Mr. Klock, we'll hear from you.

KLOCK: Mr. Chief Justice, and may it please the court, our argument is simply addressed to issues having to do with Florida law and the point being raised by the secretary is this: that the law in the state of Florida on November 7 was changed by the Supreme Court of Florida's decision on November 21.

The secretary is not contesting the right of the Florida Supreme Court to change the law of Florida; she is simply pointing out that the law did change.

KENNEDY: Does the secretary maintain that, in some instances, she has a discretion that a court does not? Or can a court do whatever she might do under Florida law?

KLOCK: Under Florida law, she has certain discretion that I think a court probably does not have in the protest period, Justice Kennedy, and that would be that she had the discretion to decide whether or not returns could be permitted after that seventh day.

And, indeed, that's based on two things that we have in the record. One is an opinion that was issued by the Division of Elections that talks about the circumstances in which the secretary would exercise discretion. And the second is the letter that the secretary sent to the three or four canvassing boards that requested an extension of time after the 14th deadline had passed.

She sent the letter out. She said, "Please indicate to me whether or not you intend to file returns after the deadline, and, if you do, what the reasons are." She collected a set of criteria; she applied the criteria; and then sent a letter back.

And what she did, Justice Kennedy, in the case of the division's letter, the opinion which of course is binding under Florida law on elections officials who receive them -- the division had said that there were certain circumstances such as acts of God, hurricanes and that kind of thing where the discretion would be exercised.

When she came up with her additional reasons for considering whether or not she would exercise her discretion, she indicated a number of them, which were also contained within the record. It's at the joint appendix of 21.

KLOCK: She indicated where there was a result of voter fraud, where there's a substantial...

STEVENS: She said she would exercise her discretion. Did she say she would have to exercise her discretion in those conditions?

KLOCK: I think she would have to exercise her discretion, sir.

STEVENS: The court could compel her to?

KLOCK: Yes, sir.

STEVENS: Do you think that was clear before the opinion of the Supreme Court in this case?

KLOCK: Yes, sir.

STEVENS: Let me just ask one general question for you to comment on whether it's a change in the law. To what extent, in your view, did the Supreme Court of Florida consider itself bound by either prior precedent or the constitution of the state which preexisted?

KLOCK: In terms of handing down this decision?

STEVENS: In terms of the particular result reached in this case.

KLOCK: I believe the Supreme Court of Florida was looking at its law in terms of articulating the law that it wanted to have then and on a going-forward basis. I mean, what it did -- and obviously, since it's the -- it's the chief court of the state; it has the right to do whatever it wishes to do with respect to Florida law, only bound by what the separation of powers...

STEVENS: Do you think they thought their decision was dictated either by prior precedent or by the constitution of the state?

KLOCK: Your Honor, I don't know whether they thought that or not, but that's not what the opinion says. As a matter of fact, the opinion is pretty clear. They start out by talking about statutory construction, and they hinge everything on the use of the word "interpret," and then they sort of turn the word "interpret" to a use that it's not intended to be.

But then, when they get to the point of designing the rule of law they're going to go forward on, they don't talk about interpreting the statute. They then go and base it on principles of equity in the Florida constitution.

KLOCK: And, indeed, what they end up with, Your Honor, is this statement, with respect to the question that the secretary is left with, and that is this -- and it's on 35 of the joint appendix: "We conclude that, consistent with Florida's election scheme, the secretary may reject a board's" -- that's the canvassing board's -- "amended returns, only if the returns are submitted so late that their inclusion will preclude a candidate from contesting certification or preclude Florida voters from participating fully in the federal electoral process."

Your Honor, there's no way...

STEVENS: No, I understand. Your position is that was entirely new.

KLOCK: Yes, sir.

STEVENS: And I'm just wondering, therefore, your submission is that it was not dictated by the Constitution or by prior precedent?

KLOCK: No, Your Honor...

REHNQUIST: Well, I thought you said a moment ago that the court -- the Florida court did rely on their Florida constitution. There's a section of your opinion that's devoted to that.

KLOCK: This -- Your Honor, in devising the remedy, they refer to the Florida constitution, but the issue that we're here on, as I understand it, sir, is whether or not the law changed. There's no question that they have a right to do what they did. The only difference...

