Constitutional Law Professor Ron Rotunda: legal rulings in the presidential election

(CNN) – Trials begin Wednesday, December 6 in two Florida counties where Democrats are seeking to have more than 15,000 absentee ballots discounted because Republicans were allowed to correct errors on absentee ballot applications. Thursday the Florida Supreme Court will hear an appeal from Vice President Al Gore’s attorneys contesting a ruling by Judge Sauls, who rejected Gore’s request to have 14,000 disputed ballots recounted manually. The dispute over the state’s presidential election results is in its fourth week. At stake are the state’s 25 electoral votes that will determine the next U.S. president.

Ron Rotunda is a professor at the University of Illinois School of Law. Currently on leave, he is a visiting senior fellow in constitutional studies at the Cato Institute. Rotunda is the author of "Modern Constitutional Law." Before becoming a professor, he was a noted lawyer and served as assistant majority counsel for the Watergate Committee.

Chat Moderator: Welcome to the CNN chat room, Ron Rotunda.

Ron Rotunda: Hello. Glad to be here.

Chat Moderator: What legal options remain for Vice President Gore after the rulings by Judge Sauls and the U.S. Supreme Court?

Ron Rotunda: Well, his options are fast reducing. He will appeal the trial court judge's order. He is unlikely to win that because the trial judge ruled on the fact. Appellate courts typically defer to the trial judge on factual matters.

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Secondly, there is litigation by Democratic voters in Seminole County seeking to disqualify about 15,000 votes. If the trial judge grants that relief, Gore would win the state by about 4,000 votes. He is unlikely to win that because of Florida law.

The third alternative is if he can persuade some electors to vote for him instead of Bush. He has said he would not do that.

Question from Illinoisgrad: Professor Rotunda, it seems a bit unclear from the Supreme Court decision whether they were attempting to corner the Florida Supreme Court into establishing federal jurisdiction or whether they were trying to give them an out. Which do you think it is?

Ron Rotunda: I don't think they are punting or passing the buck. This is an opinion written by all nine justices. When something is written by nine people, it does not have the clarity as if it was written by one.

The court has asked the state court to clarify the rationale of its decision. If the state court is relying in any way on the state Constitution or sources of authority outside the state statute, the United States Supreme Court will reverse. If the state court now makes clear it was only interpreting state law, then the next question is if it violates due process and/or equal protection.

The losing party can then seek a U.S. Supreme Court review again though we don't know if the U.S. Supreme Court would accept the case again. The U.S. Supreme Court, unlike most courts, has the discretion to decide which cases to hear.

Chat Moderator: What impact, if any, do you think the Supreme Court's action will have on the Florida Supreme Court? Will it now be overly cautious in its approach? How will this affect the timeliness of any decisions?

Ron Rotunda: It is difficult to predict. I think it's clear that the U.S. Supreme Court has decided these issues are federal issues and can be heard in federal court. The state Supreme Court, many commentators and Gore's lawyers have argued that these are state issues. We know now that that is incorrect.

Chat Moderator: What are the constitutional issues being addressed in the 11th Circuit Court of Appeals today? How significant is this hearing?

Ron Rotunda: The hearing can be very significant, depending on what the 11th Circuit does. The side that favors Governor Bush has argued that there are constitutional violations in some of the post-election procedures that the Florida canvassing boards have followed. I have not read the briefs the parties have just filed, so I can't comment any more than that.

Question from Spin: Do you believe that Seminole and Martin Counties could be sleepers in this issue, and why?

Ron Rotunda: Well, both of these cases are perhaps Vice President Gore's best chance to win in the courts. I think it's unlikely that the Democratic voters will win the suit because Florida state law is clear that judges are not supposed to toss out ballots for technical reasons. In this case, the technical glitch does not relate to the ballots but to the applications for the ballots. So he's unlikely to win but, if he does, he will get thousands of votes and that would decide the race.

He is not a party to this suit but Democratic voters are, and a victory of those plaintiffs would directly help the vice president. I think they are two very important cases to watch.

Question from Beachy: What recourse does Governor Bush have if those absentee votes are thrown out in Seminole County?

Ron Rotunda: He will appeal to the Florida Supreme Court. The law is fairly favorable to the governor on this issue. The voters are asking to toss out 15,000 votes because the applications for 4,000 of the absentee ballots lacked a voter ID number. The votes themselves were validly cast and all the people were honestly absentee.

There will be a hearing tomorrow before the judge in the Seminole County case. At that hearing, we will know more about the facts both sides allege. And we'll have a better chance to see if these votes will be tossed out.

Question from NormalDad: Professor Rotunda, greetings from one of your University of Illinois students. Do you believe that the Florida Supreme Court will have a difficult time overruling Judge Sauls since he based a large part of his decision on lack of evidence?

Ron Rotunda: Yes. I think that it's very unlikely that Vice President Gore will get the case overturned. He saw the witnesses and evaluated the evidence and that's something the appellate courts do not do. It defers to the trial court.

Chat Moderator: What legal maneuvers and considerations can we expect from the two parties in the next day or two?

Ron Rotunda: I think both parties will move with a lot of speed and throw a lot of lawyers at every issue. You know the Chinese curse: We are living in interesting times.

Question from Diba: I am writing from Berlin, Germany. American media talks about the whole thing as "making history." Don't you think, rather, that it is a fundamental crisis for the American political system that we are living through?

Ron Rotunda: I think it's both. It is historical and we have a constitutional crisis. I am confident it will be peacefully resolved, but no candidate has ever pushed the envelope or the litigation this far.

Chat Moderator: Thank you for joining us today, Ron Rotunda.

Ron Rotunda: Thank you. It was a pleasure to be invited.

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