SCALIA: Professor Tribe, can I ask you why you think the Florida legislature delegated to the Florida Supreme Court the authority to interpose the Florida constitution? I mean, maybe your experience with the legislative branch is different from mine, but in my experience they are resigned to the intervention of the courts...

(LAUGHTER)

... but have certainly never invited it.

TRIBE: Well, I'd have to say my experience parallels that.

SCALIA: But what makes you think the Florida legislature affirmatively invited the Florida Supreme Court?

TRIBE: The odd thing is that the system in Florida involves their own re-promulgation of the constitution.

TRIBE: And their scheme, with respect to the resolution, of disputes over elections draws a sharp distinction between elections to their own House and Senate, which they won't trust the courts with as far as they can throw them. Those are to be resolved exclusively in the House and Senate, and all others are to be resolved in the courts under a standard that they understandably...

SCALIA: That they are resigned to, but they need not be resigned to the Florida Supreme Court interposing itself with respect to federal elections. They need not be, because the Florida constitution cannot affect it. And I just find it implausible that they really invited the Florida Supreme Court to interpose the Florida constitution between what they enacted by statute and the ultimate result of the election.

TRIBE: Well, I suppose if they were at all farsighted, if they looked at their own work and saw how self-contradictory it was, they might say we would want someone with the authority to reconcile these provisions to do so in the light not only of the literal language, but of the fact that they're dealing with something very important, the franchise.

The disenfranchising people, which is what this all about, disenfranchising people isn't very nice.

SOUTER: But wouldn't you...

TRIBE: They violate the federal as well as the state constitution.

SOUTER: But wouldn't Justice Scalia's suggestion be a stronger suggestion if they had dealt by this statute only with federal elections or only with the presidential election as opposed to dealing with both state and federal in the same statute?

TRIBE: Well, it's not uncommon, given the convenience of having similar regulations apply on Election Day, not to bifurcate. Oregon v. Mitchell, after all, confronted the nation with a problem...

SOUTER: Right, but when they don't bifurcate, it's reasonable to suppose that they expect their statute to be construed, number one, as one statute, not as having different dates for state and federal; and number two, to be construed, so far as the state concern arises, in accordance with the state Constitution. And if that is so, then the result is, they would expect a state constitutional concern to inform their interpretation of a statute which ultimately governs federal as well as state.

TRIBE: And they would recognize that when the federal election involves the presidency of the United States, with the special problems of the Elector College deadline, that they might emerge with rather different deadlines and to some extent a different approach for the two elections.

SCALIA: But there are already different deadlines for federal electors -- aren't there? -- because of the federal statute concerning overseas ballots?

TRIBE: Yes, that's entirely true.

SCALIA: So, I mean, that's going to be different anyway.

TRIBE: And there's an...

SCALIA: But that's different as a result of federal law, isn't it?

TRIBE: Well, there is a consent decree arising out of federal law. There was...

SCALIA: But it wasn't the legislature's choice. It was Congress' choice that required that.

TRIBE: That's right. In 1986 there was a congressional statute that already created that difference.

GINSBURG: Mr. Tribe, before you finish, I would like to know whether you are conceding, because some of the things you said sound like maybe you are, that the Florida legislature, under Article II, Section 1, could say we don't want any judicial review of anything about the manner in which we say electors should be appointed. Does the Florida legislature have the authority to cut out judicial review?

TRIBE: No, no, I certainly don't think so. They cut out judicial review then even this may not be entirely consistent with the Florida Constitution. They cut out judicial review for the election of their own members in the House and Senate. I certainly don't think that it would have the authority to expel the federal judiciary from the election of senators or...

GINSBURG: I mean the state judiciary. When it says, "Each state shall appoint electors in such manner as the legislature thereof may direct," may the legislature direct as to the Florida Supreme Court, and Florida Supreme Court, we don't want you to review whatever we do?

TRIBE: I'm not actually clear about this, Justice Ginsburg. I've thought about it a lot. The general principle is that the Constitution takes the state government and its arrangement as it finds it, and that when the legislature is identified, that really does not mean the legislature has some specialized capacity, as with Article V.

