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ORAL ARGUMENT OF THEODORE B. OLSON ON BEHALF OF THE PETITIONERS.

MR. OLSON: Mr. Chief Justice, thank you, and may it please the Court: Just one week ago, this Court vacated the Florida Supreme Court’s November 21 revision of Florida’s election code, which had changed statutory deadlines, severely limited the discretion of the State’s chief election officer, changed the meaning of words such as shall and may into shall not and may not, and authorized extensive standardless and unequal manual ballot recounts in selected Florida counties. Just four days later, without a single reference to this Court’s December 4 ruling, the Florida Supreme Court issued a new, wholesale post-election revision of Florida’s election law. That decision not only changed Florida election law yet again, it also explicitly referred to, relied upon, and expanded its November 21 judgment that this Court had made into a nullity.

QUESTION: Mr. Olson —

QUESTION: Can you begin by telling us our federal jurisdiction, where is the federal question here?

MR. OLSON: The federal question arises out of the fact that the Florida Supreme Court was violating Article II, section 1 of the Constitution, and it was conducting itself in violation of section 5 of Title III of federal law.

QUESTION: On the first, it seems to me essential to the republican theory of government that the constitutions of the United States and the states are the basic charter, and to say that the legislature of the state is unmoored from its own constitution and it can’t use its courts, and it can’t use its executive agency, even you, your side, concedes it can use the state agencies, it seems to me a holding which has grave implications for our republican theory of government.

MR. OLSON: Justice Kennedy, the Constitution specifically vested the authority to determine the manner of the appointment of the electors in state legislatures. Legislatures, of course can use the executive branch in the states, and it may use in its discretion the judicial branch.

QUESTION: Then why didn’t it do that here?

MR. OLSON: It did not do that here because it did not specify — it did use the executive branch. In fact, it vested considerable authority in the Secretary of State, designating the Secretary of State as the chief elections official, and as we point out, the very first provision in the election code requires the Secretary of State to assure uniformity and consistency in the application and enforcement of the election law. The Secretary of State as the executive branch is also given considerably — considerable other responsibilities, when but — and to a certain extent, especially in connection with the contest phase of the election, certain authority was explicitly vested in the Circuit Court of the State of Florida, which is the trial court.

QUESTION: Oh, but you think then there is no appellate review in the Supreme Court of what a circuit court does?

MR. OLSON: Certainly the legislature did not have to provide appellate review.

QUESTION: Well, but it seemed apparently to just include selection of electors in the general election law provisions. It assumed that they would all be lumped in together somehow. They didn’t break it out.

MR. OLSON: Well, there are — there is a breakout with respect to various aspects of Florida statute and Florida election law. There is a specific grant of authority to the circuit courts. There is no reference to an appellate jurisdiction. It may not be the most powerful argument we bring to this Court.

QUESTION: I think that’s right.

MR. OLSON: Because notwithstanding, notwithstanding — well, the fact is that the Constitution may have been invoked.

QUESTION: Well, this is serious business because it indicates how unmoored, untethered the legislature is from the constitution of its own state, and it makes every state law issue a federal question. Can you use this theory and say that it creates some sort of presumption of validity that allows us to see whether this court or the executive has gone too far? Is that what you’re arguing?

MR. OLSON: No, I would say this with respect — it would have been a perfectly logical, and if you read the statutes, a perfectly logical, especially in the context of a presidential election, to stop this process at the circuit court, and not provide layers of appeal because given the time deadline, especially in the context of this election, the way it’s played out, there is not time for an appellate court.

QUESTION: I have the same problem Justice Kennedy does, apparently, which is, I would have thought you could say that Article II certainly creates a presumption that the scheme the legislature has set out will be followed even by judicial review in election matters, and that U.S. code section 5 likewise suggests that it may inform the reading of statutes crafted by the legislature so as to avoid having the law changed after the election. And I would have thought that that would be sufficient rather than to raise an appropriate federal question, rather than to say there’s no judicial review here in Florida.

MR. OLSON: I think that I don’t disagree with that except to the extent that I think that the argument we presented and amplified on in our briefs is a good argument, it’s a solid argument. It is consistent with the way the code is set up, and it’s particularly consistent with the timetable that’s available in a presidential election. However —.

QUESTION: Well, it’s pretty close. You can say it could be interpreted that way by the Florida Supreme Court, I suppose. You think it must be? Or is your point that even in close calls we have to revisit the Florida Supreme Court’s opinion?

