Beach [County], for example--

JUSTICE BREYER: All right. A uniform way of evaluating. What would the standard be? Because this is one of your main arguments. You say intent of the voter is not good enough, you want substandards. What in your opinion would be the most commonly used in the 33 states or whatever, or in your opinion, the fairest, uniform substandard?

OLSON: Well, certainly, at minimum, Justice Breyer, the penetration of the ballot card would be required. Now, that’s why I mentioned the Palm Beach standard that was articulated in writing and provided along with the ballot instructions to people voting, that the chad had to be punctured--

JUSTICE BREYER: You’re repeating then Indiana. Is Indiana, in your opinion, or 1990 Palm Beach, are either of those fair? Or what else?

OLSON: It is certainly a starting point. And--

JUSTICE O’CONNOR: Well, would the starting point be what the secretary of state decreed for uniformity?

OLSON: That is correct, and--

JUSTICE O’CONNOR: Is that the starting point under the Florida legislative scheme?

OLSON: I would agree with that, Justice O’Connor.

JUSTICE O’CONNOR: And what standard did the secretary of state set?

OLSON: She had not set one, and that’s one of the objections that we had with respect to the process that the--the selective process that existed and that we discussed in conjunction with the Nov. 21 position.

Not only was there not a standard, but there was a change two or three times during the course of this process with respect to the standard that I was just discussing.

JUSTICE KENNEDY: I understand that she has the expertise, and let’s assume that under Florida state law, she’s the one with the presumptive competence to set the standard.

Is there a place in the Florida scheme for her to do this in the contest period?

OLSON: I don’t think there is--well, there’s no limitation on when she can answer advisory opinions.

JUSTICE KENNEDY: Even in the contest?

OLSON: I don’t--I think that that’s correct. Now whether or not, if there was a change as a result of that, of the process, whether there would be problems with respect to Section 5, I haven’t thought about.

JUSTICE SOUTER: If this [case] were remanded to the Leon County Circuit Court, and the judge of that court addressed the secretary of state--either is or could be made a party--and said, “Please tell us what the standard ought to be. We will be advised by your opinion,” that would be feasible, wouldn’t it?

OLSON: I think it would be feasible. Now, counsel for the secretary of state will be up in a moment, immediately after me.

As I understand, however, the Election Code, she would have the power to respond to that inquiry. In fact, under the very first, as I mentioned, the very first section of the Election Code, Sub 1, she’s not only the chief election officer, but has responsibility--

JUSTICE BREYER: No, I’d still like to get your view as to what would be the fair standard.

OLSON: Well, certainly one that would--I don’t--I haven’t crafted it entirely out. That is the job for a Legislature.

JUSTICE BREYER: But I’d still like to get your opinion, insofar as you could give it.

OLSON: I think that part of that standard is that it would have to be applied uniformly. It would have to be, I would think, a reasonable standard would have to be, at minimum, a penetration of the chad in the ballot, because indentations are no standards at all. There are other procedural standards--

JUSTICE STEVENS: But, Mr. Olson, was the Palm Beach standard that you refer to in your brief applied statewide and uniformly? You refer to the Palm Beach standard having changed. Was the Palm Beach standard ever applied on a statewide basis?

OLSON: I believe it was not, Justice Stevens.

JUSTICE STEVENS: And can we possibly infer from the failure of the secretary of state to promulgate a statewide standard that she might have inferred that the intent of the voter is an adequate standard?

OLSON: No, I don’t think it’s a fair inference either way. Remember--the counting and evaluating of disputes. But certainly with--

JUSTICE GINSBURG: But if we’re talking about the contest period, the statute, as Justice Souter pointed out, speaks with amazing breadth. It says that, “The circuit judge,” this is the text, “shall fashion any order he or she deems necessary to prevent or correct any wrong, and to provide any relief appropriate under the circumstances.” I couldn’t imagine a greater conferral of authority by the Legislature to the circuit judge.

