Michael Gerhardt, Professor of Law at William and Mary Law School, is here to answer the many legal and constitutional questions the people of America are asking today. He's an expert on Congress and the Presidency and has a forthcoming book on the subject. He has written "The Federal Impeachment Process: A Constitutional and Historical Analysis" and "The Federal Appointments Process."
Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.
Rockville, MD: Is the design of the ballot in question in Florida actually illegal?
Michael Gerhardt: That's a great question and I'm not sure of the answer. The Gore campaign is arguing that the ballot design is illegal because they understand Florida law to require all places for punching on a ballot be placed to the right of the candidate's name. It is telling thus far that no Republicans are contesting that construction.
Dallas Texas: Is there a legal basis/precedent for a court granting another vote either in specified counties or statewide in Florida?
Michael Gerhardt: There are rare cases. One relatively recent example involves Bill Delahunt from Massachusetts who is now in the Congress. Delahunt eventually won the election as a result of his obtaining a revote based on similar circumstances. That's the closest case about which I know, but of course took place in a different jurisdiction. I know of no cases in Florida like this.
Atlanta, GA: Given that both democrats and republicans approved the ballots, does this affect the legal actions pending?
Michael Gerhardt: It is likely that their pre-approval will have some effect, but if the ballot is illegal, then their pre-approval is meaningless. It is likely the pre-approval will be most relevant as a defense against claims of confusion.
Jersey City, NJ: Are you aware of any law in Florida or in the county in question which allows for the voting to take place again?
Michael Gerhardt: No and it doesn't have to be. The question that any court might have to deal with is the appropriate remedy for any illegal irregularities.
Woodbridge, VA: Mr. Gerhardt,
What were the primary reasons for the creation of the electoral system by our founding fathers?
Michael Gerhardt: That's the question of the day. There were a couple reasons, neither of which are viable or defensible today. First, the framers distrusted popular majorities. So they created a filter through which votes for the presidency would have to go. The end result would reflect the opinions of educated electors. Second, the Electorl College was designed in the manner in which it is in order to protect slavery. The idea was was that southern would have a safeguard against more populous northern states in choosing a president. The problem for the southern states was that much of their population consisted of slaves who could not vote and were not fully counted in their population total. The Electoral College allows states to operate ironically on a more equal footing in the choice of a president.
Greenbelt, MD: Has there ever been a revote in any federal election?
Michael Gerhardt: Yes, but the revote is typically confined to particular precincts and not allowed across the board. So in this case, it wuld not be unprecedented for a revote to occur, for example, in one county.
Duxbury, MA: A lot of talk about demanding yet another recount (this time hand counted in all four Florida counties) who is this demand made to and who makes the call yes or no?
Michael Gerhardt: The demand is made to election commission officials in Florida, and the call will be made initially by those officials, subject to court challenge.
Silver Spring MD: Won't we have to re-count other states if we do such a minute scrutiny of Florida? Why are we accepting that all the others are valid?
Michael Gerhardt: Well that's a good and tough question. The answer depends on whether one candidate or the other wants to challenge the results in another area. For example, the Bush campaign is now threatening to challenge the votes in Wisconsin and New Mexico.
Atlanta, GA: If we're in litigation and have no President on Jan. 20, 2001, what happens?
Michael Gerhardt: Well, the odds are we will have a president. The challenges , if they arise, will be processed expeditiously. If for some bizarre reason we do not have a new president on Inauguration Day, then the presidential succession law kicks in and you simply follow its hierarchy.
Somewhere, USA: Under Florida laws about ballot design, what is more important: the fact that some punch holes were on the LEFT of the ballot paper, not the RIGHT, or the fact that nobody complained about the design before the election?
Michael Gerhardt: The fact that the punch holes were on the left instead of the right. If something is illegal, it is illegal. The critical thing to keep in mind is for whose benefit the law exists; it exists not for Gore's benefit, not for Bush's benefit, not for either party's benefit, but for the benefit of the people of Palm Beach County.
Bowling Green, OH: I've heard Janet Reno comment that these issues (issues of ballot design for instance) are state issues. Does that mean there is little possibility of federal intervention or for that matter, high court intervention?
Michael Gerhardt: There is little probability of federal intervention for the reason you cite, but in all likelihood any court challenge will be resolved at the Supreme Court level.
Torrance, CA: How long can the vote be delayed to count the overseas ballots?
Michael Gerhardt: My guess is it will not take much time at all to count those ballots. That delay should be minimal.