REHNQUIST: Perhaps another statement of the issue is to what extent did the Florida Supreme Court, in construing this statute, rely on more general provisions of the Florida constitution, which they cited in their opinion.

KLOCK: I think they did rely in creating the remedy on the Florida Constitution. I believe they created a right that had not previously been seen there, which they have a right to do.

But, Mr. Chief Justice, the issue again is whether or not the law that they articulated on November 21 is different than the law that existed on November 7, and how the secretary of state, in exercising her discretion, was to divine the standard that would be established on November 21.

SCALIA: Your position is, so long as it's different, it violates Section 5, and therefore we have a right to step in.

KLOCK: Well, Justice Scalia, we have not addressed the federal issues, because, I mean, we're in a situation where you have...

SCALIA: Well, this is a federal court...

(LAUGHTER)

KLOCK: I understand that. I apologize.

But we have the secretary of state here, we have the attorney general here, and the legislature has filed by amicus, and of course the state has not appeared. So it's a little unusual. We haven't addressed those issues. But to answer your question, yes, sir.

BREYER: Can you tell me, when this petition was filed here, the secretary had not certified anybody the winner.

KLOCK: Well...

BREYER: And now the secretary has certified a winner. And therefore, I guess, whether we win -- whether your side, the side your supporting, wins or loses, it doesn't change that. And I guess that's moot.

KLOCK: Well...

BREYER: But my question is, is there any respect in which this really makes a difference this case, how -- I'm thinking, if it does make a difference, numbers of vote, is that kind of thing right for us to decide now? How could it make a difference? What's the consequence of our going one way or the other now, in this case?

KLOCK: Your Honor, it makes an enormous difference. Because the relief that has been requested would be for the court to determine that the law in effect at the time of the election was that manual recounting of ballots would not be permitted to address voter error, which I think has been extensively...

BREYER: But we don't -- suppose they won, and the relief was -- suppose your side won, and the relief was, fine, it should have been certified on November 14 or 18 instead of November 26. Now, what's the consequence of that, just that? Forgetting what the reasoning is, is there a consequence that flows from that that is real, adverse, you know, significant, concrete, that we can predict now as opposed to speculating?

KLOCK: The only immediate result would be that you would have a margin that was instead of being 536 votes would be 900-and-some-odd votes, and it would only be added to as a result of whatever was added by the overseas ballots.

BREYER: And this case has said -- we've said a claim is not right if it rests upon contingent future events that may not occur as anticipated or, indeed, may not occur at all. And so what I wonder is, is this in this realm of speculation as to whether or not it will or will not make a difference to the outcome of the election?

KLOCK: It will make a difference to the outcome of the election because there is an ongoing contest which is interrelated and is involved in the Supreme Court's opinion.

KLOCK: And, of course, because the Supreme Court of Florida, in coming up with the remedy that they came up with, completely changed the period of time from a relatively short period of time, seven days for a protest, and a much longer period for a contest, we now have a situation where there's 19 days for the protest and 16 days for the contest.

SCALIA: Well, it's too late to lengthen the time for the contest. I mean, to the extent that they've shortened the contest time, you know, that's water over the dam by now, isn't it?

KLOCK: Yes, Justice Scalia.

But the issue, here -- I'm sorry.

SCALIA: Is it not the case that if the votes are, as they have been shown to be, under the Florida Supreme Court's opinion, the race is much closer, and, therefore, some counties under Florida law would conduct recounts that otherwise would not conduct recounts. Doesn't whether a recount is conducted depend upon how likely it is that the recount is going to change the outcome?

KLOCK: Your Honor, if the law is returned to the point it was on November 7, there is no right to a manual recount to correct voter error. And that will end the litigation that currently exists in the state of Florida, which were the opinions of the secretary of state's Division of Elections that were issued and also the state of the law as it existed at that point and time.

The record shows very clearly there is no dispute that there were any problems with voting machines or any of the tabulation problems with voting machines. It was simply when they went through the process of what is, Justice Ginsburg, a discretionary right to a manual recount, not a mandatory one.

When they went into that and did the test, each of those canvassing boards did not find any problem with a mechanical problem. It was simply a problem in terms of voter error. The secretary took the -- never mind.

REHNQUIST: Thank you, Mr. Klock.

Mr. Hancock, we'll hear from you.