OLSON: But we submit, in the context of the entire election code itself. Now, the intent of the voter standard, the one that’s been cited and relied upon by our opponents most, is a provision that’s contained in the provision of the Election Code that deals with damaged or spoiled ballots.

JUSTICE SOUTER: OK, but we have--there’s no question that the closest we can come now, under Florida law, is an intent of the voter standard. Is it your position that if any official, judicial or executive, at this point were to purport to lay down a statewide standard, which went to a lower level, a more specific level than intent of the voter, and said, for example, “Count dimpled chads,” or “Don’t count dimpled chads,” in your judgment would that be a violation of Article II?

OLSON: I don’t think it would be a violation of Article II, provided that--I mean, the first part of your question--

JUSTICE SOUTER: All right. So if we went from the standard that existed before, the dimpled chads that hadn’t--that that had not been a standard anywhere in Florida, if that change was made, we would strongly urge that that would be a violation of Article II, a complete change--

JUSTICE SCALIA: Mr. Olson, it is also part of your case, is it not, that insofar as that language just quoted is concerned, the power of the circuit judge to prevent or correct any alleged wrong? It’s part of your submission, I think, that there is no wrong when a machine does not count those ballots that it’s not supposed to count.

OLSON: That’s absolutely correct, Justice Scalia. It would--

JUSTICE SCALIA: The voters who detach the chads entirely, and the machine as predicted does not count those chads, where those instructions are not followed, there isn’t any wrong.

OLSON: That’s correct. This has been euphemistically referred to as legal votes that haven’t been counted. These are ballots where the system created by Florida, both with respect to the initial tabulation and the preferred system for the recount, the automatic recount in close elections, is to submit those ballots to the same mechanical, objective scrutiny that the initial count was done.

And those were not counted either because there were votes for more than one candidate, which would make them “overvotes” I guess they’re calling them, or that they read as no-vote, which many people do. Many people do not vote in the presidential election, even those that are voting for other offices.

JUSTICE SOUTER: But as to the “undervotes,” and as to the undervotes in which there is arguably some expression of intent on the ballot that the machine didn’t pick up, the majority of the Florida Supreme Court says you’re wrong. They interpreted the statute otherwise.

Are you saying here that their interpretation was so far unreasonable in defining legal vote as not to be a judicial act entitled, in effect, to the presumption of reasonable interpretation under Article II?

OLSON: Yes, that is our contention. And that has to be done--that contention is based upon everything else in the Florida statute, including the contest provisions. The manual recount provisions--

JUSTICE SOUTER: What is it in the contest provision that supports the theory that that was a rogue, illegal judicial act?

OLSON: Because there is no reference to them even though that process is referred to--

JUSTICE STEVENS: There’s no definition. There’s no definition. Doesn’t the court have to come up with a definition of--

OLSON: In the context of the statute as a whole, manual recounts are treated quite extensively as a last resort for a tabulation error at the discretion of canvassing officials--

STEVENS: At?

OLSON: At.

JUSTICE STEVENS: The protest?

OLSON: That’s correct. And we submit--

CHIEF JUSTICE REHNQUIST: Mr. Olson--

OLSON: --and I’d like to reserve the balance of my--

CHIEF JUSTICE REHNQUIST: --is it critical to your position that the Florida Supreme Court erred in its resolution of the “shall-may” controversy, in its first opinion--

OLSON: I’m sorry, I missed...

CHIEF JUSTICE REHNQUIST: Is it critical to your position, because you’re tying the two cases together, that the Florida Supreme Court made that kind of error in its resolution of the conflict between “shall” and “may” in this--

OLSON: I don’t think it’s critical to our--what we’re saying is that what--the court expanded upon its previous decision that was vacated in this case. It used the time period that it opened up to do this manual recount to then build upon in the Dec. 8 opinion.

CHIEF JUSTICE REHNQUIST: Very well, Mr. Olson. Mr. Klock, we’ll hear from you.

JOSEPH P. KLOCK Jr., lawyer for Florida secretary of state: Mr. Chief Justice, and may it please the court, if I could start by addressing a question of Justice Souter with respect to the standards: 166 does have time limits. The time limit of 166 is set by the certification, which is seven days after the election.

