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Law Professor Victor Williams Discusses The Impact Of The U.S. Supreme Court Decision In Bush v. Gore December 13, 2000 More chat transcripts ------------ Edward Lazarus - Medical Marijuana Edward Lazarus - Bush/Supreme Court Anthony Sebok - IBM/Holocaust Julie Hilden - KKK/Freedom of Speech Charles Compton - Microsoft John Dean - Rich Pardon Kevin Grierson - Napster Marci Hamilton - Napster Robert Precht - Embassy Bombings Yonah Alexander - Lockerbie Jonathan Nelson - Embassy Bombings John Dean - Bush Transition Victor Williams - Elections/Supreme Court Edward Lazarus - Elections/Supreme Court Michael Dorf - Elections/Recount John Dean - Elections/Watergate Catherine Christophillis - Drugs/Pregnancy Jennifer Granick - Drugs/Pregnancy Kevin Grierson - Napster Trial Ed Masry - Erin Brockovich Piere Thomas - Wen Ho Lee Lauren Gelman - Internet/Speech Anthony Sebok - Firestone Tires Neal Katyal - Clinton Sanford Levinson - Election Ruti Teitel - Ousted Leaders David Thibodeau - Waco Michael Dorf - Supreme Court Byron Sage - Waco David Linder - Scopes trial Marci Hamilton - Supreme Court Thomas Jurgensen - Human Genome Jeffrey Rosen - Privacy issues Solomon Wisenberg - Death penalty Ted Conover - Sing Sing prison Matthew Glavin - Clinton disbarment Anthony Sebok - Tobacco litigation Douglas Lichtman - Music copyright David Martin - Elian case

Law Professor Victor Williams, who teaches constitutional law at Catholic University in Washington, D.C., joined Law Chat on Wednesday, December 13, to discuss the U.S. Supreme Court's decision in Bush v. Gore. CNN.com provided a typist for Williams. Law Chat is produced with FindLaw. The following is an edited transcript of the chat:

CNN Host: Why did the U.S. Supreme Court issue a per curiam decision, which supposedly speaks for the court, when several dissents and partial concurrences were written?

Victor Williams: Well, it come down to the fact that five justices make the law of the land and with a case of this import, it is important for the court to speak with one voice.

CNN Host: This decision appears to say that on the one hand there are serious problems with the machine properly counting all votes and that the Florida Supreme Court was not wrong in trying to address that. On the other hand, the court is also saying there isn't enough time to do the count the right way. Is this a weasel decision?

Victor Williams: Absolutely not. The decision is a very solid ruling because it recognizes that it is not individual citizens who are enfranchised but rather presidential electors who are appointed by state legislatures.

Question from BobRE: Isn't it true that seven justices found the recounts to date unconstitutional and that the argument that the stay killed the recounts is disingenuous?

Victor Williams: It is very important to emphasize that seven of the nine justices found serious constitutional problems with the recount law and procedures as implemented by the Florida supreme court.

Question from robert: How does the Supreme Court have the right to decide that the December 12 "safe harbor" date is hard and fast when it appears there might be time to back the changes needed to count the votes before December 18?

Victor Williams: It's important to emphasize that our Constitution gives absolute plenary authority to state legislatures to appoint electors directly or devise an election law where the people vote for the electors. Florida's legislature established December 12 as the deadline for all contests to be concluded. The U.S. Supreme Court was only following the letter of the Florida law.

Question fromdaltex: Will we ever know who really won the vote in Florida?

Victor Williams: Yes, we will and we do. I don't think it's too strong to say Gov. George W. Bush won the election. He won in the initial count, in the recount, and in the subsequent recount. It's very important to emphasize that every vote validly cast was counted.

Question from OMG: Can the Democratic Party or anyone else continue the fight to get the votes counted even after Gore concedes?

Victor Williams: Yes. One can always file a lawsuit if one has the filing fee. Hopefully after Mr. Gore has an opportunity to address the nation all litigation will end. And President Bush can get about the important work of transition.

Question from billym: If the safe harbor is not a real date, then why is it in the Constitution?

Victor Williams: Quickly we should say that the safe harbor provision comes from federal statute, not the U.S. Constitution.

CNN Host: Justice Ginsburg was the only dissenter who did not end her comments with "I respectfully dissent." Does this show just how sharply she disagrees with the majority, or is that reading too much into the omission?

Victor Williams: I do think that perhaps is reading a bit much. When the right side of the bench dissents, it does so in strong language. Phrases such as "this court may be seen as nothing more than a nine-headed Caesar" have been seen in conservative dissents. So it should not be a surprise that dissents from the left side of the bench have equally strong language and are equally meaningless in terms of the majority to rule.

Question from bushstoleelection: What happens when we find out the real counts went to Gore next month -- applying the sunshine law, is there any remedy that could make Bush's presidency illegitimate?