Charlottesville, VA: What is the likelihood the Supreme Court will be forced to intervene?
Michael Gerhardt: That's a good question because Supreme Court review depends on the presence of a federal question and the lawyers for the challengers will have to pose a credible federal question in their lawsuit in order to ensure ultimate Supreme Court review. Without a federal question, the final court to consider this, assuming this begins in state court, is the Florida Supreme Court.
Reston, Virginia: Is it unusual for there to be such a large change in the totals after a recount, that is, after this Fla recount, Bush will have lost over 1000 votes. Can we assume that every state is off by a thousand or more. That could seriously affect the popular vote tally, couldn't it?
Michael Gerhardt: Yes, it could. That's another good reason for improving voting technology.
Washington DC: There have been allegations that some registered voters who showed up at proper polling places during voting hours were turned away due to a shortage of ballots. They may have an evidentiary problem here, but assuming the claim can be proved, doesn't there have to be some redress for deprivation of their constitutional right to vote?
Michael Gerhardt: Yes, that's a foundation for a federal claim. Of course, one thing to consider is the basis for the refusal. If it can be shown credibly that Democrats or protected minorities were turned away because they were Democrats or protected minorities, then you have a legitimate civil rights grievance.
Baltimore, MD: Would a revote typically limited to those who voted on election day or would it be open to any registered voter?
Michael Gerhardt: Only the former. It would be unfair and illegal to allow new voters to intervene. The only question is whether people who voted before could vote again.
Valdez, AK: Let's talk theory. Currently there are 11 Electoral College votes in Oregon and 25 in Florida. If Gore were to win Oregon and Bush win Florida, by my count it would be a tie. Who would break such a tie? The Chief Justice?
Michael Gerhardt: If your numbers are right, and I'm not sure if they are, then the election goes to the House of Representatives. Then the new House will decide. That's what happened in 1824 and in 1876.
Hanover, NH: Who pays for all of this? If the recount goes in favor of the republicans, do the democrats have to pick up the bill?
Michael Gerhardt: No. The people of Florida will likely have to pay the costs incurred for conducting a new election.
Washington, DC: My name is J. Carlos Jiacinto If bush does win in the end, won't he be viewed as a minority president. Won't the Democrats be so bitter that they won't compromise on any legislation
Michael Gerhardt: There is little question that whoever wins will be damaged politically. If it's Bush, it will be a real test of his campaign pledge to be a uniter rather than a divider. But I do not think he is off to a great start. His pronouncements regarding his transition are hardly discreet and he has not shown much regard for the popular vote that Gore has won. He will have to make amends in many different ways if he becomes president.
Washington DC: You said that if the election is not settled on Jan 20, that: "then the presidential succession law kicks in and you simply follow its hierarchy"
Does that mean that the new President would be the Speaker of the House? And would person be the "temporary President" until the issue was settled, or would that be our President for the next 4 years?
Michael Gerhardt: It would be a temporary president until the 2000 election is fully resolved. But keep in mind we have never, even in the worst of time, been unable to resolve these disputes in a timely fashion.
McLean, VA: Is the Florida election process solely under the jurisdiction of Florida?
Michael Gerhardt: For the most part, yes. The federal government, particularly the Justice Department, only has a role if federal civil rights violations occurred. I'm not aware of any credible allegations yet that such violations occurrerd.
Arlington, VA: Please comment on the question of some polling places in the U.S. remaining open beyond the legal time period.
Michael Gerhardt: It is possible to hold polling places open beyond their formal limits if proper authorities allow them to be held open. My understanding is Gov. Jeb Bush did so, while Missouri officials were unable to do so.
Paris, France: (Rephrased Question Submitted Earlier) Is it true that electors are not bound in half the states? When have electors not voted for the candidate who won their state?
Michael Gerhardt: It is true that in half of the states electors are not bound, but it is rare for electors to vote for people contrary to those who won in their respective states.
Arlington, VA: Wait - in response to Atlanta, you said the presidential succesion law would kick in on Inauguration Day... Do you mean the presidency would fall to Al Gore? (This is starting to sound like that song "I'm my own grandpa!")
Michael Gerhardt: Great question. In all likelihood it could, except Gore's term as Vice President expires on that day, so that won't happen.
Nottingham, UK: Is there any movement towards abandoning the current, rather arcane electoral system in favour of the UK's first -past -the -post or as is gaining favour here : proportional representation
Michael Gerhardt: The only possible movement that this election might intensify is against the Electoral College. Otherwise we either will retain the status quo or have popular voting for the president.
