Text of the U.S. Supreme Court hearing on Monday, as transcribed by eMediaMillWorks, Inc.:
CHIEF JUSTICE WILLIAM H. REHNQUIST: We'll hear argument now in number 00949, George W. Bush and Richard Cheney vs. Albert Gore, et al.
Before we begin the arguments, the court wishes to commend all of the parties to this case on their exemplary briefing under very trying circumstances. We greatly appreciate it. Mr. Olson?
THEODORE B. OLSON, lawyer for the Bush campaign: Mr. Chief Justice, thank you. And may it please the court:
Just one week ago, this court vacated the Florida Supreme Court's Nov. 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 Dec. 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 Nov. 21 judgment that this court had made into a nullity.
JUSTICE ANTHONY M. KENNEDY: Can you begin by telling us our federal jurisdiction? Where's the federal question here?
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 3 of federal law.
JUSTICE KENNEDY: 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 a state agency--it seems to me a holding which has grave implications for our republican theory of government.
OLSON: Justice Kennedy, the Constitution specifically vested the authority to determine the manner of the appointment of 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 of the state.
JUSTICE KENNEDY: Then why didn't it do that here?
OLSON: I did not do that here because it did not specify--it did use the executive branch. In fact, it vested considerable authority in the [Florida] secretary of state [Katherine Harris], 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 considerable other responsibilities. 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.
JUSTICE SANDRA DAY O'CONNOR: But you think then there is no appellate review in the Supreme Court of what a circuit court does?
OLSON: Certainly, the Legislature did not have to provide appellate review.
JUSTICE O'CONNOR: Well, but it seemed apparently to just include selection of electors in the general election law provisions. It assumed that they'd all be lumped in together somehow. They didn't break it out.
OLSON: Well, there is a breakout with respect to various aspects of Florida statute and Florida election law. There's a specific grant of authority to the circuit courts. There's no reference to an appellate jurisdiction. It may not be the most powerful argument we bring to the Supreme Court.
JUSTICE KENNEDY: I think that's right. (LAUGHTER)
OLSON: Because, notwithstanding--well, the fact is that the Constitution may have been invoked . . .
JUSTICE KENNEDY: 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 the courts or the executive has gone too far? Is that what you're arguing?
OLSON: No. I would say this with respect to--it would have been perfectly logical, and if you read the statutes, it's 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 deadlines, especially in the context of this election, the way it's played out, there is not time for an appellate court.