A reminder for our viewers. SCALIA: You'd tell them to count every vote. It would be unfortunate to assume that the legislature devolved its authority on its judiciary sub silentio. SCALIA: I understand. OLSON: I think it would be feasible. So I think that they may still go ahead and do it in an abundance of caution. And unless you can convince us, it seems to me, that in construing 168, which is what we're concerned with now. They didn't want this question, they did their very best last time they had it in front of them to find a unanimous opinion that they could all agree on, to avoid addressing these questions. BREYER: No, we're asking, I think, 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've looked into this... BREYER: ... 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? 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? -- and I think it is completely impossible -- to have these issues resolved and the controversies resolved in time for that federal statutory deadline. Each side is going to make its legal claim, the Bush side saying that the federal Constitution was violated by the Florida State Supreme Court as well as federal law. Audio Transcription for Oral Argument - December 11, 2000 in Bush v. Gore Theodore B. Olson: 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 socalled dimpled ballot standard, indentations on the ballot. As you know, he was the one that made the argument before the Florida State Supreme Court that won the decision to get the manual recounts going down in Florida. Hughes • No matter who wins the presidency, either man is going to have a challenge before him to get the nation behind him? You would never know that this was a particularly important or unusual day by looking at Governor Bush's schedule. It would have to be, I would think, a reasonable standard would have to be, at minimum, a penetration of the chad in the ballot, because indentations are no standards at all. 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. ON WRIT OF CERTIORARI TO THE FLORIDA SUPREME COURT [December 12, 2000] Justice Ginsburg, with whom Justice Stevens joins, and with whom Justice Souter and Justice Breyer join as to Part I, dissenting. One argument you certainly want to make to her is look, when the state courts give an interpretation of state law, the normal practice is for federal courts to defer to that and not to reinterpret the state law questions. To talk more about the burden on the U.S. Supreme Court to come up with a settlement for all this, joining us to talk about the implications is Robert Schapiro, associate professor of Law at Emory University here in Atlanta. Thanks to our panelists, thanks to our viewers for those e-mails. Audio Transcription for Oral Argument - December 11, 2000 in Bush v. Gore Theodore B. Olson: Because there is no reference to them, even though that process is referred to.... David H. Souter: There's no definition. KLOCK: 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 and a wish by the legislature to preserve the safe harbor. SESNO: Bob, we are back once again in front of that Supreme Court. KENNEDY: All right. Although even in Texas, there is a catch-all that says, "Anything else that clearly specifies the intent of the voter. KAGAN: We had one former Supreme Court clerk with us this weekend who said if you want to win this one or the best bet for the Gore is to write a love sonnet to Sandra Day O'Connor. JUSTICE WILLIAM REHNQUIST: We'll hear argument now in number 00949, George W. Bush and Richard Cheney v. Albert Gore, et al. Do you think the Florida court meant to acknowledge -- it seems to me since it's cited generally, they must have acknowledged both of those provisions. And should we allow that to be done in selected counties that are heavily Democratic and selected precincts that are heavily Democratic, etcetera. The timetables are important. But no one claims that these ballots have not previously been tabulated; they were initially read by voting machines at the time of the election, and thereafter reread by virtue of Florida’s automatic recount provision. The shutoff will impact 24 counties across Northern California. Chase • What's the dynamic, how does it get addressed to them? 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. KAGAN: We do know that Justice Scalia does have strong feelings in this case. OLSON: Well, I am hoping to convince you that they passed far beyond the normal limits of statutory construction. This is susceptible of a uniform standard. KAGAN: And then, Bob Franken, you do the math. OLSON: Well, I think those cases support the argument. Remember, Indiana has a statute, Michigan has a statute, 33 states have a statute where they just say "intent of voter." SCHNEIDER: Well, it'll look like the fix is in, which a lot of Democrats are saying is the case right now. There is no question the court has a role, as have many courts in this process. O'CONNOR: I'm sorry. So each side is going to make a strong irreparable harm argument. SESNO: There we go. The Constitution assigns to the States the primary responsibility for determining the manner of selecting the Presidential electors. I