Chat Transcript: Legal Expert William Lash III (Dec. 1, 2000)
Dec. 1, 2000 -- On Friday, the nation's highest court will hear arguments over whether Florida's late results — reached by manual recounts — are legitimate. What should we expect from the nation's most powerful justices?
William Lash III, a professor of law at George Mason University and an expert in complex federal litigation, joined us in an online chat following an appearance on Good Morning America. The chat transcript appears below.
Moderator at 12:02pm ET
William Lash joins us live from Washington, D.C. Can you outline the arguments made by the Bush and Gore legal teams at today's Supreme Court hearing?
William Lash at 12:04pm ET
The main argument for the Bush team is that the Florida Supreme Court usurped the role of the state legislature when it adopted new rules for the selection of electors. The Supreme Court is going to look at that question, and another question:
Did the Florida Supreme Court violate title 3, section 5 file of U.S. code? Under this law, disputes concerning selection of electors must be done in accordance with laws enacted prior to Election Day. The new Florida Supreme Court ruling establishing new methods post-Election Day violates this law.
The Gore legal team argues that the Florida Supreme Court simply interpreted Florida law.
Moderator at 12:14pm ET
How strong is the Bush team's case?
William Lash at 12:15pm ET
The Bush team has an excellent brief, and an excellent case. The arguments are well-supported by U.S. Supreme Court precedent, federal law, and, most importantly, the United States Constitution.
Moderator at 12:19pm ET
And how strong is the Gore team's case?
William Lash at 12:20pm ET
The Gore team makes a desperate argument that this is a garden variety matter of interpreting state laws. They assert that, when the Florida legislature enacted the election laws, they de facto empowered the Florida Supreme Court to reach this "novel" ruling using "broad equitable powers."
Moderator at 12:06pm ET
Only two sitting justices are Democratic appointees. Could partisanship play a role in the court's decision?
William Lash at 12:06pm ET
No, because the court thinks of the institution and not of parties. Some of the more liberal court members were appointed by Republicans.
Moderator at 12:08pm ET
Ed Bachant asks: "By finding in favor of Governor Bush, would that effectively suspend future legal action in Florida?"
William Lash at 12:09pm ET
Unfortunately, not necessarily. The Supreme Court's decision would return us to the certification by Florida Secretary of State Katherine Harris as of November 14th. Al Gore could still theoretically push his luck with the contests. Many people believe that a U.S. Supreme Court rejection might lead to an Al Gore concession.
Moderator at 12:09pm ET
Alan Moore asks: "If the Supreme Court rules that the manual recounts are legal, could the Republican-dominated legislature in Florida still go ahead with its plan to send its own handpicked electors to Washington to elect Jeb's brother George? Am I the only one who sees a real problem here?"
William Lash at 12:10pm ET
There is no legal problem with the Florida legislature deciding to elect its own slate of electors if done prior to December 12th.
Stirling Newberry from cmgi.com at 12:10pm ET
Why hasn't anyone in the public debate referenced Federalist 68 — where Hamilton makes it clear that the electors for a state are to be appointed by an election, and not by "any pre-existing body of men"?
William Lash at 12:11pm ET
Unfortunately, though philosophically accurate, the Federalist Papers (I am a Federalist) are not binding, like federal statutes or the Constitution. The Federalist Papers also make clear that the one body of government with no role in selection of electors is the Judiciary.
Jefferson at 12:11pm ET
Since all three branches of our government get their legitimacy from the consent of the governed, what problems do you see arising if the court rules in favor of expediency for Bush and against the more time consuming but legal counting of all legally cast ballots?
William Lash at 12:12pm ET
There is no threat to representative government if the court rules in favor of George Bush. The court would be recognizing, as it has historically, that the legislature is the most representative body.
Moderator at 12:13pm ET
Most experts thought the Supreme Court would not take this case. Some have speculated it might be a sign they're leaning toward overruling the Florida Court. Why do you think they've taken it?
William Lash at 12:13pm ET
I always argued that the court would take the case, primarily because the court recognizes that election of a President "involves a uniquely important national interest."
mdgorman at 12:13pm ET
Is the question of equal protection applicable in this case, or will the justices pass on that issue?
William Lash at 12:14pm ET
It was not a major element of either reply brief, though I believe an equal protection argument has merit. You cannot discriminate against votes and voters simply based upon where they reside in a state.
Dave Sims at 12:15pm ET
How are the Bush lawyers trying to make the case that this is a federal issue?
William Lash at 12:16pm ET
Election of federal officers, including obviously the President, has been recognized by the U.S. Supreme Court as a matter where states have reduced interest. Changing federal laws impacts a federal interest and ignoring the constitutionally mandated separation of powers is also a federal interest, not a state one.
Wilson from longs.com at 12:17pm ET
There seems to be some confusion about when the Florida Legislature can act. Some say not until the 12th [of December]. Some say it must be before the 12th. Why the confusion?
William Lash at 12:17pm ET
They must act up to and including the 12th.
Moderator at 12:17pm ET
You mentioned earlier that the Bush team's arguments are well-supported by U.S. Supreme Court precedent. What's the precedent?
William Lash at 12:18pm ET
There are several, one being Anderson v. Cellebrese, another being Term Limits v. Thornton, and the Teague decision. The first two decisions recognize federal interest in state election of federal officers; the latter discusses the construction of new rules.
Moderator at 12:20pm ET
Do you think the justices will reach a unanimous decision? Any predictions?
William Lash at 12:20pm ET
It's dangerous to speculate. For matters of such vital national interest, unanimity is obviously preferred to divisiveness. However, a majority opinion would still silence the question.
Moderator at 12:06pm ET
Will the court's ruling, expected within several days, provide the decisive word on the prolonged presidential election?
William Lash at 12:07pm ET
It could, and should, both legally and politically end the question, if George Bush wins. A victory for Al Gore still leaves the door open for the Florida Supreme Court to rule on the contest.
Moderator at 12:21pm ET
William, thanks for your time today. Any final thoughts on today's hearing?
William Lash at 12:22pm ET
This is a clear case of judicial activism running smack into close statutory analysis. Unlike the rumors, this is not a case of states' rights. A ruling for the Gore team could place every Presidential election in jeopardy, as rules are selectively and subjectively altered after election day to alter results.
Moderator at 12:39pm ET
Thanks for joining us. And thanks to all of you who participated in this event.
Moderated by ABCNEWS.com's Saira Stewart.