MR. OLSON: No, I think that it is particularly in this case where there’s been two wholesale revisions, major restructuring of the Florida Election Code, we don’t even get close to that question at all. It would be unfortunate to assume that the legislature devolved this authority on its judiciary sub silentio. There is no specific reference to it. But in this case, as we have pointed out, especially the decision of last Friday, there was a major overhaul in almost every conceivable way.

QUESTION: Mr. Olson, as I understand your argument, you rely on Leser v. Garnett and Hawke v. Smith, and is it critical to your Article II argument that we read the word legislature as narrowly, I mean the power granted the legislature as similar to that granted in Article V of the Constitution, as those cases dealt with?

MR. OLSON: No, I don’t think it’s necessary.

QUESTION: So your reliance on — you really are not relying on those cases.

MR. OLSON: Well, I think those cases support the argument, but as we said —.

QUESTION: But if you’ve got to choose one version of the word legislature or the other —.

MR. OLSON: I think in a different context, it’s not necessarily the case, and certainly it is true that legislatures can employ the legislative process that might include vetoes by a state chief executive, or a referendum, when the state deliberately chooses to choose a legislative method to articulate a code. The point I think that’s most important and most —.

QUESTION: But is it the choice of the legislature or was it constitutionally limited to this provision? I’m a little unclear on what your theory is. Is it your theory, in other words, that they voluntarily did not permit appellate review of the lower courts in these election contests or that Article II prohibited them from allowing it?

MR. OLSON: No, Article II — we do not contend that Article II would prohibit them from fulfilling that process.

QUESTION: Of course Article V would have, and under Leser against Garnett and those cases, but you —.

MR. OLSON: In the context of this case we’re saying that they can include the judicial branch when they wish to do so, but under no circumstances is it consistent with the concept of the plan in the Constitution for the state, sub silentio, the state legislature sub silentio to turn over to the judiciary the power to completely reverse, revise, and change the election code in all of the major respects —.

QUESTION: Mr. Olson, with respect to the role of judicial review, you rely very much on the McPherson case, and two things strike me about that case. One is, if you’re right on your jurisdiction theory, then should not this Court have vacated instead of affirmed the decision of the Michigan Supreme Court in that case because the Michigan legislature didn’t confer upon the Michigan Supreme Court in that case any special authority of judicial review?

MR. OLSON: That’s entirely possible that that might be the case, Justice Ginsburg, but the entire text of the McPherson decision and its recitation of the legislative history or the history of legislation and acts by state legislatures to comply with it make it quite clear that the power is vested in the legislature itself.

QUESTION: But there was a decision by the court reviewing, which we affirmed. Under your jurisdiction theory as I see it, there was no role for the Michigan Supreme Court to play because Article II, section 1 gives the authority exclusively to the legislature, and the legislature has not provided for judicial review especially for that measure.

MR. OLSON: I think the context of that case is different, and that it’s entirely possible for the Court to have come to the conclusion it did in that case and we believe that case is compelling for the principle that we are arguing in this case, that there is no, the entire structure of what Florida did, its election code, in its effort to comply not only with Article II, but with Section 5 of Title 3, is such that it did not intend in any way to divest itself of the power to determine how the appointment of electors would be determined in a federal presidential election and most importantly, the resolution of cases and controversies, and disputes, with respect to the appointments —.

QUESTION: Three times, at least as I counted in McPherson itself, it refers to what is done by the legislative power under state constitutions as they exist. This is not the most clearly written opinion, and yet three times, they refer to the legislative power as constrained by the state’s constitution.

MR. OLSON: And I think that that’s important. I agree with you, Justice Ginsburg. It’s not the most clearly written opinion. But I think that in the context of that case, the relationship of the legislature to the Constitution in that case and the way that power was exercised, that ought to be reconciled with what we are urging the Court today, that a wholesale revision and abandonment of the legislative authority can’t be turned over, especially sub silentio, by a legislature simply because there is a constitution. There is a constitution in every state. There is a judiciary in every state. The judiciary performs certain functions in every state, and to go that length, one would assume that the judiciary in every state under that argument could overturn, rewrite, revise, and change the election law in presidential elections notwithstanding Article II, at will. Now, this was a major, major revision that took place on Friday.

QUESTION: Mr. Olson, isn’t that one of the issues in the case as to whether it was a major revision? Your opponents disagree, and I know you rely very heavily on the dissenting opinion in the Florida Supreme Court, but which opinion do we normally look to for issues of state law?

