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MR. OLSON: Thank you, Mr. Chief Justice. I would like to start with a point or two with respect to the equal protection due process component of this case. The Florida Democratic Party on November 20 was asking the — november 20th of this year, was asking the Florida Supreme Court to establish uniform standards with respect to the looking at and evaluating these ballots, a recognition that there were no uniform standards and that there ought to be. Last Tuesday in the 11th Circuit, unless I misheard him, the attorney for the Attorney General of Florida said that the standards for evaluating these ballots are evolving. There is no question, based upon this record, that there are different standards from county to county.

QUESTION: And there are different ballots from county to county too, Mr. Olson, and that’s part of the argument that I don’t understand. There are machines, there’s the optical scanning, and then there are a whole variety of ballots. There is the butterfly ballot that we’ve heard about and other kinds of postcard ballots. How can you have one standard when there are so many varieties of ballots?

MR. OLSON: Certainly the standard should be that similarly situated voters and similarly situated ballots ought to be evaluated by comparable standards.

QUESTION: Then you would have to have several standards, county by county would it be?

MR. OLSON: You’re certainly going to have to look at a ballot that you mark in one way different than these punch card ballots. Our point is, with respect to the punch card ballots, is that there are different standards for evaluating those ballots from county to county and it is a documented history in this case that there have been different standards between November 7th and the present with respect to how those punch card ballots are evaluated. Palm Springs is the best example. They started with a clear rule which had been articulated and explained to the voters, by the way, as of 1990. Then they got into the process of evaluating these ballots and changed the standard from moment to moment during the first day and again, they evolved from the standard that the chad had to be punched through to the so-called dimpled ballot standard, indentations on the ballot. There was a reason why that was done. It was because they weren’t producing enough additional votes so that there’s pressure on to change the standards. And that will happen in a situation which is where the process is ultimately subjective, completely up to the discretion of the official, and there’s no requirement of any uniformity. Now, we now have something that’s worse than that. We have standards that are different throughout 64 different counties. We’ve got only undercounts being considered where an indentation on a ballot will now be counted as a vote, but other ballots that may have indentations aren’t going to be counted at all. The overvotes are in a different category, and in this very remedy the ballots in Miami-Dade are being treated differently. Some of them have been all examined and the balance of the process, the remaining 80 percent will be looked at only in connection with the undercounts.

QUESTION: Mr. Olson, do I understand that your argument on the equal protection branch would render academic what was your main argument that’s troublesome, that is that we must say that the Florida Supreme Court was so misguided in its application of its own law that we reject that, and we, the Supreme Court of the United States, decide what the Florida law is?

MR. OLSON: I’m not sure I know the answer to that question, whether that would render academic the challenge. There is a clear constitutional violation, in our opinion, with respect to Article II because virtually every aspect of Florida’s election code has been changed as a result of these two decisions.

QUESTION: But the Florida Supreme Court told us that it hasn’t been changed and just looking at one of the cases that you cite frequently, the O’Brien against Skinner case, this court said, well, maybe we would have decided the New York law differently but the highest court of the state has concluded otherwise. It is not our function to construe a state statute contrary to the construction given it by the highest court of the state.

MR. OLSON: The only thing I can say in response to that is that what this Court said one week ago today, that as a general rule the court defers to a state court’s interpretation of a state statute, but not where the legislature is acting under authority granted to it by the Constitution of the United States. The final point I would like to make is with respect to section 5. It is quite clear that the court in both the earlier decision and the decision last Friday was aware and concerned about compliance with section 5. It construed section 5 in a way that allowed it by labeling what it was doing as interpretation to change in dramatic respects the Florida election law, and we submit because it did, so misconstrued the applicability not only with respect to finality but the other part of section 5 requires a determination of controversies pursuant to a set of laws that are in place at the time of the elections.

QUESTION: If you start with the premise, a clear intent of a vote should count, where there’s a clear intent on the ballot, it should count as a vote, can’t you reasonably get the majority’s conclusion?

MR. OLSON: I don’t believe so because we know different standards were being applied to get to that point, and they were having different results.

CHIEF JUSTICE REHNQUIST: Thank you, Mr.Olson. The case is submitted.