TRIBE: Now, if that's the case, and if it's therefore assumed that the legislature is surrounded with both executive and judicial authority, then a decision by the legislature to completely exclude the judiciary from any possible role -- the state judiciary -- might be inconsistent with the underlying meaning of Article II itself.

GINSBURG: Well, could the state legislature at least now say, "In light of all this confusion, we enact a law today, saying this is the way electors will be selected"? Couldn't -- is that open to the legislature now?

TRIBE: I'm not sure. That's very much like my inability to answer because I honestly have not reached a conclusion that it's not presented by this case. I don't know whether the legislature could do the further thing, that's naming electors. And if it...

REHNQUIST: Thank you, Mr. Tribe.

TRIBE: Thank you, Chief Justice.

REHNQUIST: Mr. Olson, you have four minutes remaining.

OLSON: Thank you, Mr. Chief Justice.

May it please the court, it seems to me that it's very difficult to read the Florida Supreme Court decision as saying anything else other than the Florida Constitution, in their view -- in that court's view, is trumping everything else.

OLSON: The second paragraph of the conclusion says, "Because the right to vote is the preeminent right in the declaration of rights of the Florida Constitution" and so forth. This opinion is full of language...

BREYER: Wouldn't they -- I suppose they'd referred to the Declaration of the Rights of Man, 1789, the French Revolution. I mean the right to vote is a value in the Constitution. Are they actually saying -- I didn't see it.

OLSON: They're saying...

BREYER: The statute means one thing, but the statute's unconstitutional because the constitution of Florida says the opposite? I didn't see that.

OLSON: I think that the only reasonable, fair reading of the decision is that the Florida Supreme Court felt that -- and it says it over and over again -- that we are going to attempt to discern the will of the people, the will of the electorate and discern and enhance in whatever way we possible can the right to vote.

And because of that, these provisions of the statute, which are very much quintessentially legislative, the timetables that are involved in this statute, particularly the November 14 deadline, is a part of a composite package. There's one week for a protest and certain recounts to the extent that they can be done, and there are four weeks for contests.

When the Florida Supreme Court truncated -- when the Florida Supreme Court expanded the protest period from seven days to 19 days, it necessarily limited the contest period to a shorter period of time. It changed the discretion. It allowed certain things to occur that couldn't have occurred. And it justifies all of those things on the grounds that the Florida Supreme Court -- the Florida Constitution trumps those legislative concerns.

OLSON: And that's why it said we are not going to be dissuaded by hypertechnical statutory considerations. So the court was doing what this court said in the McPherson v. Blacker case that it cannot do, is allow itself to insert itself or the Florida constitution above what is required by Article II, Section 1 of the Constitution.

It also seems to me quite evident, in response to what Justice Kennedy was asking earlier, that there was concern about the federal statutory provision. The language to which I think Justice Kennedy was referring is on page 32-A of the appendix to the petition from the court's decision. And there's a footnote there that does refer to reference to 3 U.S.C. 1 through 10, which of course includes Section 5, and it says so in conjunction with the statement that the exercise of the discretion by the secretary of state could not be done in such a way that would preclude Florida voters from participating fully in the federal electoral process.

The court was assuming, it seems to me, that it did not -- was not conflicted, the decision it was rendering was not going to cause a conflict with the federal statutory scheme, and it was, we submit, in error in that regard.

So to sum up, with respect to this, the Florida Supreme Court radically changed the legislative scheme because it thought it could do so under the Florida constitution.

OLSON: By doing so, it acted inconsistently with Article II of the Constitution and inconsistently with Section 5 of Title 3 and it has brought about precisely the circumstances that Section 5 -- Section 3, Title 3, was designed to avoid.

GINSBURG: If I had looked in the conclusion, the paragraph on page 37-A, with a summarized -- what they said -- there's nothing there about the Florida constitution, it's only about the Florida election code. They say they must construe the Florida election code as a whole and they point out the provisions in conflict. There's not one word in that paragraph that says anything about the Florida.

OLSON: The very second paragraph refers to the Florida constitution and the rights to vote, page 36-A of the appendix to the petition.

REHNQUIST: Thank you, Mr. Olson.

The case is submitted.

BOSLEY: The honorable court is now adjourned until Monday next at 10:00.

END


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