mean, I would have thought that that bears on the standard, frankly, when it contemplates that it is plenary power in the legislature. even by judicial review in election matters, and that 3 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. Ellsworth • He seeks a Supreme Court ruling that would allow manual recounts in Florida to continue. O'CONNOR: But you think then there is no appellate review in the Supreme Court of what a circuit court does? STEVENS: 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 this pair of statutes? You said that this raised the questions of credibility of the court, it could take years to repair. Obviously, like all Americans, I respect our Constitution. Joining me in our special coverage today, Frank Sesno in Washington; and Bill Hemmer in Tallahassee. KAGAN: And for the Bush camp to hang on to that five to four decision what must they do? Marshall • is that it was taking into account the desire to get the election over in time so that everyone would have the advantage of the safe harbor, and I think that goes throughout the opinion. SESNO: And you think that what the court has done and is doing may take years to repair? Your opponents disagree, and I know you rely very heavily on the dissenting opinion in the Florida Supreme Court. STEVENS: 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? Click here to contact our editorial staff, and click here to report an error. We'll count it." For the second time in less than two weeks now, the United States Supreme Court steps into this fray, this time possibly ending it. And there are very clear directions as to what to do to preserve the integrity of the ballot. Sotomayor • KLOCK: Without being disrespectful, Your Honor, I think you've answered the question in terms of phrasing the question. The last time this case was before the justices, they were instructive, but they were inconclusive, sending the matter back to the Florida Supreme Court, asking for clarification. A party petitioning an appellate court to consider its case. SESNO: Charles, you are going to be inside, we know that, along with Greta Van Susteren, Roger Cossack. From the court, we will hear from Charles Bierbauer, and from the campaigns, Jeanne Meserve with the Bush perspective, and Eileen O'Connor from the Gore camp. 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. SOUTER: But you go to the opposite extreme and say, it seems to me, that they can't look, as Justice Stevens suggested, to a statute which deals with certainly a closely analogous subject at a near stage. Now, in this case -- in this case -- what we're concerned with is an intent. I would hope that whatever they do, that they can close to unanimity. But the danger is not one of the image, the danger is one of political survival. OLSON: I think a different context is not necessarily the case. But we... STEVENS: Except you got to choose one version of the word "legislature" or the other. Stewart • I mean, once we get into the contest phase. That was a situation in which there was telephone notice which was not adequate for certification. I thought the Florida court accepted that, too, in its current opinion. BOIES: But that's true in any contest. In Austin, CNN's Jeanne Meserve is watching things with the Bush campaign, and from Washington, CNN's Eileen O'Connor watching as well with the vice president. We'll be following both those things, and we appreciate the Senators' time as they head into the high court. The action of an appellate court overturning a lower court's decision. O'CONNOR: And what standard did the secretary of state set? SOUTER: Or as a result of the safe harbor statute. SOUTER: But they have ended up with a catch-all provision because, I assume, there may be cases in which the general rule would otherwise operate in which there is an affirmative counter-indication to what the general rule would provide. One other note from Tallahassee, a short time ago, briefs were filed at the State Supreme Court. And I think that the Florida Supreme Court was focussing on this contest period, which is what is really before -- was before them and is before you. PG&E issues weather 'all clear' as winds subside. BOIES: I think there is in a sense, Your Honor. 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? SOUTER: Yes, but in jury-to-jury cases, we assume that there is not an overall objective standard that answers all questions definitively. Holmes • Now, Republicans have a clear majority in both houses, 2-1 in the House, it is nearly 2-1 in the Senate. I think there is a uniform standard. A live picture now from the U.S. Supreme Court. Rehnquist • Story • No. FRANKEN: Moving beyond that, the issue that the Democrats were promoting yesterday is that under in the judicial canon of ethics, in the legal cannon of ethics, there is a code for judges, and one of the parts of that is that the justices must avoid conflicts of interest, and even the appearance of conflict of interest, and that is what everybody was arguing, that as a partner in this law firm, Eugene Scalia has a financial interest in the success of the law firm.

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