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ORAL ARGUMENT OF JOSEPH P. KLOCK, JR. ON BEHALF OF RESPONDENTS KATHERINE HARRIS, ET AL., IN SUPPORT OF PETITIONERS.

MR. KLOCK: Mr. Chief Justice, and may it please the Court: If I could start by addressing a question of Justice Souter with respect to the standards, 166 does have time limits. The time limit of 166 is set by the certification, which is seven days after the election. The time of the contest, there are time limits there as well. You have ten days to file a complaint, ten days to file an answer, and in the context of a presidential election, you then of course have the December 12 deadline. So therefore, there are time —

QUESTION: Which is federal, not state, and occurs in the safe harbor statute, or as a result of the safe harbor statute.

MR. OLSON: Yes, Your Honor, but this Court in its opinion that it handed down in the initial Harris case pointed out that it was clear that there was a desire in which by the legislature to preserve the safe harbor.

QUESTION: Oh, there is no — .

QUESTION: I thought the Florida court accepted that, too, in its current opinion.

MR. KLOCK: They did say that exactly, Your Honor.

QUESTION: Mr. Klock, will you — you refer to the first Harris case. We think of it as the first Bush v. Gore case. You are talking about the same — .

MR. KLOCK: Yes, Your Honor.

QUESTION: Mr. Klock, will you address Justice Breyer’s question of a moment ago, if there were to be a uniform standard laid down, I suppose at this point by the Leon County Circuit Court or in any other valid way in your judgment, what should the substantive standard be?

MR. KLOCK: I’ll try to answer that question. You would start, I would believe, with the requirements that the voter has when they go into the booth. That would be a standard to start with. The voter is told in the polling place and then when they walk into the booth that what you are supposed to do with respect to the punch cards is put the ballot in, punch your selections, take the ballot out, and make sure there are no hanging pieces of paper attached to it. The whole issue of what constitutes a legal vote which the Democrats make much ado about presumes that it’s a legal vote no matter what you do with the card. And presumably, you could take the card out of the polling place and not stick it in the box and they would consider that to be a legal vote. The fact is that a legal vote at the very basics has to at least be following the instructions that you are given and placing the ballot in the box.

QUESTION: No, we’re asking, I think —.

MR. KLOCK: No.

QUESTION: Not what the Florida election law is at this point in your opinion, but rather if under the Equal Protection Clause, and I’m drawing on your experience as a person familiar with elections across the country. You have looked into this.

MR. KLOCK: Yes, sir.

QUESTION: What would be a fair subsidiary standard applied uniformly, were it to be applied uniformly across all the counties of Florida, including Broward, a fair uniform standard for undervotes. Remember, Indiana has a statute, Michigan has a statute, 33 states have a statute where they just say intent of voter, but in your opinion because of the hanging chad, etc., etc., what is a fair, not necessarily Florida law, but a fair uniform standard?

MR. KLOCK: Without being disrespectful, Your Honor, I think you have answered the question in terms of phrasing the question. There are any number of statutory schemes that you could select from if you were a legislature, but as a court, I don’t think that the Supreme Court of Florida respectfully, or any other court can sit down and write the standards that are going to be applied. If you are a legislature —.

QUESTION: But in your opinion, if you were looking for a basically fair standard, to take one out of a hat, Indiana, or Palm Beach 1990, in your opinion would be a basically fair one?

MR. KLOCK: If I were to take one out of a hat, Your Honor, if I was a legislature, what I would do is I would hold that you have to punch the chad through on a ballot. In those situations where you have a ballot where there are only indentations in every race, you might then come up with a different standard, but the only problem that we have here is created by people who did not follow instructions.

QUESTION: Okay. Can I ask you a different question on Florida law?

MR. KLOCK: Yes, sir.

QUESTION: And the question on Florida law is simply this, what the statute is. I take it the contest statute lists grounds for contesting, one of those grounds is rejecting a sufficient number of legal votes sufficient to place the election in doubt, and then the circuit judge is given the power to investigate that allegation, just to look into it.

MR. KLOCK: Yes. There were no —.

QUESTION: So why would it be illegal under Florida law to have a recount just to investigate whether this allegation is or is not so?

MR. KLOCK: The Justice’s question assumes that they are legal votes.

QUESTION: There might be some in there that are legal under anybody’s standard.

