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 rights conferred there, we’re construing it this way.”
TRIBE: It seems to me that as a tiebreaker, as a way of shedding light on the provisions that are in conflict, so long as it’s not done in a way that conflicts with a federal mandate, they’re not violating any...
SCALIA: Mr. Tribe, I don’t agree with that. I don’t think that the Florida Supreme Court used the Florida constitution as a tool of interpretation of this statute.
If you look at this opinion, it separated it to include various sections, issues, legal—four, a legal opinion of the division of elections; five, the applicable law; Roman six, statutory ambiguity. And that’s—and, seven, legislative intent. That’s the section where they construe the statute in view of these ambiguities and so forth.
That sections concludes, under this statutory scheme, the county canvassing boards are required to submit their returns to the department by 5 p.m. of the seventh day following the election. The statutes make no provision for exceptions following a manual recount.
If a board fails to meet the deadline, the secretary is not required to ignore the county’s returns, but, rather, is permitted to ignore the returns within the parameters of this statutory scheme.
So what the statutory interpretation gives you is a firm determination date of December 7 and discretion in the secretary.
SCALIA: The opinion continues, “VIII. The right to vote. The text of our Florida Constitution begins with a declaration of rights.” And it goes on to say that to the extent the legislature may enact laws regulating the electoral process, those laws are valid only if they 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 quite clearly saying, having determined what the legislative intent was, we find that our state Constitution trumps that legislative intent. I don’t think there’s any other way to read it. And that is a real problem, it seems to me, under Article II, because, in fact, there is no right of suffrage under Article II. There’s a right of suffrage in voting for the legislature, but Article II makes it very clear that the legislature can, itself, appoint the electors.
TRIBE: But it seems to me that it’s already been conceded that the legislature can delegate that function to the judiciary. And when Justice Kennedy asked if it can delegate the function to the judiciary, that is what McPherson seems to suggest. Then can it not delegate something less? That is, can it not give the judiciary a role of the sort that it’s exercising here?
After all, the legislature—and this is important, it’s not true in every state—the legislature itself repromulgates the Constitution every several years, and then it’s ratified by the people.