Georgetown law professor Viet Dinh: the Supreme Court and the presidential election

(CNN) – On Monday, December 4, the United States Supreme Court ruled that Florida’s Supreme Court needs to further consider and explain its ruling allowing manual presidential ballot recounts after a November 14 deadline set by the state legislature. The U.S. Supreme Court declined to rule on whether the Florida justices violated the Constitution and federal election laws. Leon County Circuit Court Judge N. Sanders Sauls postponed his decision on Democrat Al Gore’s challenge to the voting results in three Florida counties until he can review the U.S. Supreme Court decision.

Viet Dinh is a professor of law at Georgetown University Law Center, where he teaches constitutional law. Professor Dinh was in the U.S. Supreme Court for the Bush hearing. Dinh is a former Supreme Court clerk to Justice Sandra Day O'Connor. He also was a special counsel to Senator Pete Domenici during the Clinton impeachment trial and an associate special counsel to the special committee to investigate the Whitewater Development Corporation.

Chat Moderator: Welcome to the CNN chat room, Viet Dinh.

Viet Dinh: Glad to be here.

Chat Moderator: What is your interpretation of the Supreme Court's per curiam decision, especially the last sentence of its decision?

Viet Dinh: The court today has set aside the Florida court decision. This has both a legal and practical effect. The legal import is that the court has recognized this case to be a federal case. Otherwise, there would be no legal basis for the court to set aside the decision of the Florida Supreme Court.

The practical effect is that if the Florida Supreme Court does nothing more, then the Bush lawyers will have won the case because the Florida Supreme Court decision has been taken off the books. The November 14 certification would stand, instead of the judicially mandated November 26 certification.

Question from Amy: Mr. Dinh, how will the Supreme Court's decision affect Judge Sauls’ decision?

Viet Dinh: Judge Sanders Sauls has suspended action in his courtroom pending review of the Supreme Court decision. The precise effect of the Supreme Court decision on Judge Sauls’ proceedings actually depends on what the Florida Supreme Court decides to do. If it does nothing, which is unlikely, then Judge Sauls’ contest proceeding would take place as if it happened on November 15, following the November 14 certification. But, obviously, whatever the precise effect will be depends on what the Florida Supreme Court decides to do from here on.

Chat Moderator: From what you have heard or seen about today's Supreme Court ruling, are you surprised by anything in their discussion or language of the decision?

Viet Dinh: No, I am not surprised. I am actually very heartened that the court has found a way to issue a unanimous disposition of the case. This disposition recognizes that this is an issue of federal importance and controlling authority. Therefore, it is perfectly consistent with the recent cases from the Supreme Court dealing with states' rights. This case is not about states' rights because no federal law infringing on state sovereignty is at issue here.

Rather, this case concerns whether a state law conflicts with the federal Constitution or statute. This case, therefore, is about federal preemption of state law. Article VI of the Constitution expressly states that federal law is the supreme law of the land. Indeed, in all four cases last year presenting the question of whether state law trumps conflicting federal law, the court held against the states because, obviously, federal law trumps state law under the supremacy clause.

Question from We: Since the United States Supreme Court vacated the Florida Supreme Court ruling, does that mean that all actions that have been taken under that ruling are vacated, such as the recount and the legal proceedings that are going on now?

Viet Dinh: Not necessarily. The court also remanded the case for proceedings before the Florida Supreme Court, consistent with its decision. That simply means that the Florida Supreme Court has a new opportunity to act.

It may reissue its decision, but rewrite it in a clearer manner so that the U.S. Supreme Court can answer the federal questions presented in this case. Or the Florida Supreme Court may, in light of the Supreme Court decision, revise its decision and thereby invalidate or change some of the actions made pursuant to the original decision.

Question from BbinSF: Sir, how will the Florida Supreme Court rewrite its order to conform to the U.S. Supreme Court order?

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Viet Dinh: That is the $64,000 question! Those of you who are richer, just add more zeros!

The Supreme Court clearly states that the Constitution commits the appointment of electors to the Florida legislature. The Supreme Court also stated that the Florida Supreme Court may want to construe the election law of Florida to take into account the legislature's wish to take advantage of the "safe harbor" provision of 2 U.S.C., Sec. 5.

So, the Florida Supreme Court, in crafting a new opinion, would need to be mindful first that it is not intruding into the providence of the legislature to make the law, but only stick to the judicial function of interpreting the law. In that interpretation, the Florida Supreme Court would, it seems to me, need to take into account the desire of the Florida legislature to balance the need for finality and accuracy in the certification procedure.

Question from Fed-up: Do you think that this decision opened the door for the legislators to act?

Viet Dinh: The decision itself does not speak to the authority of the legislature, other than that contained in the U.S. Constitution. The opinion does note that in interpreting the law, the Florida Supreme Court would be wise to take into account the legislature's wish to establish the rules of the game prior to November 7.

Question from Dazed: If the Seminole County case is successful for Gore, what happens? Does this render the Supreme Court’s involvement moot? Does this overturn the certified results?

Viet Dinh: If the Seminole County case is found in favor of Gore and the number of votes, in that case, would overcome the Bush lead of 900 odd votes on November 14, then that case would make this decision basically meaningless. I do not know whether the case would be technically moot because it will have legal effect still, even though, as a practical matter, the numbers involved would be overwhelmed by the numbers involved in Seminole County.

Question from Tennoheika: Will the U.S. Supreme Court automatically review the Florida Supreme Court's actions?

Viet Dinh: No. The Supreme Court review will not be automatic. After the Supreme Court of Florida issues its new opinion, then either party will have an opportunity to file a new petition for review which the Supreme Court may take or reject, depending on the legal arguments and factual circumstances presented at that time.

Question from Goalpostwideleft: If the Supreme Court trumps the state Supreme Court, why didn't the Supreme Court of the U.S. issue a verdict that would have resolved the question of the extension of time to count ballots, whether or not all ballots would be counted manually?

Viet Dinh: That is a very good question. However, in this case, the U. S. Supreme Court, while recognizing that it has the power to review the substantial federal questions presented, was unclear as to the precise grounds for the Florida Supreme Court’s decision. Therefore, the U.S. Supreme Court wisely vacated the Florida Supreme Court decision and asked that court to make clear what it decided and, more importantly, on what basis those decisions were made. Otherwise, the U.S. Supreme Court is unable to decide the questions presented in this case.

Question from Todd: Is there an end to this legal wrangling before the 12th?

Viet Dinh: Most lawyers can find ambiguity in a "no smoking" sign. That is why the answer to your question depends not on law, but on judgment. That is why I feel utterly unqualified to make a prediction on that question!

Chat Moderator: What should we be looking for from Judge Sauls and from the Florida Supreme Court over the next few hours or days?

Viet Dinh: I think the Florida Supreme Court will issue a new opinion that will, at the least, be more clear in its decision-making process and, perhaps, more limited in the scope of its substantive decision. If the court persists in the November 26 revised deadline, then it would have no effect on Judge Sauls' proceedings.

We can, therefore, expect Judge Sauls to issue his opinion one way or another soon after the Florida Supreme Court rules. Any decision of the Florida Supreme Court, however, is subject to further petitions for review by the U.S. Supreme Court. So we are in a state of true flux for the next several hours, if not days.

Chat Moderator: Thank you for joining us today, Viet Dinh.

Viet Dinh: Thank you very much. You all take care.

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