BOIES: Your Honor, I think the Boardman case relates not to the counting of votes; it has nothing to do with the standard in terms of the intent of the voter. The Boardman case, the language that you're referring to is at Page 268 of the Southern Reporter report of that case. And what is clear from that page and that discussion is it's dealing with the issue of whether or not, because the canvassing board threw away the envelopes from the absentee ballots so they could not be checked, whether that invalidated the absentee ballots.
And the court says, "No, it doesn't, because it's important to count all these votes, and because we assume that what they were doing was proper."
That does not, I respectfully suggest, at all deal with the question of deference to the voter-intent determination, which the court has repeatedly said is a matter for judicial determination.
The other thing that I would say with respect to intent, and I know the court is concerned about whether the standard is too general or not, some states have made specific criteria their law. Other states, not just Florida, 10 or 11 of them, including Massachusetts in the Delahunt case that we cited, have stuck with this very general standard. There's a sense in which that may be an Article II issue.
JUSTICE SOUTER: Mr. Boies, let's assume that at the end of the day, the Leon County, Florida, judge gets a series of counts from different counties, and those counties have used different standards in making their counts. At that point, in your judgment, is it a violation of the Constitution for the Leon County judge to say, "I don't care that there are different standards. As long as they purported to follow intent of the voter, that's good enough." Can we do that?
CHIEF JUSTICE REHNQUIST: I'll extend your time by two minutes, Mr. Boies.
BOIES: Yes. I do not believe that that would violate the equal protection and due process clause. That distinction between how they interpret the intent of the voter standard is going to have a lot less effect on how votes are treated than the mere difference in the types of machines that are used.
JUSTICE SOUTER: Then the fact that there is a single judge at the end of the process, on your judgment, really is not an answer to the concern that we have raised.
BOIES: No, I think it is an answer. I think there are two answers to it.
First, I think that the answer that they did it differently, different people interpreting the general standard differently, would not raise a problem--even the absence of judicial review of that.
Second, even if that would have raised a constitutional problem, I think the judicial review that provides the standardization would solve that problem.
The third thing that I was saying is that any differences as to how this standard is interpreted have a lot less significance in terms of what votes are counted or not counted than simply the differences in machines that exist throughout the counties of Florida. There are five times as many undervotes in punch-card ballot counties than in optical ballot counties.
Now, for whatever that reason is, whether it's voter error or machine problems, that statistic, you know, makes clear that there's some difference in how votes are being treated county by county. That difference is much greater than the difference in how many votes are recovered in Palm Beach or Broward or Volusia or Miami-Dade.
So that the differences of interpretation of the general standard are resulting in far fewer differences among counties than simply the differences in the machines that they have.
CHIEF JUSTICE REHNQUIST: Thank you.
BOIES: Thank you very much.
CHIEF JUSTICE REHNQUIST: Mr. Olson, you have five minutes remaining.
OLSON: Thank you, Mr. Chief Justice.
I would like to start with a point or two with respect to the equal protection/due process component of this case.
The Florida Democratic Party, on Nov. 20 of this year, was asking the Florida Supreme Court to establish uniform standards with respect to the looking at and evaluating these ballots, a recognition that there were no uniform standards and that there ought to be.
Last Tuesday, in the 11th Circuit, unless I misheard him, the attorney for the attorney general of Florida said that the standards for evaluating these ballots are evolving.
There is no question, based upon this record, that there are different standards from county to county--
JUSTICE O'CONNOR: Well, there are different ballots from county to county too, Mr. Olson, and that's part of the argument that I don't understand. There are machines; there's the optical scanning. And then there are a whole variety of ballots; there's the butterfly ballot that we've heard about and other kinds of postcard ballots.
How can you have one standard when there are so many varieties of ballots?
OLSON: Certainly, the standard should be that similarly situated voters and similarly situated ballots ought to be evaluated by comparable standards.