Excerpts from the U.S. Supreme Court hearing arguments in connection with the disputed presidential election as transcribed eMediaMillWorks, Inc.:
CHIEF JUSTICE WILLIAM H. REHNQUIST: We'll hear argument this morning in number 00836, George W. Bush v. The Palm Beach County Canvassing Board. Mr. Olson?
THEODORE OLSON, Bush campaign attorney: ... Two weeks after the November 7 president election, the Florida Supreme Court overturned and materially rewrote portions of the carefully formulated set of laws enacted by Florida's legislature to govern the conduct of that election and the determination of controversies with respect to who prevailed on November 7.
These laws have been formulated by the Florida legislature pursuant to an expressed delegation of authority to it by the United States Constitution.
The election code that the Florida legislature developed conformed to Title 3, Section 5 of the United States Code. That provision invites states to devise rules in advance of an election to govern the counting of votes and the settling of election controversies.
JUSTICE SANDRA DAY O'CONNOR: Well, Mr. Olson, isn't Section 5 sort of a safe harbor provision for states? And do you think that it gives some independent right of a candidate to overturn a Florida decision based on that section?
OLSON: We do, Justice O'Connor. It is a safe harbor, but it's more than that. And Section 5 of Title 3 needs to be construed in connection with the history that brought it forth.
JUSTICE ANTHONY M. KENNEDY: Well, but we're looking for a federal issue. And I thought that you might have argued that the secretary of state was instructed by the Supreme Court not to jeopardize the state's chances. ... And so if the state Supreme Court relied on a federal issue or a federal background principle and got it wrong, then you can be here.
OLSON: Well, I certainly agree that it mentioned those provisions. I'm simply saying that it blew past the important provisions of Section 5 and the benefits that Section 5 gives to the states, to the voters in that state, and to the people running for office in that state. That is to say that if the rules are complied with, if disputes are resolved according to the rules that are set forth, then not only will the electors chosen by the voters in that state be given conclusive effect at the time they are counted by Congress, but we will not have the controversy, dispute and chaos that's been taking place in Florida since then.
JUSTICE ANTONIN SCALIA: Mr. Olson, suppose a less controversial federal benefit scheme. Let's say the scheme that says states can get highway funds if they hold their highway speeds to a certain level, all right? And suppose you have a state Supreme Court that, in your view, unreasonably interprets a state statute as not holding the highway speed to the level required in order to get the benefit of that safe harbor. Would you think that that raises a federal question and that you could appeal a state court decision here, because it deprived the state of the benefit of the highway fund?
OLSON: No, I don't think so.
SCALIA: Why is this any different?
OLSON: This is a great deal different, because this is the .. First of all, Article II of the Constitution, which vests authority to establish the rules exclusively in the legislatures of the state, tie in with Section 5. Secondly, as this court has stated...
SCALIA: Well, let's just talk about Section 5. I mean, the constitutional questions and other--why is Section 5, in that regard, any different from the highway funding?
OLSON: I think it can't be divorced from Article II of the Constitution, because it's a part of a plan for the vesting in the legislatures of a state. And Section 5 implements Article II, in the sense that it provides a benefit, not just to the state, but to the voters of this county.
KENNEDY: But just talk about the statutory issue. I assume that if we worked long enough with Justice Scalia's hypothetical, we could find a case where a court adjudicated with reference to the federal principle and got the federal principle wrong. ... Did that happen here?
OlSON: Well, I think that the state did not pay--the state Supreme Court did not pay much attention to the federal statute. It was obviously aware of it. ...
KENNEDY: Well, then there's no federal constitutional issue here.
OLSON: Well, there is a federal...
KENNEDY: I mean statutory.
OLSON: Well, we believe that there is, Justice Kennedy, because, although the state recognized it, it blew right past it. The state legislature adopted the code that the Section 5 of Article 3--of Title 3 invited it to do. The state Supreme Court, which had no right under the Constitution — but I can't divorce the constitutional provision from Section 5 — then overturned the plan that the state enacted through its legislature to make sure that what happened down in Florida was not going to happen.
And so what the state Supreme Court did, knowing full well that these provisions existed, overturned the carefully enacted plan by Florida...
REHNQUIST: Mr. Olson, do you think that Congress, when it passed 3 U.S.C. (federal law), intended that there would be any judicial involvement with it? I mean, it seems to me it can just as easily be read as a direction to Congress saying what we're going to do when these electoral votes are presented to us for counting.
OLSON: I think that it wasn't directed to Congress, but it seems to me that in the context in which it was adopted and the promise that it afforded, that the conclusive effect would be given to the state's selection of electors, that it is a somewhat empty remedy, and it doesn't accomplish Congress' objectives if it cannot be enforced when an agency of the state government steps in, as the Florida Supreme Court did here, and overturn the plan by which the Florida legislature carefully set forth a program so that so that disputes could be resolved, and we wouldn't have the controversy, conflict and chaos that we submit exists today in Florida.