The time of the contest, there are time limits there as well. You have 10 days to file a complaint, 10 days to file an answer.

And in the context of a presidential election, you then, of course, have the Dec. 12 deadline. So, therefore, there are time constraints that are there.

JUSTICE BREYER: Which is federal, not state, and occurs in the safe harbor statute.

KLOCK: Yes, but--

JUSTICE BREYER: Or as a result of the safe harbor statute.

KLOCK: Yes, Your Honor, but this court, in its opinion that it handed down in the initial Harris case pointed out that it was clear that there was a desire and a wish by the Legislature to preserve the safe harbor.

JUSTICE BREYER: Oh, there’s no--I thought the Florida court accepted that too in its current opinion.

KLOCK: They did say that, exactly, Your Honor.

JUSTICE BREYER: Mr. Klock--

CHIEF JUSTICE REHNQUIST: You refer to the first [Katherine] Harris case. We think of it as the first Bush vs. Gore case. You’re talking about the same?

KLOCK: Yes, Your Honor.

JUSTICE SOUTER: Mr. Klock, will you address Justice Breyer’s question of a moment ago? If there were to be a uniform standard laid down, I suppose at this point by the Leon County Circuit Court, or in any other valid way, in your judgment, what should the substitute standard be?

KLOCK: I’ll try to answer that question. You would start, I would believe, with the requirements that the voter has when they go into the booth. That would be a standard to start with.

The voter is told in the polling place, and then when they walk into the booth, that what you’re supposed to do, with respect to the punch cards, is put the ballot in, punch your selections, take the ballot out, and make sure there are no hanging pieces of paper attached to it.

The whole issue of what constitutes a legal vote, which the Democrats make much ado about, presumes that it’s a legal vote no matter what you do with the card. And presumably, you could take the card out of the polling place and not stick it in the box and they would consider that to be a legal vote.

The fact is, is that a legal vote, at the very basics, has to at least be following the instructions that you were given and placing the ballot in the box.

JUSTICE BREYER: No, we’re asking, I think, not what the Florida election law is at this point, in your opinion, but rather if, under the equal protection clause--and I’m drawing on your experience as a person familiar with elections across the country, you’ve looked into this--

KLOCK: Yes, sir.

JUSTICE BREYER: --what would be a fair subsidiary standard applied uniformly, were it to be applied uniformly across all the counties of Florida, including Broward, a fair, uniform standard for undervotes?

Remember, Indiana has a statute, Michigan has a statute, 33 states have a statute where they just say “intent of voter.” But in your opinion, because of the hanging chad, et cetera, et cetera, what is a fair, not necessarily Florida law, but a fair, uniform standard?

KLOCK: Without being disrespectful, Your Honor, I think you’ve answered the question in terms of phrasing the question. There are any number of statutory schemes that you could select from, if you were a legislature. But as a court, I don’t think that the Supreme Court of Florida, respectfully, or any other court can sit down and write the standards that are going to be applied--

JUSTICE BREYER: In your opinion, if you were looking for a basically fair standard, to take one out of a hat, Indiana or Palm Beach, 1990, in your opinion would be a basically fair one?

KLOCK: If I were to take one out of a hat, Your Honor, if I was a legislature, what I would do is I would hold that you have to punch the chad through on a ballot. In those situations where you have a ballot where there are only indentations in every race, you might then come up with a different standard. But the only problem that we have here is created by people who did not follow instructions.

JUSTICE BREYER: OK. Can I ask you a different question on Florida law?

KLOCK: Yes, sir.

JUSTICE BREYER: And the question on Florida law is simply this: What the statute, as I take it, the contest statute, lists grounds for contesting? One of those grounds is rejecting a sufficient number of legal votes, sufficient to place the election in doubt. And then the circuit judge is given the power to investigate that allegation, just to look into it.

KLOCK: Yes.

JUSTICE BREYER: So why would it be illegal under Florida law to have a recount just to investigate whether this allegation is or is not so?

