Greta Van Susteren explains legal battle in Florida Supreme Court

Greta Van Susteren

CNN Legal Analyst Greta Van Susteren is in Tallahassee, Florida following legal developments related to the November presidential election. The questions she answered were posed by CNN.com editors and readers who submitted their questions to Ask Greta.

Q: What will the Gore side try to establish in Monday's Florida Supreme Court hearing? How will Bush's attorneys respond?
CNN.com Editor

Van Susteren: The Gore position is that manual hand counts are lawful in this state, they are lawful in this instance and the Secretary of State was wrong and abused her discretion when she said she would not consider them.

The Republicans say manual recounts are lawful, but not in this instance. This was not equipment failure this was simply an allegation of a tabulation problem. Even if manual recounts are permissible for a tabulation error, and not just a machine error, then in this particular case the Secretary of State was right to say she would not accept hand count tallies after Tuesday at 5 p.m. because the statutes says the canvassing board shall turn in their figures by 5 p.m. on Tuesday, so she's just doing her job.

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The Democrats then respond by saying the legislature never would have created such a hard and fast deadline because you can't complete manual recounts within seven days in your big counties. And they'll also say the Secretary of State is one of the reasons they were unable to do their work because she was standing in the way creating hurdles for them. And, of course, the Secretary of State denies this.

Q: Is the Florida Supreme Court limited to interpreting the law or does it the have the freedom to create law from the bench to resolve the conflict between the deadline law and the recount law?
Jim Price
Charleston, South Carolina

Van Susteren: The job of the justices is not to make law. It's to interpret the law, and the first thing they do is look at the plain language in the law. If there is some problem with the plain language, it's ambiguous, they then look behind the statute and look at the legislative intent giving rise to the statute and that is sort of the standard way courts are to look at the law. When you have constitutional issues that get folded into it like the right to vote it sometimes makes it more difficult and people are varied. They're doing what you might think is interpreting the Constitution, and what someone else might think is adding to or making up or writing the Constitution. That's when you hear people getting into battles over statutory construction or interpretation versus making law.

Q: Why doesn't the Bush legal team somehow leave the door open for hand recounts in all Florida counties in case they lose their plea to stop the manual counting?
Rick Phillips
Fort Hamilton, New York

Van Susteren: Well that's a political question more than a legal question and I suspect the answer, and I don't know for sure, is that they didn't anticipate that we would get to the posture of the case as we are now. And it's theoretically possible that the Florida Supreme Court could order a recount, manual recount, for the entire state. It's unlikely, but it's theoretically possible.

Q:Greta, could you clarify who the parties are before the Florida Supreme Court? I keep hearing reporters and newcasters say it is Gore v. Bush. Isn't it actually Gore v. the State of Florida or the Secretary of State of the State of Florida?
(no name given)

Van Susteren: It's really the County Canvassing Board versus the Secretary of State but it includes Bush and Gore because they've filed motions to intervene, which we call "me too motions" in terms of them saying "Look this is an important issue to me so I should be allowed to participate." The court did allow them to participate so Bush and Gore are in this as participants, the court having granted a motion to intervene, and that is a rather standard and routine thing.

Q: What would happen if Al Gore concedes? Would he give up on his claim on the presidency?
Georgene Sloat
Whitney, Texas

Van Susteren: That would probably be the end of it. Maybe the Democratic Party in the state of Florida would pursue it, but if they've lost their candidate it would seem rather silly or frivolous.