Foster v. Love Page 19

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Media for Foster v. Love

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

Antonin Scalia:

I... You keep--

Stephen G. Breyer:

--I think if people had focused on this we'd have a few briefs here from other States that would be concerned about it, and so I'm a little uncertain what to do.

It seems to me it's coming up for the first time now.

Ruth Bader Ginsburg:

Mr. Baker, I thought that you had answered my question that this is an election when everybody votes.

I thought that was your distinction between party primaries that happen to come up with the same candidate but not everybody votes together, and this, which you agreed, I thought, that it is an election because everybody votes and everybody who's running must run, that those two things in combination equal an election, and if that's so, then you would distinguish your case from the party primaries that may happen to come up with the same candidate.

M. Miller Baker:

--That's correct, Justice Ginsburg, and for the added reason that those party primaries don't as a matter of law select the congressional officer.

They simply have selected a nominee who will appear on a ballot, and if by happenstance the same person has been chosen by the respective Democratic and Republican primaries, the election is still held in... the conclusive election is held in November, and the primaries were not legally... were not the legal selection of the congressional officer.

Ruth Bader Ginsburg:

And Louisiana has been candid in describing its system, because it says, if you have somebody who comes out of this race, whatever it is, with a majority vote, that person is elected.

M. Miller Baker:


That's correct, Justice Ginsburg, and section 8, the companion statute to section 7, 2 U.S.C. section 8, is a statute that answers this... that gives us the answer in this case.

Elections in 1872 were like the elections that Louisiana has today.

Everybody appeared at the polls.

Everybody voted.

In most States, a plurality election was sufficient to elect a person to Congress, but a number of States have majority vote requirements as does Louisiana today, so therefore Congress inserted section 8 into title 2 to provide for the contingency of a failure to elect on Federal Election Day, and that's the statute that Louisiana could follow and have its post Federal Election Day run-off if it so chose to do that.

If there are no further questions, that concludes my argument.

William H. Rehnquist:

Thank you, Mr. Baker.

General Ieyoub, you have 2 minutes remaining.

Richard I. Ieyoub:

Mr. Chief Justice, and may it please the Court, I have no rebuttal.

William H. Rehnquist:

Thank you.

The case is submitted.