If courts can't decide, Fla. Legislature might

Under a federal statute, the Republican-controlled body has the power to decide who gets the state's electors.

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Republican lawmakers in Tallahassee, Fla., are preparing to swing into action to guarantee George W. Bush is the next president in the event that the Florida Supreme Court is unsuccessful in resolving the impasse over Florida's 2000 presidential election.

Under a little-known provision of federal law, if a state election is unable to determine which candidate should receive the state's crucial 25 Electoral College votes, the state legislature is granted the power to select the delegates.

That means that Florida's Republican-controlled House of Representatives and Senate would have the opportunity to handpick loyal Bush supporters as electors. The Florida delegation would push Mr. Bush's Electoral College total to 271, enough to win the presidency.

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John Thrasher (R), Speaker of Florida's House of Representatives, says lawmakers are researching the legal provision.

"We are very much aware of the statute," Mr. Thrasher says. "But I don't know if anyone is ready to pull the trigger."

The statute, 3 USC Section 2, says: "Whenever any state has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such state may direct."

The provision is evidence that an earlier generation of national lawmakers foresaw the kind of partisan, high-stakes tug of war that currently grips Florida and established a way to break the deadlock.

Analysts see it as an outcome of last resort that would outrage Democrats and prompt charges that a Bush presidency was the result of a legal loophole.

At the same time, Republicans are concerned that Florida's Supreme Court has the power, if it chooses to exercise it, to install Gore as the next president.

The Florida justices could do it by ruling that the results of hand recounts in three Democratic south Florida counties must be counted in the final presidential vote totals.

Which votes count?

But, in order to guarantee a substantial Gore margin, the Florida court would need to order county canvassing boards to adopt the most liberal vote-counting method possible - to count as valid votes ballot chads that show evidence of a dimple.

Voting-booth directions in Florida require voters to punch completely through the ballot chad. The instructions warn that votes will not be counted unless the chad is punctured.

But lawyers for Gore are arguing that Florida law has a long tradition of empowering elections officials to liberally construe a voter's intent by examining the ballot for any evidence of the voter's choice.

If the Supreme Court rules that dimpled ballots are a more precise measure of the will of Florida voters, it is an outcome that would anger many Republicans nationwide.

Some analysts say if the final determination of a winner is perceived as grossly unfair, Florida could end up with two different teams of electors - one for Gore and one for Bush.

It is a prospect that would guarantee more legal turmoil ahead. Such a development might favor Republicans, analysts say, by shifting the legal battlefield out of the state Supreme Court, with its seven Democrat-appointed justices, and into the federal appeals court in Atlanta, where Republican-appointed judges outnumber Democratic-appointed judges seven to five.

"Let's suppose the [Florida Supreme Court] gives it to Gore, and the Republican Legislature gives it to Bush, then that issue, arising under the federal statute, should be resolved in the federal courts," says John Baker, a constitutional law professor at Louisiana State University Law School in Baton Rouge.

Dec. 12 deadline

No matter how the dispute plays out, time is of the essence. During arguments at the Florida Supreme Court on Monday, Chief Justice Charles Wells repeatedly raised concerns about whether protracted election litigation might jeopardize the state's electoral votes.

The law requires that the Florida electors be designated by Dec. 12, in advance of the Electoral College meeting Dec. 18. It remains unclear how the tangle of legal issues and politics will sort itself out, if at all, by mid-December, a mere three weeks away.

In the meantime, lawsuits continue to pile up. Lawyers are appealing a decision earlier this week by a Palm Beach County judge that the US Constitution does not permit a revote in the county. That suit was filed on behalf of thousands of voters who were apparently so confused by the ballot that they voted for Pat Buchanan rather than Gore.

In Seminole County, a judge has refused to throw out a lawsuit challenging thousands of absentee Republican ballots. The lawsuit says the votes should be disqualified because the absentee-ballot applications were illegally prepared. If successful, the suit could disqualify enough Republican votes to swing the election to Gore.

And Florida Attorney General Bob Butterworth is trying to defuse controversy over scores of absentee ballots cast by American military personnel. Democratic lawyers succeeded in having the ballots disqualified because they were not postmarked outside the US.

Military officials say that such ballots often are not stamped overseas, but are nonetheless valid votes.

Mr. Butterworth has appealed to county canvassing boards to reconsider the military ballots.

(c) Copyright 2000. The Christian Science Publishing Society

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