Supreme Court Transcripts

W A S H I N G T O N, Dec. 1, 2000 -- 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?

After all, the legislature—and this is important, it’s nottrue in every state—the legislature itself repromulgates theConstitution every several years, and then it’s ratified by thepeople.

SOUTER: Isn’t there another way of looking at what the Floridacourt did, and that was in effect to apply the statute to theinterpretive criterion, that where there is any discretion forinterpretation, an unconstitutional result should be avoided? Andbecause you have here a statute, as I understand it, that regulatesboth federal and state recounts, that much is, I think, is clear...

TRIBE: Right.

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

TRIBE: I fully accept that view, Justice Souter. I wouldsupplement it with one important point. We’re not dealing here with adecision in which within the gray area where a court could reasonablego either way this court simply said, “We don’t care about the federalconsiderations.” It in particular exercised its equitable powers infavor of the petitioner in order to facilitate meeting the December 12deadline 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 theopinion? I think we’d all agree that, given that the legislature hasto select the manner, a state can’t say, “Our Constitution selects theelectors,” I suppose...

TRIBE: That’s right.

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

TRIBE: I think that...

BREYER: All right. Now, suppose they said we reached thisdecision based on the values found in the Constitution. That would belike Blackstone.

TRIBE: I think that’s right.

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

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 didnot say—I think when they underscored the presence of language thatJustice Scalia read about what’s mandatory, they were simply beingcandid about the fact that they were acting in conflict with one partof 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 legislativeintent section, and it says categorically, “To the extent thelegislature may enact laws, they’re invalid.”

And I suggest perhaps the reason that the court did it is thathowever expansive the doctrine of constitutional doubt is, there is noway that it can make December 7 mean anything except December 7.

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

TRIBE: Justice Scalia, both you and I think at one point JusticeO’Connor, in pointing to the particular dates that came outdifferently under the approach that this court used from what wouldhave 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 futureabout December 7: “In commemoration of Pearl Harbor, we say December7 is the day.” No. What they did was say, “We have to find a datewhich will accommodate these conflicting statutory provisions andpolicies in light of what our Constitution tells us.”

And it would amaze—I would think amaze this court to seeanyone saying that because an opinion was organized under Romannumeral headings...

SCALIA: And Professor Tribe...

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

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

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 theinability to use Section 7 depended in the Florida Supreme Court’sreasoning not on the existence of the Constitution as the sole reason,but on the inability to make the December 7 date final and provide forthe 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 7thcannot stand, not because of the constitution alone, but because thereare other provisions in the statute that cannot be accommodated withsections—with the seventh day?

TRIBE: Exactly.

SOUTER: Yes.

TRIBE: And I guess to take a...

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

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

TRIBE: Especially, I think, Justice Ginsburg, when the odds thatthese conceivable federal problems are indispensable to this resultare overwhelmingly negative. That is, it’s not as though one cannotexplain 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 thatresolution if you could give me one sentence in the opinion thatsupports the second of these supposed alternative readings, thatsupports the proposition that the Florida Supreme Court was using theconstitutional right to vote provisions as an interpretive tool todetermine what the statute meant. I can’t find a single sentence tothat.

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

SCALIA: You would bother with it because, having decided veryclearly what the statute requires, and finding no way to get aroundthe firm date set, you say the reason it’s bad is because of the stateConstitution. 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 theydidn’t.

TRIBE: But they also say that the provision that reaches theresult that conflicts with the authorized recounts was written in1951, but in 1989 they wrote a provision that unmistakably createddiscretion.

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

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