MR. OLSON: Well, I think that the dissenting opinion and the two dissenting opinions are very informative. We are relying on what the court did. If one looks at, for example, the recount provisions, before this revision under Florida law, manual recount under the protest provisions were discretionary, completely discretionary, conducted by canvassing boards during the protest phase of the election, post-election period, pursuant to legislatively defined procedures as to who could be present, for seven days after the election with respect to all ballots in a county, that was mandatory and only available, as we heard last week, for tabulation error up until this election. After the decision of December 8th in this context, those remand provisions, I mean those recount, manual recount provisions became mandatory instead of discretionary pursuant to judicial rather than executive supervision during the contest phase rather than the protest phase, even though it’s not even mentioned in the statute with respect to the contest phase, pursuant to ad hoc judicially established procedures rather than the procedures that are articulated quite carefully in the statute.

QUESTION: Well, on ad hoc judicially created procedures, the point of subsection 8 of 168. I mean, once we get into the contest phase, subsection 8 gives at least to the circuit court, leaving aside the question of appellate jurisdiction, about as broad a grant to fashion orders as I can imagine going into a statute.

MR. OLSON: Well, to read that, to read that provision and it’s written quite broadly, but to read that, one has to read that in the context of the entire statutory framework. If one reads it the way the Florida Supreme Court did, the entire process is tilted on its head. Where there used to be the decision that was in the election officials, it now becomes in the court. All of the limitations on the remand process that existed during the protest phase, where the standards should be lower because it’s earlier in the process are thrown out the window. The time tables are thrown out the window. The process that exists are there and one has to — .

QUESTION: What’s the timetable in 168?

MR. OLSON: There is no timetable.

QUESTION: That’s right. There is no timetable there. So that seems to undercut your timetable argument once you get into the contest phase from the protest phase.

MR. OLSON: But that’s only if you untether 168 entirely from the statute and the steam by which the protest phase takes place over a period of seven to 10 days in the context of this election, and the contest phase occurs over the next four weeks.

QUESTION: It may well be and I’ll grant you for the sake of argument that there would be a sound interpretive theory that in effect would coordinate these two statutes, 166 and 168, in a way that the Florida Supreme Court has not done. But that’s a question of Florida Supreme Court statutory construction and unless you can convince us, it seems to me, that in construing 168, which is what we are concerned with now, and its coordination or lack of coordination with 166, the Florida Supreme Court has simply passed the bounds of legitimate statutory construction, then I don’t see how we can find an Article II violation here.

MR. OLSON: Well, I am hoping to convince you that they passed far beyond the normal limits of statutory construction. The changing of the meaning — .

QUESTION: You have convinced us certainly that there is a disagreement about how it should be construed, and that disagreement is articulated by the dissents in the most recent case. But I don’t quite see where you cross the line into saying that this has simply become a nonjudicial act. It may or may not be good statutory construction, but I don’t see it as a nonjudicial act.

MR. OLSON: It is, it is, we submit an utter revision of the timetables, the allocation.

QUESTION: But Mr. Olson, we’re back to the — there is no timetable in 166.

MR. OLSON: That’s correct.

QUESTION: And what your argument boils down to, I think, is that they have insufficiently considered 168, I’m sorry, that they have insufficiently considered 166 in construing 168, and you may be right, but you have no textual hook in 168 to say untethered timetables imply in effect a nonjudicial act.

MR. OLSON: We are not just saying timetables. We are saying that it has wrenched it completely out of the election code which the legislature very carefully crafted to fit together and work in an interrelated fashion. It isn’t just the timetable. The fact that there are timetables which are very important in a presidential election, we are today smack up against a very important deadline, and we are in the process where — .

QUESTION: Yes, you are. But that is a deadline set by a safe harbor statute for the guidance of Congress and it’s a deadline that has nothing to do with any text in 168.

MR. OLSON: Well, I believe that the Supreme Court of Florida certainly thought that it was construing, it certainly said so this time, that it was construing the applicability of Section 5 and it was expressing the hope that what it was doing was not risking or jeopardizing the conclusive effect — .

QUESTION: And it took that into consideration in fashioning its orders under subsection 8.

MR. OLSON: And we submit that it incorrectly interpreted and construed federal law in doing that because what they have inevitably done is provide a process whereby it is virtually impossible, if not completely impossible, and I think it is completely impossible, to have these issues resolved and the controversies resolved in time for that federal statutory deadline. Furthermore, it is quite clear, we submit, that the process has changed.

QUESTION: Well, if your concern was with impossibility, why didn’t you let the process run instead of asking for a stay?

MR. OLSON: Well, because we said — .

QUESTION: We’d find out.

MR. OLSON: Because we argued, and I believe that there is a very firm basis for saying that that process already had violated Article II of the Constitution. It was also already throwing in jeopardy compliance with Section 5 of Title 3 because the laws had been changed in a number of different respects and we have recited them. The timetables are important.

