Supreme Court Transcripts
W A S H I N G T O N, Dec. 1 -- This is an uncorrected transcript of arguments before the Supreme Court on the validity of Florida recounts. Transcription provided by Federal Document Clearing House.
REHNQUIST: But it doesn’t say that. It goes on to say, “Look,in the light of the Florida constitution and the general rightsconferred there, we’re construing it this way.”
TRIBE: It seems to me that as a tiebreaker, as a way of sheddinglight on the provisions that are in conflict, so long as it’s not donein a way that conflicts with a federal mandate, they’re not violatingany...
SCALIA: Mr. Tribe, I don’t agree with that. I don’t think thatthe Florida Supreme Court used the Florida constitution as a tool ofinterpretation of this statute.
If you look at this opinion, it separated it to include varioussections, issues, legal—four, a legal opinion of the division ofelections; five, the applicable law; Roman six, statutory ambiguity.And that’s—and, seven, legislative intent. That’s the sectionwhere they construe the statute in view of these ambiguities and soforth.
That sections concludes, under this statutory scheme, the countycanvassing boards are required to submit their returns to thedepartment by 5 p.m. of the seventh day following the election. Thestatutes make no provision for exceptions following a manual recount.
If a board fails to meet the deadline, the secretary is notrequired to ignore the county’s returns, but, rather, is permitted toignore the returns within the parameters of this statutory scheme.
So what the statutory interpretation gives you is a firmdetermination date of December 7 and discretion in the secretary.
SCALIA: The opinion continues, “VIII. The right to vote. Thetext of our Florida Constitution begins with a declaration of rights.”And it goes on to say that to the extent the legislature may enactlaws regulating the electoral process, those laws are valid only ifthey impose no, quote, “unreasonable or unnecessary,” close quote,restraints on the rights of suffrage contained in the Constitution.
In other words, I read the Florida court’s opinion as quiteclearly saying, having determined what the legislative intent was, wefind that our state Constitution trumps that legislative intent. Idon’t think there’s any other way to read it. And that is a realproblem, it seems to me, under Article II, because, in fact, there isno right of suffrage under Article II. There’s a right of suffrage invoting for the legislature, but Article II makes it very clear thatthe legislature can, itself, appoint the electors.
TRIBE: But it seems to me that it’s already been conceded thatthe legislature can delegate that function to the judiciary. And whenJustice Kennedy asked if it can delegate the function to thejudiciary, that is what McPherson seems to suggest. Then can it notdelegate something less? That is, can it not give the judiciary arole of the sort that it’s exercising here?