Supreme Court Transcripts

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.

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.

It’s not as though this court promulgated a rule for the future about December 7: “In commemoration of Pearl Harbor, we say December 7 is the day.” No. What they did was say, “We have to find a date which will accommodate these conflicting statutory provisions and policies in light of what our Constitution tells us.”

And it would amaze—I would think amaze this court to see anyone saying that because an opinion was organized under Roman numeral headings...

SCALIA: And Professor Tribe...

TRIBE: ... in such a way that...

SCALIA: Isn’t it also true, Professor Tribe, that Part 8 of the opinion relies on four things: the Florida Constitution, earlier Florida decision-construing statutes, an Illinois case and a federal case...

TRIBE: Absolutely.

SCALIA: ... but not just the Illinois...

TRIBE: That’s right.

SCALIA: ... their Constitution.

TRIBE: And surely if...

SOUTER: And is it also true—is it also true that the inability to use Section 7 depended in the Florida Supreme Court’s reasoning not on the existence of the Constitution as the sole reason, but on the inability to make the December 7 date final and provide for the recounts within the times in which recounts can be called for?

What I’m saying is, didn’t they say that the date of the 7th cannot stand, not because of the constitution alone, but because there are other provisions in the statute that cannot be accommodated with sections—with the seventh day?

TRIBE: Exactly.


TRIBE: And I guess to take a...

GINSBURG: And they said that twice. And I think that’s critical, if you add to that, that we read a decision of a state court in the light most favorable to that court and not in the light least favorable.

I suppose there would be a possibility for this court to remand for clarification. But if there’s two readings, one that’s questionable and one that isn’t, all of our decisions suggest that we read the one...

TRIBE: Especially, I think, Justice Ginsburg, when the odds that these conceivable federal problems are indispensable to this result are overwhelmingly negative. That is, it’s not as though one cannot explain the result this court reached in the most conventional, standard ways.

TRIBE: And the fact that...

SCALIA: Professor Tribe, I would feel much better about that resolution if you could give me one sentence in the opinion that supports the second of these supposed alternative readings, that supports the proposition that the Florida Supreme Court was using the constitutional right to vote provisions as an interpretive tool to determine what the statute meant. I can’t find a single sentence to that.

TRIBE: I think, Justice Scalia, I can do a little better than find a sentence. The entire structure of that part of the opinion, as Justice Stevens points out, would be incoherent if the Constitution was decisive. That is the highest law in Florida. Why bother with all the rest if that is anything more than an interpretive guide?

SCALIA: You would bother with it because, having decided very clearly what the statute requires, and finding no way to get around the firm date set, you say the reason it’s bad is because of the state Constitution. That’s how it’s written. Now they might have...

TRIBE: No, but, Justice Scalia...

SCALIA: ... tried it another way, but its seems to me they didn’t.

TRIBE: But they also say that the provision that reaches the result that conflicts with the authorized recounts was written in 1951, but in 1989 they wrote a provision that unmistakably created discretion.

And we haven’t yet discussed this provision also created, the provision that when the returns are filed late, it doesn’t say throw them away, it doesn’t say give them back, it says fine every member of the canvassing board $200 a day.

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