QUESTION: Oh, and I thought your point was that the process is being conducted in violation of the Equal Protection Clause and it is standardless.

MR. OLSON: And the Due Process Clause, and what we know is now the new system that was set forth and articulated last — .

QUESTION: In respect to that —.

MR. OLSON: Pardon me?

QUESTION: In respect to that, if it were to start up again, if it were totally hypothetically, and you were counting just undercounts, I understand that you think that the system that’s set up now is very unfair because it’s different standards in different places. What in your opinion would be a fair standard, on the assumption that it starts up missing the 12th deadline but before the 18th?

MR. OLSON: Well, one fair standard, and I don’t know the complete answer to that, is that there would be a uniform way of evaluating the manner in which — there was Palm Beach, for example —.

QUESTION: All right, a uniform way of evaluating. What would the standard be, because this is one of your main arguments —.

MR. OLSON: Well, the standard — .

QUESTION: You say the intent of the voter is not good enough. You want substandards.

MR. OLSON: We want — .

QUESTION: And what in your opinion would be the most commonly used in the 33 states or whatever, or in your opinion, the fairest uniform substandard?

MR. OLSON: Well, certainly at minimum, Justice Breyer, the penetration of the ballot card would be required. Now, that’s why I mentioned the Palm Beach standard that was articulated in writing and provided along with the ballot instructions to people voting, that the chad ought to be punctured.

QUESTION: You’re looking at, then, basically Indiana. Is Indiana, in your opinion or pre — or 1990 Palm Beach, are either of those fair, or what else?

MR. OLSON: It’s certainly a starting point, and the —.

QUESTION: Well, would the starting point be what the Secretary of State decreed for uniformity? Is that the starting point —.

MR. OLSON: That is correct.

QUESTION: — Under the Florida legislative scheme?

MR. OLSON: I would agree with that, Justice O’Connor.

QUESTION: And what standard did the Secretary of State set?

MR. OLSON: She had not set one, and that’s one of the objections that we had with respect to the process that — the selective process that existed and that we discussed in conjunction with the December — the November 21st position. Not only was there not a standard, but there was a change two or three times during the course of this process with respect to the standard that I was just discussing.

QUESTION: I understand that she has the expertise and let’s assume that under Florida state law she’s the one with the presumptive competence to set the standard. Is there a place in the Florida scheme for her to do this in the contest period?

MR. OLSON: I don’t think there is. There is no limitation on when she can answer advisory opinions.

QUESTION: Even in the contest period?

MR. OLSON: I don’t — I think that that’s correct. Now, whether or not if there was a change as a result of that, of the process, whether there would be problems with respect to section 5 I haven’t thought about , but —.

QUESTION: No, if there’s —.

QUESTION: If this were remanded —.

QUESTION: Go ahead.

QUESTION: I’m sorry.

QUESTION: If this were remanded to the Leon County Circuit Court and the judge of that court addressed the Secretary of State, who arguably either is or could be made a party, and said please tell us what the standard ought to be, we will be advised by your opinion, that would be feasible, wouldn’t it?

MR. OLSON: I think it would be feasible. Now, counsel for the Secretary of State will be up in a moment, immediately after me. As I understand, however, the election code, she would have the power to respond to that inquiry. In fact, under the very first, as I mentioned, the very first section of the election code, sub 1, she is not only the chief election officer, but has responsibility —.

QUESTION: But I would still like to get your view as to what would be the fair standard.

MR. OLSON: Well, certainly one that would — I don’t — I haven’t crafted it entirely out. That is the job for a legislature.

QUESTION: I would still like to get your opinion insofar as you could give it.

MR. OLSON: I think part of that standard is it would have to be applied uniformly. It would have to be — I would think a reasonable standard is, would have to be at minimum a penetration of the chad in the ballot, because indentations are no standards at all. There are other procedural standards in the —.

QUESTION: Mr. Olson, was the Palm Beach standard that you referred in your brief applied statewide and uniformly? You refer to the Palm Beach standard having changed. Was the Palm Beach standard ever applied on a statewide basis?

MR. OLSON: I believe it was not, Justice Stevens.

QUESTION: And can we possibly infer from the failure of the Secretary of State to promulgate a statewide standard that she might have inferred that the intent of the voter is an adequate standard?

MR. OLSON: No, I don’t think it’s a fair inference either way. Remember in response to the question from I think it was Justice Scalia the last time we were here, this is the first time we’ve had a manual recount for anything other than arithmetic tabulation error. This is something that is unprecedented in the State of Florida. That’s another change that took place.