KLOCK: The justice’s question assumes that they are legal votes.

JUSTICE BREYER: There might be some in there that are legal under anybody’s standard.

KLOCK: Your Honor, if they are not properly--if the ballot is not properly executed--it’s not a legal vote. The only case in Florida that even touches upon this in terms of a machine ballot is the Hogan case from the 4th District Court of Appeal.

In the 4th District Court of Appeal, that candidate lost by three votes, and he went during the protest phase to the canvassing board and asked for a manual recount to be done, and they exercised their discretion and said no. And in that case, there is a discussion. He raised the argument that there were ballots in there that had hanging chads and this, that and the other thing; they would hear none of it. And when it went up on appeal, it was affirmed.

So the fact of the matter is, is that the only case that we have that deals with this handles it in that fashion. And I would respectfully suggest that a ballot that is not properly punched is not a legal ballot. And I think also, sir, if you go through an analysis of the vice president’s arguments and supporting what the Supreme Court does, there’s sort of an omelet that is created by going and picking through different statutes.

For instance, the clear intent standard comes from a statute that deals with a damaged ballot where you have to create, to put through the machine, a substitute ballot.

And there are very clear directions as to what to do to preserve the integrity of the ballot.

And the Beckstrom case, which you will no doubt hear much about as the argument proceeds, dealt with that kind of situation. If there was a manual recount there, the court did not pass on the propriety of it. The issue was, if the election officials took ballots and marked over the ballots, instead of creating a separate substitute ballot, they took that ballot and marked it over so it could go through an optical scanner, which the court found to be gross negligence, whether they would discount the votes. That was the issue that was present there.

So I think, if you look through Florida law, it is relatively clear that there is no basis whatsoever--

JUSTICE STEVENS: May I just ask this question? If you did have a situation, I know your position is different, where there were some uncounted ballots due to a machine malfunction, for example, would it not make sense to assume that the standard you use for damaged ballots would be the same standard you use in that situation?

KLOCK: I don’t think so, sir.

JUSTICE STEVENS: What standard would you use--

KLOCK: Well--

JUSTICE STEVENS: --in the situation I proposed then?

KLOCK: Justice Brennan, the difficulty is that under--I’m sorry.

(LAUGHTER)

That’s why they tell you not to do that.

The standard that is in 166 is in--is dealing with the protest phase, and it brought about in 1988--

JUSTICE STEVENS: I understand, but my question is, if you don’t use that standard, what standard would you use for my hypothetical?

KLOCK: The legislature would have to create one, sir. I don’t know what standard--

JUSTICE SOUTER: You’re saying that they can’t interpret statute in which there is no explicit definition.

KLOCK: What I’m saying is--

JUSTICE SOUTER: They have to throw their hands up.

KLOCK: No, Justice Breyer. What I’m saying is--

JUSTICE SOUTER: I’m Justice Souter. You’ve got to cut that out.

(LAUGHTER)

KLOCK: I will now give up. What I’m saying, sir, is this: that you cannot be in a situation of using the word “interpret” to explain anything that a court does. The word “interpret” cannot carry that much baggage.

JUSTICE SOUTER: But you go to the opposite extreme and say, it seems to me, that they can’t look, as Justice Stevens suggested, to a statute which deals with certainly a closely analogous subject at a near stage. And it seems to me that you, in effect, go to the opposite extreme that you’re excoriating the Florida Supreme Court for, and say they can’t interpret at all.

KLOCK: I think what the Florida Supreme Court should do in that instance is note the very tight restrictions that exist under the protest phase. They require that you find voter intent with respect to a damaged ballot. They also vest it in the canvassing board, and the canvassing board is composed of a defined group of officials, a county judge, the elections supervisor and the chairman of the county commission. It is very limited--

JUSTICE SOUTER: But that means the court apparently cannot define “legal vote.”

KLOCK: That’s correct.

JUSTICE SCALIA: Mr. Klock? I’m Scalia.

(LAUGHTER)

KLOCK: Yes, sir? I’ll remember that.