Victor Williams: Again, it is very important to emphasize the difference between a vote legally, validly cast and one that was not validly cast. Chief Justice Rehnquist makes a very compelling argument in terms of what is a legal vote. Indeed he quotes from the voting instructions posted: "After voting, check your ballot card to be sure your voting selections are clearly and cleanly punched, and there are no chips left hanging on the back of the card." Chief Justice Rehnquist emphasizes that the electronic and electro-mechanical equipment performed precisely in the manner in which it was designed to perform, and did not count the invalid ballots.

Question from dr-bahn: If it is in the Constitution that the election of our national leader is in the hands of the states, then how can the federally-appointed Supreme Court make the ultimate decision regarding a state-run election? Doesn't that make that 5-4 ruling by the court "unconstitutional"?

Victor Williams: Excellent question because it provides the opportunity to emphasize that the Constitution gives total authority over presidential elections-- over the appointment method of presidential electors-- not to the state as such, but solely to the state legislatures. The reason that the U.S. Supreme Court had to step in, and the reason that the majority ruling was the correct one, is because the Florida Supreme Court substantially usurped the state legislature's textual authority in rewriting the Florida election law.

Question from Rosie: Professor Williams, all the American public wanted was a decisive opinion offered by the most learned legal minds of this country. Instead what they got was hugely politically divided opinion. How can the court maintain credibility when their division is so blatantly obvious?

Victor Williams: Well, I appreciate the question, but I have to disagree with its premise. I don't believe that it was a politically divided, though it may be a divisive result. Again, seven out of the nine justices found substantial equal protection and due process violations in the Florida Supreme Court mandated recount. Seven out of nine is not unanimous, but it's not politically divided.

Question from partial: How can the justices imply that there has to be a uniform way to count the votes, but without addressing that there also must then be a uniform way to cast those same votes if it is to be truly fair?

Victor Williams: Probably the best question of our chat thus far, because the per curiam opinion is explicit in detailing the extent of the disparate treatment in the counting and recounting of the ballots pursuant to the Florida Supreme Court edict. The separate issue of disparate access to the voting booth and the more interesting question of disparate voting methods throughout the state of Florida, simply was not presented as an issue to the U.S. Supreme Court. Indeed the Florida Supreme Court ruled against challenges to the so-called Butterfly ballot used in Palm Beach County. But it's an important question and raises issues which must not only be addressed in Florida, but throughout the nation.

Question from STOLEN: How is it that the highest court couldn't extend the time required to provide a remedy? Didn't Hawaii select their electors in December?

Victor Williams: Yes. That's also an excellent question, as it gives us an opportunity to again emphasize that it is indeed the Florida legislature that set the deadline of December 12. The Hawaii case referenced from 1960 involved the authority of the U.S. Congress sitting in joint session to accept or reject a late-filed slate of electors.

Question from SPP: If Florida does not change the way its voters cast their ballots, isn't the state going to look foolish if this happens again in 2002 or 2004, now that everyone will be watching?

Victor Williams: Yes, let's not single out the state of Florida. Each county or each parish in each state of the union must review its election law and its balloting process.

CNN Host: Justice Breyer said the court should never have taken this case. Do you agree?

Victor Williams: I found Justice Breyer's very strong statements at the beginning of his dissenting opinion to be curious. On the one hand his brethren are framing out to him a substantial equal protection and due process violation of the U.S. Constitution ordered by Florida State Court edict. We have Justice Breyer saying see no evil, hear no evil. It's reminiscent of the bad old days in the South when state courts sought to treat their citizens differently in violation of U.S. Constitutional norms.

Question from sue: Since the Florida legislature allowed for manual recounts to determine the intent of the voter, without specifying the criteria, how could the Florida Supreme Court then specify the criteria. Wouldn't they then be accused of 'making law'?

Victor Williams: Well, that's a very fair question. And it frames the Catch-22 of this very complicated and difficult case. But clearly the per curiam opinion of the U.S. Supreme Court tells us that the equal protection and due process guarantees of the U.S. Constitution have to trump all else.

CNN Host: Does the U.S. Supreme Court risk looking too political with this decision? What do you think of Justice Stevens' dissent in this regard?

Victor Williams: No. I don't believe the U.S. Supreme Court looks too political in this issue, in resolving this case that was thrust upon them by the Florida Supreme Court's unconstitutional processes. If the state court judges have had their legitimacy questioned, I think it's fair to say that they did it to themselves.

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

Victor Williams: Just that as Thomas Jefferson said after the electoral college was tied in 1800 and he was selected by the U.S. House of Representatives, we are all Republicans. We are all Federalists. Truly today, December 13, 2000 we must say we are all Republicans. We are all Democrats. We are all Greens. And thank the founders for this Constitution they have given us, including its Article 5 provision for amendments. It is true that there is no constitutional right to vote for president. But there can be. The Constitution can be amended to be sure that voting in presidential elections is a matter of right, not a matter of state legislative grace. In the meantime, however, full power resides with the state legislatures. And it will be interesting to see if the Florida Senate joins the Florida House in joint resolution to ratify the certified vote by direct appointment of Florida's 25 electors.