QUESTION: Mr. Olson, you have said the intent of the voters simply won’t do, it’s too vague, it’s too subjective, but at least, at least those words, intent of the voter, come from the legislature. Wouldn’t anything added to that be — wouldn’t you be objecting much more fiercely than you are now if something were added to the words that the all powerful legislature put in the statute?

MR. OLSON: Well, I think we have to distinguish between whether we’re talking about a prospective uniform standard as opposed to something that changes the process in the middle of the counting and evaluating of disputes. But it certainly would —.

QUESTION: But if we’re talking about the contest period, and the statute, as Justice Souter pointed out, speaks with amazing breadth. It says that “the circuit judge” — this is the text — “shall fashion any order he or she deems necessary to prevent or correct any wrong and to provide any relief appropriate under the circumstances”. I couldn’t imagine a greater conferral of authority by the legislature to the circuit judge.

MR. OLSON: But we submit in the context of the entire election code itself. Now, the intent of the voter standard, the one that’s been cited and relied upon by our opponents most, is a provision that’s contained in the provision of the election code that deals with damaged or spoiled ballots.

QUESTION: Okay, but we have — there’s no question that the closest we can come now under Florida law is an intent of the voter standard. Is it your position that if any official, judicial or executive, at this point were to purport to lay down a statewide standard which went to a lower level, a more specific level than intent of the voter, and said, for example, count dimpled chads or don’t count dimpled chads. In your judgment, would that be a violation of Article II?

MR. OLSON: I don’t think it would be a violation of Article II provided that — I mean, if the first part of your question—.

QUESTION: All right, so —.

MR. OLSON: If we went from the standard that existed before, the dimpled chads, that that had not been a standard anywhere in Florida, if that change was made, we would strongly urge that that would be a violation of Article II.

QUESTION: Mr. Olson —.

MR. OLSON: It would be a complete change.

QUESTION: It is also part of your case, is it not, that insofar as that language just quoted is concerned, the power of the circuit judge to prevent or correct any alleged wrong, it’s part of your submission, I think, that there is no wrong when a machine does not count those ballots that it’s not supposed to count?

MR. OLSON: That’s absolutely correct, Justice Scalia.

QUESTION: The voters are instructed to detach the chads entirely, and the machine, as predicted, does not count those chads where those instructions are not followed, there isn’t any wrong.

MR. OLSON: That’s correct, they’ve been euphemistically — this has been euphemistically referred to as legal votes that haven’t been counted. These are ballots where the system created by Florida, both with respect to the initial tabulation and the preferred system for the recount, the automatic recount in close elections, is to submit those ballots to the same mechanical objective scrutiny that the initial count was done, and those were not counted either because there were votes for more than one candidate, which would make them overvotes, I guess they’re calling them, or that they read as no vote, which many people do, many people do not vote in the presidential election even though they’re voting for other offices.

QUESTION: But as to the undervotes, and as to the undervotes in which there is arguably some expression of intent on the ballot that the machine didn’t pick up, the majority of the Florida Supreme Court says you’re wrong. They interpreted the statute otherwise. Are you saying here that their interpretation was so far unreasonable in defining legal vote as not to be a judicial act entitled, in effect, to the presumption of reasonable interpretation under Article II?

MR. OLSON: Yes, that is our contention, and that has to be done. That contention is based upon everything else in the Florida statute, including the contest provisions. The manual recount provisions —.

QUESTION: What is it in the contest provision that supports the theory that that was a rogue, illegal judicial act?

MR. OLSON: Because there is no reference to them, even though that process is referred to —.

QUESTION: There’s no definition. There’s no definition. Doesn’t the court have to come up with a definition of legal votes?

MR. OLSON: In the context, in the context of the statute as a whole, manual recounts are treated quite extensively as a last resort for tabulation error at the discretion of canvassing officials.

QUESTION: At the protest stage?

MR. OLSON: That’s correct.

QUESTION: Mr Olson —.

MR. OLSON: We submit — and I would like to reserve the balance of my time.

QUESTION: Mr. Olson, is it critical to your position that the Florida Supreme Court erred in its resolution of the shall/may controversy in its first opinion?

MR. OLSON: I’m sorry, I missed —.

QUESTION: Is it critical to your position, because you’re tying the two cases together, that the Florida Supreme Court made that kind of error in its resolution of the conflict between shall and may in the disparate statute?

MR. OLSON: I don’t think it’s critical. What we’re saying is that the court expanded upon its previous decision that was vacated in this case, it used the time period that it opened up to do this manual recount to then build upon in the December 8th opinion.

QUESTION: Very well,

MR. OLSON. Mr. Klock, we’ll hear from you.