HANCOCK: Mr. Chief Justice, and may it please the court. In accordance with Article II of the United States Constitution, the Florida legislature has directed the manner of selecting presidential electors in Florida. That manner is pursuant to a popular vote that's implemented pursuant to the general election laws of the state of Florida.

O'CONNOR: I guess, Article II permits the legislature, in general, to make the choice it could itself select the electors.

HANCOCK: Yes, Justice O'Connor, we agree with that.

In implementing the election law, each branch of the Florida government plays a role. For example, the executive branch of our government has not found itself bound by the technical -- hypertechnical requirements of the election law. An example of that is that the executive branch has implemented a rule -- not a law, but a rule -- that allows absentee ballots from overseas military voters that we receive up to 10 days after the close of the polls.

Under the law of the state of Florida, all absentee ballots have to be received by the time the polls close on Election Day.

KENNEDY: But in your brief you conclude that the Florida Supreme Court -- I think it's page 12 -- like any state court, exercises inherent equitable powers to remedy a threat to fundamental constitutional rights. And it rewrote the certification deadlines according to that power, did it not?

HANCOCK: The only -- yes, Justice Kennedy. The only equitable power exercised by the court was setting the deadline.

KENNEDY: Isn't that such an amorphous, general, abstract standard that it can't possibly be said to be a law that was enacted and in place at the time of the election?

HANCOCK: Now, the laws were enacted well before the election. What happened was that, in the court...

KENNEDY: Of course the Constitution is there before the election, the due process clause was before the election, but what we're talking about is having laws with sufficient specificity and stability that people can rely on them in advance and not have them changed after the fact.

And your brief makes it very clear that they exercised their inequitable powers to remedy a threat to fundamental constitutional rights and change the deadline accordingly. It seems to me that's no -- it's an enviable standard, something we probably all agree with in the end. But so far as the requisite specificity dissatisfied, 3 U.S.C., Section 5, I just don't see that it's there.

HANCOCK: The court had to do something, Justice Kennedy. It was faced with conflicts in Florida law. They had conflicting opinions from the Florida attorney general as to the meaning of the law and the secretary of state as to the meaning of the law. As a result of those...

KENNEDY: Maybe it had to do something, but did it comply with 3 U.S.C., Section 5?

HANCOCK: I submit, Justice Kennedy, that 3 U.S.C., Section 5, doesn't require the state to do anything. It merely says...

KENNEDY: But did it comply with that part of 3 U.S.C., Section 5, that requires that laws be enacted and in place prior to the election in order to get the safe harbor?

HANCOCK: Yes, it did. The laws were in place before the election, and those laws granted to the judiciary the...

O'CONNOR: Well, but certainly the date changed. That is a dramatic change, the date for certification.

HANCOCK: Yes.

O'CONNOR: Right? And it was done by the court?

HANCOCK: Yes, it was done...

O'CONNOR: And the legislature had very clearly said, you know, seven days after, that's the date. And it just does look like a very dramatic change made by the Florida court. And I'm wondering if that is consistent, in fact, with the notion expressed at least in Section 5, so that the result would be if it did go to Congress, it would be a change?

HANCOCK: I agree that the date was implemented pursuant to the court's equitable powers. Other than that, it was a routine exercise in statutory construction. The court was faced with a situation, first of all, where because of conflicting advice, the counties had started and then stopped conducting manual recounts, because of advice from the secretary of the state, which the Supreme Court ultimately concluded to be erroneous.

SCALIA: And that advice was -- and this was really the beginning of all of the problems -- her advice was that the provision providing for recounts, manual recounts, not requiring them, but given as one of the options, only came into play when there was some defect in the machinery.

SCALIA: And it was not available for voter error; that is, for voters who didn't punch the cards the way they were supposed to. And your office came out with the opposite conclusion.

The secretary's brief contends that that had always been the rule in Florida. Is that the case? Do you know of any other elections in Florida in which recounts were conducted, manual recounts, because of an allegation that some voters did not punch the cards the way they should have, through their fault? No problem with the machinery, it's working fine, but, you know, there were, what, pregnant chads, hanging chads, so forth.

HANCOCK: No, Justice.

SCALIA: Did it ever happen before...

