Supreme Court Transcripts

SOUTER: Isn’t there another way of looking at what the Florida court did, and that was in effect to apply the statute to the interpretive criterion, that where there is any discretion for interpretation, an unconstitutional result should be avoided? And because you have here a statute, as I understand it, that regulates both federal and state recounts, that much is, I think, is clear...

TRIBE: Right.

SOUTER: ... the only way to avoid an unconstitutional meaning of the statute, so far as Florida law was concerned, was to get into this constitutional concern about preserving the franchise, and that because the legislature intended one standard to cover both federal and state recounts, it therefore is valid to consider the state constitution in order to derive a general meaning that will apply to a federal as well as a state election? Can you look at it that way?

TRIBE: I fully accept that view, Justice Souter. I would supplement it with one important point. We’re not dealing here with a decision in which within the gray area where a court could reasonable go either way this court simply said, “We don’t care about the federal considerations.” It in particular exercised its equitable powers in favor of the petitioner in order to facilitate meeting the December 12 deadline while still being able to have electoral contests.

TRIBE: That December 12 deadline comes purely from federal law.

BREYER: Can you just go back to your characterization of the opinion? I think we’d all agree that, given that the legislature has to select the manner, a state can’t say, “Our Constitution selects the electors,” I suppose...

TRIBE: That’s right.

BREYER: The thinking of this opinion: Suppose the court had said, “Look, we reach our result based on the canons we found in Blackstone.” Now nobody’s going to say they said Blackstone’s selecting the electors, right?

TRIBE: I think that...

BREYER: All right. Now, suppose they said we reached this decision based on the values found in the Constitution. That would be like Blackstone.

TRIBE: I think that’s right.

BREYER: Suppose they say, “Well, the legislature wants us to do X, but our constitution requires to do not X.” That might be different.

TRIBE: It might be different...

BREYER: Now, what is it that they’ve done here?

TRIBE: I certainly don’t think they’ve done the third. They did not say—I think when they underscored the presence of language that Justice Scalia read about what’s mandatory, they were simply being candid about the fact that they were acting in conflict with one part of the statute but the...

SCALIA: In a separate section of the opinion, Professor Tribe, that is entitled, “The right to vote.” It is after the legislative intent section, and it says categorically, “To the extent the legislature may enact laws, they’re invalid.”

And I suggest perhaps the reason that the court did it is that however expansive the doctrine of constitutional doubt is, there is no way that it can make December 7 mean anything except December 7.

SCALIA: I mean, they were almost constrained to use the Constitution to override the firm deadline that was explicitly set forth in...

TRIBE: Justice Scalia, both you and I think at one point Justice O’Connor, in pointing to the particular dates that came out differently under the approach that this court used from what would have emerged if they had looked only at 102.111, are making a mistake, with all respect.

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