Presidential Election Trials: 2000

Saturday, December 9

Just before 3:00 P.M., the U.S. Supreme Court, voting 5-4, ordered Florida to stop counting votes. It set Monday morning to hear the Bush appeal.

Monday, December 11

Bush attorney Olson was only 54 seconds into his opening statement before the U.S. Supreme Court when Justice Anthony M. Kennedy interrupted, asking, "What's the federal question here?" He said the proposition that a state legislature should not be guided by the courts "seems to me a holding that has grave implications for our republican theory of government." Olson responded that the Constitution gave state legislatures the authority to appoint electors and that legislatures were empowered to use the executive as well as judicial branch to implement election procedures. In Florida, he explained, the legislature designated the executive branch, in the secretary of state, to enforce the election law. It also assigned the Circuit Court as trial court to judge any election contests. "There is no reference," said Olson, "to an appellate jurisdiction."

Justice Breyer tried more than once to get Olson to state what he considered a "fair standard" for counting ballots on which the machine had found no vote for president. Finally, Olson said, "That is the job for a legislature."

The justice insisted on getting Olson's opinion.

"A reasonable standard," said Olson, "would have to be, at minimum, a penetration of the chad in the ballot because indentations are no standards at all."

Justice Stevens followed up: "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?"

Olson said that was not a fair inference. Justice Breyer asked what would be a basically fair standard. "I would hold that you have to punch the chad through on a ballot," said Olson. "The only problem we have here is created by people who did not follow instructions."

Representing Gore, attorney Boies's task was to convince the court that the Florida Supreme Court had not exceeded its authority by ordering the manual recount. He argued that it was entitled to the deference usually shown to state courts by the nation's highest court. "You are responding," said Justice O'Connor, "as though there were no special burden to show some deference to legislative choices." Citing the U.S. Constitution's Article II, she noted that state legislatures have the authority to determine the manner of choosing the state's presidential electors. "In the context of selection of presidential electors," she added, "isn't there a big red flag up there, 'Watch out'?"

Justice O'Connor next commented on the Florida court's failure to respond to the justices' unanimous order, a week earlier, vacating the Florida court's previous decision to extend the deadline for certifying presidential vote totals. The Florida Supreme Court, she said, "just seemed to kind of bypass it and assume that all those changes and deadlines were just fine and they could go ahead and adhere to them. And I found that troublesome."