Foster v. Love Page 16

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Audio Transcription for Oral Argument - October 06, 1997 in Foster v. Love

Stephen G. Breyer:

[Laughter]

That's why I'm uncertain whether we have to reach it.

How would you fill in the blank?

M. Miller Baker:

The argument is unconvincing because the election that selected the Member for office was held in October, and there was no election in November, Justice Breyer.

Ruth Bader Ginsburg:

Mr. Baker, maybe I misunderstood you, but I think the premise of Justice Breyer's question is that it would be okay to comply just by saying that the one who gets the most votes in October is on the ballot, and nobody else, and nobody else qualifies.

I thought your answer to that was that that would not be compliance with the Federal elections statute.

M. Miller Baker:

That's... maybe I misunderstood Justice Breyer's question.

Ruth Bader Ginsburg:

So--

M. Miller Baker:

That would not comply with the Federal--

Ruth Bader Ginsburg:

--But it would if you said the two top runners.

M. Miller Baker:

--That's... there are numerous correct, Justice Ginsburg... there are numerous possibilities for fixing this system so that it--

Ruth Bader Ginsburg:

I see two.

One is, you move the... what they call the open primary to Election Day.

Another one is, you put the top two.

Antonin Scalia:

Or maybe the first and the last.

[Laughter]

I mean, that would give you an election on Election Day, wouldn't it?

David H. Souter:

What if you had a scheme in which the Louisiana statute said, whoever gets a majority in October will be on the November ballot and will be the only name on the November ballot, and there will be no write-ins, but unless in November that person gets at least one vote, that person will not or cannot be elected, would that satisfy the Federal law?

The reason I ask the question is, I think what you're saying is, there's got to be voting on the November date which is operative to elect, and in my silly hypothetical there would in fact be voting in November that would be operative to elect, and so that's why I'm asking.

Is that sort of the nub of what you're arguing here?

M. Miller Baker:

--It would be... well, under your hypothetical it would be legally possible to be elected or not be elected if a candidate did receive a vote, as I understand your hypothetical.

David H. Souter:

That's right.

Nobody votes for the October winner, and therefore no one is elected for that office.

M. Miller Baker:

Which is distinguished from most... all right, under that... if State law were as you posited it, Justice Souter, and it would only take one vote to elect this person, this person was on the ballot, there would be an election on Federal Election Day, but it would not... there would be serious, profound questions raised whether or not this election satisfied this Court's First and Fourteenth Amendment jurisprudence--

David H. Souter:

What is the reason for that?

Are you saying the reason is there's got to be a choice as between at least two candidates on that date?

M. Miller Baker:

--An election, by definition, presupposes a choice.

That's--

David H. Souter:

Or at least an opportunity so far as State law is concerned for a choice.

M. Miller Baker:

--Correct, Justice Souter.