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Attorney Ed Lazarus Discusses the U.S. Supreme Court Decision and State Court Battles in the Florida Election

December 6, 2000

(CNN) -- Edward Lazarus, a former U.S. Supreme Court clerk and the author of "Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court," joined Law Chat on Wednesday, December 6, to discuss the latest court battles in the Florida presidential election. Law Chat is produced with FindLaw. provided a typist for Lazarus. The following is an edited transcript of the chat.

CNN Host: Does the U.S. Supreme Court ruling have any effect on the Seminole or Martin County cases?

Edward Lazarus: The short answer to that question is no, it does not have any direct affect on those cases. The Supreme Court decision was directed only at the authority of the Florida Supreme Court to change the election certification deadline. The two cases you referenced deal with challenges to the legality of certain absentee votes. That issue was not before the U.S. Supreme Court.

Question from Roy: Will the Florida Supreme Court need to respond to the original deadline extension case before it renders a decision on the election contest?

Edward Lazarus: That is a very good question. The answer I think is yes, the court should respond to the Supreme Court first, because the Florida court needs to clarify exactly what election certification Vice President Gore is contesting. However, in my view, it should not be difficult for the Florida Supreme Court to essentially reassert its original ruling on certification with some small modification to comply with the U.S. Supreme Court's order.

Question from Jack: Why do you think the justices even heard the case if it was pretty apparent they were going to "punt" without a ruling on any of the federal issues raised?

Edward Lazarus: Another excellent question. I think the answer to that may lie in the events that occurred between the time the court accepted the case and the next week when it heard the case. When the court accepted the case, there seemed to be a substantial chance that Al Gore would be the certified winner under an extended certification deadline. Miami Beach had not stopped its recount, Palm Beach had not missed the recount deadline. By the time the court decided the case, Texas Gov. George W. Bush was the certified winner and therefore the court's conservative justices had much less reason to push for an outright reversal of the Florida Supreme Court. As a result, the 9-0 compromise "punt," as you called it, was something everyone could agree to.

Question from Vote Twice: The ruling by the U.S. Supreme Court was not a punt. They did not overturn the Florida court ruling, but gave them the option to clarify themselves.

Edward Lazarus: I am not sure of the exact numbers, but the legal count should be the count that would exist if the Florida Supreme Court had simply never ruled in the case. This is another reason why, as I noted earlier, I think and expect that the Florida court will address the U.S. Supreme Court's order before deciding Gore's contest.

Question from lala: Could any of the supreme courts determine that it would be in the nation's best interest to count all of the machine rejected votes in Florida as a remedy to this situation?

Edward Lazarus: I think as a technical matter the answer is probably no, although candidly, I am not sure. Without having seen all of the papers currently filed with the Florida courts, I am not sure whether the legal claim presented to the Florida court s are broad enough to permit that remedy. As a practical matter, moreover, the December 12 deadline looms ever larger. And such a statewide remedy, however sensible, may simply be an impossibility. At this stage, it is certain that the U.S. Supreme Court could not order such a remedy, as it currently has no case before it.

Question from Max: What remedies are available when a local election official breaks a rule that itself provides no remedy?

Edward Lazarus: The answer to that question will depend on the individual law and court decisions of the state in which such a discrepancy occurs. Generally speaking, courts possess what is known as "equitable powers" to fashion remedies that fit the nature of legal violation. This problem of remedy would appear especially acute in the Seminole County scenario where there apparently is no way to distinguish ballots filed pursuant to improper absentee ballot applications, and absentee ballots that are completely unobjectionable.

Question from clerk01: As a practical matter, is it within the U.S. Supreme Court's equitable jurisdiction to fashion an equitable remedy upon the Florida government?

Edward Lazarus: Basically, the answer is no. The Supreme Court under our Constitution is limited to deciding actual cases and controversies, and cannot simply step in to a legal "situation" to impose the national judicial interest on a state.

CNN Host: What are the possible legal scenarios if the Seminole and Martin county decisions favor Gore, but the Florida Supreme Court issues a decision that favors Bush?

Edward Lazarus: If the Florida Supreme Court decides in Bush's favor, and if the Seminole and Martin county judges also rule for Bush, it seems to me that the ballgame is over. But a Gore victory in either of the two counties, or before the Florida Supreme Court in the contest, especially prior to December 12, very well might set the stage for a showdown between the Florida courts, which will have Gore as the winner, and the Florida legislature, which may nonetheless attempt to name a Bush slate of electors.

CNN Host: Do you have any final thoughts for us?

Edward Lazarus: My final thoughts are: I think we all have to be careful not to evaluate what is going on on a minute-by-minute basis. Because in the end, almost all of the current disputes will be appealed and those appeals could result in a dramatic turn of events for one side or the other. Which brings me to my second point and that is: It seems as though this Wagnerian opera may be reaching the final act. But as with so many operas, the end really may still be far from sight.