Philadelphia: Is it unusual for 19,000 ballots in one county to be tossed? And what do you think is behind the "gains" the Gore camp has experienced today?
Michael Gerhardt: It is quite unusual for that many ballots to be tossed. My guess is that some of Gore's concerns appear to have been justified.
san antonio texas: Why is it not possible to redo the enitre election in Fl.?
Michael Gerhardt: The short answer is that no one disputes most of the election that took place in Florida. Only the disputed areas are our concerns.
Bozeman, Montana: Both candidates have sent a former Secretary of state to be their representative in Florida. What are the implicantions?
Michael Gerhardt: I think each side picked the most readily available statesman in their respective party. It turned out that it was a former Secretary of State for each of them. I think historically we have viewed secretaries of state as being above most parties and politics.
Silver Spring MD: If Bush wins the recount and Gore conceeds--could private parties (voters) sue for a revote and have the result overturn?
Michael Gerhardt: No. Gore's concession makes moot any contests. One reason for his delaying a concession is out of respect for the upset voters in Palm Beach County and elsewhere.
Yellow Springs, OH: Mr. Gerhart ... you mentioned an appropriate legal remedy if the people of Palm Beach county and others with this problem, challenge the vote. What would YOU request as an apporpriate remedy, if you were defending these people and it were shown that there were both a very high number of invalid ballots and a statistically abnormal number of votes for Buchanan. Also, looking at WP's visual of the actual ballot, were there any other anomalies in the returns. Meaning, other candidates pulling down more votes than they would themselves conclude they should
Michael Gerhardt: To begin with, the answer is no other candidates had unexpected gains. Otherwise the remedy that is available has to be derived from state law. So, the standards that Forida law provides for redoing elections are controlling. The only remedies that I can conceive are those made available by Florida law.
Spartanburg SC: I think the electoral system is good. The only change I think we need is that electors should be bound to vote for the canidate they represented on the ballot. Could a federal law change this or would it take a consitiutional ammendment?
Michael Gerhardt: No. This a matter for state law. State laws control whether electors are bound.
DC: couldn't we just vote on the Internet next time? It seems to work for everything else. Or does that violate the constitution?
Michael Gerhardt: It doesn't violate the Constitution. The internet is a possibility--for example, Arizona tried to use it during the primaries. The critical issue with respect to the internet is the possibility of fraud, that it hardly seems more problematic than the present system in Florida.
Blacksburg, VA: How exactly are the members of the Electoral College are chosen?
Michael Gerhardt: The Electors are chosen by the ballots cast for president.
New York, NY: What is the legal status of a candidate's conceding the race?
Michael Gerhardt: It brings final resolution to any disputes regarding that election.
Washington, DC: Why are we still using such antiquated methods of voting? The punchcards in DC were nearly as confusing as those in Florida!
Michael Gerhardt: There were confusing, antiquated ballots all over the country. There is no question you identify one of the most important areas for reform that will have to be addressed after this election.
Boston, MA: In light of your earlier explanation of the invention of the electoral system, do you think the system serves any purpose today, or is it merely archaic?
Michael Gerhardt: Again, a great question. For some people (right now it appears George W. Bush) it can be viewed as serving an important purpose. Their view is that the Electoral College allows for a greater degree of input in the choice of a president by smaller and more states than otherwise would occur. The contrary view is that popular voting for the president is closer to our ideal of democracy, an would probably still require candidates to criss-cross the country.
Glasgow, Scotland:
In response to the question of registered voters being disallowed to vote.
You said that there would be a legitimate civil rights grievance.
What would occur if this were the case? And has a situation like this ever occurred?
Michael Gerhardt: Sure, there have been many instances in our past in which registered voters were denied access to polls for improper reasons. The most flagrant instances involved racial discrimination. It is not clear that racial discrimination impeded some voting in this election, but if it did, there's no question that federal civil rights laws are triggered.
Miami, Florida: If the electoral college votes for the next president, won't it be Bush since there are more Republicans?
Michael Gerhardt: Well, if Bush is declared the winner in Florida, then there would be more electors committed to Bush.
Philadelphia PA: You say that a popular vote would "would probably still require candidates to criss-cross the country," but they would ignore farmers and concentrate of the cities - where the votes are. Little states would get short shrift, too.
Michael Gerhardt: You are probably right that a popular election of president would likely produce that problem. But it is also possible that presidential candidates will want to visit more places, even arguably less populated ones, to look accessible and as if they are trying to win the votes of all of the people.
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