JUSTICE SCALIA: Correct me if I’m wrong--

KLOCK: It will be hard to forget.

(LAUGHTER)

JUSTICE SCALIA: Correct me if I’m wrong, but I had thought that although you don’t take into account improperly marked ballots for purposes of determining whether there will be a manual recount, I had thought that when there is a manual recount for some other reason, and you come across ballots of this sort, that you can count them; that, for that purpose, you can decide, “Oh, lookit. There’s a hanging chad. The machine didn’t count it. It’s clear what the intent of the voter was. We’ll count it.” Is that not correct?

KLOCK: Yes, Justice Scalia, that is correct.

JUSTICE SCALIA: OK.

KLOCK: If you have a situation--

JUSTICE SCALIA: It’s correct that you use the intent of the voter standard in that situation?

KLOCK: Pardon me, sir?

JUSTICE SCALIA: It’s correct that you use the intent of the voter standard in that situation?

KLOCK: It is correct that that statute provides that. I think that that statute--there could be problems under it, but that statute was designed for a very limited situation where there was a problem with the mechanism of voting. It was not designed to handle voter error.

And that is absolutely clear, because otherwise, Your Honor, what would occur is the following: that in every election you have that was close, you would have an automatic recount, and then irrespective of what the canvassing board does, just load all the ballots together and put them on a truck and send them to Tallahassee.

Because if there is no standard whatsoever, and in any election contest that you’re unhappy with the election, you can send the ballots to Tallahassee, then you have a problem that is created that would not exist under 166.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Klock.

KLOCK: Thank you.

CHIEF JUSTICE REHNQUIST: Mr. Boies, we’ll hear from you.

DAVID BOIES, lawyer for the Gore campaign: 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.

JUSTICE KENNEDY: Could we begin with jurisdiction first?

BOIES: Yes.

JUSTICE 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’s 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.

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?

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?

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.

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 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.

CHIEF JUSTICE 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--

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?

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 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--

JUSTICE 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--

JUSTICE 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 vs. 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?

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.

BOIES: No.

JUSTICE 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.”

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 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.

JUSTICE 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--

JUSTICE 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.

JUSTICE 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.

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”?

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?

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.

BOIES: Your Honor, if I could, one of the things that was argued from the beginning by Gov. 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 focusing 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.

BOIES: There are three different groups of votes, OK, and--with respect--Broward, Palm Beach and Miami-Dade [counties]. 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?

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. [Barry] Richard, who was Gov. 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 Sen. [Joseph I.] Lieberman [of Connecticut].

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--

JUSTICE SCALIA: It not only said--

BOIES: --certification process.

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

BOIES: Yes, Your Honor.

JUSTICE 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.

JUSTICE 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--

JUSTICE SCALIA: It’s not added to the certification.

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

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--

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.

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.

BOIES: Right.

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

(CROSS TALK)

JUSTICE 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.

JUSTICE BREYER: So it doesn’t really matter.

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

JUSTICE BREYER: But Broward might.

BOIES: But Broward might.

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

BOIES: Broward is a different situation.

JUSTICE BREYER: Yes.

BOIES: 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 Nov. 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?

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--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--

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?

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.

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 catchall 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 catchall provision that says, “Look at the intent of the voter.”

JUSTICE SOUTER: But they have ended up with a catchall provision because, I assume, there may be cases in which the general rule would otherwise operate in which there is an affirmative counterindication 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.

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?

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 counterindication, 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--

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?

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

JUSTICE SOUTER: You’d tell them to count every vote. (LAUGHTER) You’d tell them to count every vote, Mr. Boies.

BOIES: I would tell them to count every vote.

(LAUGHTER)

JUSTICE SOUTER: Let me ask you--

JUSTICE STEVENS: 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.

JUSTICE 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.

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.

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”?

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 [N. Sanders] Sauls?

BOIES: Yes, Your Honor.

CHIEF JUSTICE 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.

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?

BOIES: Yes, he did.

CHIEF JUSTICE 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 [Charles] 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?

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?

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 oth