HANCOCK: I'm not aware of it ever happening before. But I can say that the Supreme Court of Florida for 100 years has put a duty on election officials to discern the intent of the voter. And while the secretary of the state refers to it as voter error, when the ballot is punched, under the laws of the state of Florida as interpreted by the Supreme Court, that voter has cast a ballot, even if the chad did not...

KENNEDY: Excuse me. Is it your position that any interpretation the Supreme Court of Florida makes to implement the will of the people is never a new law?

HANCOCK: Yes, I can't say ever, but I'd say on the case before the court, all that was before the court was ordinary statutory construction which must be -- the result of it, whether this court would agree with it or disagree with it, must be respected by this court. That's the very foundation of federalism.

GINSBURG: Mr. Hancock, are you relying on the Florida Supreme Court's statement, at least twice in its opinion -- now I looked at the page to which Mr. Klock referred, page 37-A -- it says for the second time that section -- the section governing manual recounts appears to conflict with the sections that set a deadline, and it's reconciling that conflict.

HANCOCK: Yes, that's...

GINSBURG: Whether it was wrong or right, that's what it said its mission was, and that's what it did.

HANCOCK: Yes. Both in words and in operation, the statutes could not work together because of the time for requesting manual recount, the extent of the job of manual recounting...

SCALIA: What is the section that requires manual recounts?

HANCOCK: It's 102 -- well, 102.166 authorizes manual recounts.

SCALIA: That's different from requiring.

HANCOCK: Yes. But once it starts, Justice Scalia, once it's authorized, if the initial sample recount shows an error that might affect the outcome of the election...

SCALIA: Then...

HANCOCK: ... the board is then required to, among other things, conduct a full manual recount.

SCALIA: No, it's required to do one of three things, one of which could be a manual recount.

HANCOCK: Yes.

SCALIA: It could decide to do one of the other two instead.

HANCOCK: Yes. The problem faced by the counties...

SCALIA: So there is -- I mean, the court says that there's a requirement of a manual recount, but I don't see anything in the text of the statute that requires a manual recount.

HANCOCK: The statute requires that the election officials attempt to discern the cause of the error. Here the cause of the error was that, in these counties, was that the machines were not able to read ballots.

HANCOCK: Ten thousand ballots in Palm Beach County, the machine did not read as including a vote for president. That was the issue, so that the solution to that was not the machines, even when they're operating properly, would not read these ballots. So what was left to the county canvassing board then was to do the full manual recount, and the language of that statute, again, says they "shall" do a full manual recount in those circumstances.

O'CONNOR: Well, it says that the board "may" authorize the manual recount. It doesn't require it. But if it does authorize it, then it tells them how to do it and says they shall appoint as many counting teams as necessary, presumably as necessary to do it within the time limit.

HANCOCK: Yes, Justice O'Connor, but, again, under the law these requests can be made up to the time of canvassing, that means up to six or seven days. And also, the number of ballots at issue here are between 650,000 in Palm Beach County, and also 900,000 -- up to 900,000 in Broward County.

SCALIA: Well, if that is a statutory problem, the court's resolution didn't really solve it, did it? Because even with her extended time period, the same statutory problem exists. There still isn't enough time, under the extended deadlines, for some of these counties that have an enormous number of votes to conduct a manual recount; isn't that right?

HANCOCK: Well, let me...

SCALIA: I mean, to resolve a supposed conflict in the statute in a manner that leaves in place the same problem that existed before seems to me not a real resolution of the statutory problem.

HANCOCK: Well, the Supreme Court tried to blend it all together to make it work, Justice Scalia. And, again, it came up with a solution.

HANCOCK: The secretary of state's argument here is based on -- the secretary of state herself recognized that she had the discretion under Florida law to accept returns filed outside of that seven-day deadline. A breakdown of the machines, in her view, would justify late returns. A failure of the machines to read ballots would not justify late-filed returns.

The Supreme Court said that the legal standard she was using was wrong. We submit that that decision of the Supreme Court is the law in the state of Florida.

REHNQUIST: I'm going to extend your time two minutes, Mr. Hancock, because you haven't had a chance to say a lot yet.

(LAUGHTER)

HANCOCK: Well, I will -- I don't need the extension time, Your Honor. If there's no other questions, I will stop. Thank you.

REHNQUIST: Thank you.

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