MR. KLOCK: Your Honor, if they are not properly, if the ballot is not properly executed, it’s not a legal vote. The only case in Florida that even touches upon this in terms of a machine ballot is the Hogan case from the Fourth District Court of Appeal. In the Fourth District Court of Appeal, that candidate lost by three votes, and he went during the protest phase to the canvassing board and asked for a manual recount to be done and they exercised their discretion and said no. And in that case, there is a discussion. He raised the argument that there were ballots in there that had hanging chads and this that and the other thing. They would hear none of it and when it went up on appeal, it was affirmed. So the fact of the matter is that the only case that we have that deals with this handles it in that fashion, and I would respectfully suggest that a ballot that is not properly punched is not a legal ballot. And I think also, sir, if you go through an analysis of the Vice President’s arguments in supporting what the Supreme Court does, there is sort of an omelet that is created by going and picking through different statutes. For instance, the clear intent standard comes from a statute that deals with a damaged ballot where you have to create, to put through the machine, a substitute ballot, and there are very clear directions as to what to do to preserve the integrity of the ballot. And the Beckstrom case, which you will no doubt hear much about as the argument proceeds, dealt with that kind of situation. There was a manual recount there; the court did not pass on the propriety of it. The issue was if the election officials took ballots and marked over the ballots instead of creating a separate substitute ballot, they took that ballot and marked it over so it could go through an optical scanner, which the court found to be gross negligence whether they would discount the votes. That was the issue that was present there. So I think if you look through Florida law it is relatively clear that there was no basis whatsoever to be able to find — .

QUESTION: Let me just ask this question. If you did have a situation, I know your position is different, where there were some uncounted ballots due to a machine malfunction, for example, would it not make sense to assume that the standard used for damaged ballots would be the same standard you use in that situation?

MR. KLOCK: I don’t think so, sir.

QUESTION: What standard would you use in the situation I propose, then?

MR. KLOCK: Well, Justice Brennan, the difficulty is that under — I’m sorry. That’s why they tell you not to do that. The standard that is in 166 is in, is dealing with the protest phase, and it was brought about in 1988.

QUESTION: I understand, but my question is if you don’t use that standard, what standard would you use for my hypothetical?

MR. KLOCK: The legislature would have to create one, sir. I don’t know what standard — .

QUESTION: You are saying that they can’t interpret a statute in which there is no explicit definition.

MR. KLOCK: What I’m saying is — .

QUESTION: They have to throw their hands up?

MR. KLOCK: No. Justice Breyer, what I’m saying is that — .

QUESTION: I’m Justice Souter — you’d better cut that out.

MR. KLOCK: I will now give up. What I’m saying, sir, is this. That you cannot be in a situation of using the word interpret to explain anything that a court does. The word interpret cannot carry that much baggage.

QUESTION: But you go to the opposite extreme and say, it seems to me, that they cannot look, as Justice Stevens suggested, to a statute which deals with, and certainly a closely analogous subject at a near stage, and it seems to me that you in effect go to the opposite extreme that you are excoriating the Florida Supreme Court for and say they can’t interpret at all.

MR. KLOCK: I think what the Florida Supreme Court should do in that instance is note the very tight restrictions that exist under the protest phase. They require that you find voter intent with respect to a damaged ballot. They also vested in the canvassing board, and the canvassing board is composed of a certain, a defined group of officials, a county judge, the election supervisor, the chairman of the county commission, it is very limited.

QUESTION: But that means the court apparently cannot define legal vote.

MR. KLOCK: That’s correct.

QUESTION: Mr. Klock — I’m Scalia.

MR. KLOCK: Yes, sir. I remember that. You correct me. It will be hard to forget.

QUESTION: Correct me if I’m wrong, but I had thought that although you don’t take into account improperly marked ballots for purposes of determining whether there will be a manual recount, I had thought that when there is a manual recount for some other reason, and you come across ballots of this sort that you can count them, that for that purpose you can decide oh, look at, there is a hanging chad. The machine didn’t count it. It’s clear what the intent of the voter are. We’ll count it. Is that not correct?

MR. KLOCK: Yes. Justice Scalia, that is correct. If you have a situation — .

QUESTION: It’s correct if you use the intent of the voter standard in that situation?

MR. KLOCK: Pardon me, sir?

QUESTION: It’s correct that you use the intent of the voter situation, standard in that situation? That’s what I understand the answer to be.

MR. KLOCK: It is correct that that statute provides. That I think that that statute, there could be problems under it, but that statute was designed for a very limited situation where there was a problem with the mechanism of voting. It was not designed to handle voter error and that is absolutely clear because otherwise, Your Honor, what would occur is the following. That in every election that have you that was close, you would have an automatic recount and then irrespective of what the canvassing board does, just load all the ballots together and put them on a truck and send them to Tallahassee because if there is no standard whatsoever and in any election contest that you are unhappy with the election, you can send the ballots to Tallahassee, then have you a problem that is created that would not exist — .

QUESTION: Thank you, Mr. Klock. Mr. Boies, we’ll hear from you.