Florida Legislature may decide presidency
Lawyers ask US Supreme Court to turn battle for electors over to state's lawmakers.
MIAMI — Of all the formidable challenges faced by Al Gore in Florida, the most daunting - and potentially most devastating - is the prospect that the Republican-dominated state Legislature in Tallahassee will simply select its own slate of delegates to the Electoral College.
It is an exclusive power granted to state lawmakers under both federal law and the US Constitution. And if done properly, no judge in the land can question it.
Such action would guarantee a victory for George W. Bush, even if extensive post-election investigations and court battles reveal that Mr. Gore received more votes in Florida.
But it would also stir up a hornet's nest of criticism in the wake of one of the closest and hardest-fought presidential elections in US history.
This week a special committee of Florida lawmakers is meeting in Tallahassee to consider the Legislature's options. And the message they are hearing from conservative constitutional-law scholars is that they should prepare now to act in the event the flood of litigation in Florida is not conclusively resolved within the next two weeks.
"In the end, my recommendation is like the Boy Scouts - be prepared," says Einer Elhauge, a Harvard law professor retained by Republicans in the Florida House of Representatives.
Federal law requires that presidential electors be designated by Dec. 12 in advance of the Dec. 18 Electoral College vote.
Presidents are not selected directly by the people. Instead, presidential candidates compete for Electoral College votes by winning the popular vote in each state. Both candidates need Florida's 25 electoral votes to amass the 270 Electoral College votes required to win the presidency.
But two key issues could cloud the outcome in Florida and potentially bar any of the 25 electors from participating in the Electoral College vote.
First, the results of any election must be conclusive by Dec. 12. That means all litigation raising doubts about who won the election must be resolved within the next two weeks.
Gotta stick to the rules
Second, the election must have been conducted and governed by laws enacted prior to election day. In other words, any effort to change the rules of the election after the votes were cast might disqualify Florida from participating in the Electoral College.
It is this second issue that is at the heart of the dispute to be argued tomorrow before the US Supreme Court in Washington.
Lawyers for Bush say the Florida Supreme Court violated the US Constitution and federal law when it changed the rules of the election by forcing the secretary of state to ignore the deadline set by state law and accept late submissions of votes recounted by hand.
Lawyers for Gore counter that Florida's high court merely resolved an apparent contradiction in state law through long-established means of statutory interpretation. They say election law is a matter that is best left to the states to resolve without federal interference.
A third position on the issue is presented by lawyers hired by Republican lawmakers in Florida who filed a friend-of-the-court brief.
They say the justices should rule that the issue of whether the election process in Florida deviated from existing law is a political matter that should be resolved by the state Legislature.
"A ruling [that the issue is outside any court's jurisdiction] would avoid involving this court in a political dispute best resolved by the political process," the brief says.
"What is at stake here is, after all, a political determination of who shall be the next president. The issue to be determined is uniquely political," the brief continues. "In this rare circumstance, it is entirely appropriate to have it resolved by the branches of government that are most responsive to the will of the people."
In effect, the lawyers are offering the Supreme Court a way to avoid directly overturning the Florida Supreme Court, while at the same time ruling in a way that would virtually guarantee Bush wins the White House.
Democratic lawmakers in Florida are angry about what they see as an attempt by the Republican majority to railroad through their pick for president.
'Let the law run its course'
They say state lawmakers are sent to Tallahassee to represent the interests of Floridians, not to vote in their place for president. The best way to resolve the election impasse is to allow the legal process to run its course.
Constitutional law experts hired by the Republicans say such an approach would be irresponsible. They say that to guarantee Florida's participation in the Electoral College vote, the Legislature should, at a minimum, pass a contingent resolution establishing that if litigation is continuing Dec. 12, the electors will be selected by the Legislature.
"You can take the power into your hands at any time," Roger Magnuson, a lawyer hired by Republican state senators, told the lawmakers. "It is a fundamental obligation of this House not to abdicate it by burying your head in the sand."
Terence Anderson, a law professor at the University of Miami, says the Legislature risks triggering enormous criticism if it is seen as undermining the ability of the courts to resolve the election dispute. But, he says, ultimately someone will be disappointed.
"No matter what you do, one side is going to have legitimate grounds for believing they were robbed of the presidency," Mr. Anderson says.
(c) Copyright 2000. The Christian Science Publishing Society