IT’S TIME TO TAKE OUR ELECTION BACK FROM LAWYERS AND JUDGES: FLORIDA’S LEGISLATURE SHOULD APPOINT THE ELECTORS - PART I

By VICTOR WILLIAMS

This is Part One of a two-part series on the election by Professor Williams. Part Two, which will appear separately in Writ, will consider the Framers' reasons for choosing the current electoral college system, and predict what may result if the election goes to the House of Representatives.. -- Ed.

There is an honorable end to this election debacle. The Florida legislature can fulfill its constitutional duty and directly appoint the presidential electors. Legislative appointment would provide an open, dignified, final solution to the election debacle.

This solution is now a real possibility. Florida House of Representatives Speaker Thomas Feeney is adamant that the Republican-controlled Florida legislature will "play a role if it becomes necessary." Feeney criticized the Florida Supreme Court for blocking Secretary of State Katherine Harris from certifying the final election results, describing the ruling as both "premature" and "regrettable," and he accurately and courageously argued that with respect to the electors, the Florida "legislature has direct authority and power granted to it under the U.S. Constitution that no state court could interfere with, negate or abrogate."

Unfair Legal Tactics Call for a Legislative Solution

A legislative solution is needed because court tactics are escalating, and becoming increasingly divisive. Al Gore's win-at-any-cost campaign crossed the Rubicon when it successfully launched a calculated, systematic attack on servicemembers' right to vote, as set out in the infamous five-page memo listing every possible technicality by which military ballots could be knocked out.

Never mind that the Gore campaign encouraged the filing of overseas ballots from those non-military citizens who choose to live in foreign lands. When it became clear that the ex pats were not coming through, the Gore lawyers did an about-face to challenge the military overseas ballots.

The Florida Supreme Court's approval of manual recount results is being taken tonight to the U.S. Supreme Court by Governor Bush, and well it should be. The deadline/certification issue was a simple matter, but the Florida justices, all Democrats, rewrote the law to give just enough time for the canvassing boards in heavily Democrat counties to do their worst. If the nation's highest court does not grant Mr. Bush relief from the Tallahassee Justices' home cooking, the campaign will likely renew the parallel equal protection arguments against hand counts before the en banc bench of the U.S. Court of Appeals' Eleventh Circuit in Atlanta. And still other litigation battles are catching fire in both state and federal courts.

Flawed Hand Counts Also Suggest the Legislature Should Act

Meanwhile, Broward, Palm Beach, and perhaps Miami-Dade board officials capriciously divine the "intent" of the voter from a penumbra of a dimpled chad, which need not even be partially punctured to be counted. A ballot with any chad configuration (hanging, swinging, pregnant, tri, or dimpled) is an invalid, spoiled ballot. Just read the Palm Beach ballot instructions, which were mailed to every registered voter before the election and are still available on the county's website: "After voting, check your ballot cards to be sure your voting selections are cleanly punched and that there are no chips left hanging on the back of the card."

Under Florida law, recounts are permitted to ensure that machine tabulations "correctly reflect the votes cast." A partially-punched ballot, like a double-punched ballot or a virgin ballot, is not a "vote cast." A dimpled-chad ballot does not register by a machine count, and it should not register with a hand count. As commentator Christopher Mathews analogized, it is very much like a "checked-swing" in baseball; it just does not count.

By demanding this ridiculous, partisan hand-counting of ballot cards (that were designed to be read by machines), Gore seeks to overturn the results of a national election that he clearly has lost - even by changing the rules after the game is over, if necessary. If the Vice-President is not assured of getting the White House keys that he so desperately wants, he appears willing to do serious harm to the nation's electoral process. What are other nations, and the domestic and international markets, to think of an Administration whose Vice-President implements a scorched earth post-election strategy solely to fulfill his own vaulting ambition?

It is time for Florida legislature to exercise its constitutional authority to directly appoint the electors - a move that will end all litigation and moot most political wrangling.

The Constitution Authorizes the Legislature's Choice of Electors

No American citizen actually voted for any presidential candidate on Tuesday, November 7, 2000. At most, citizens voted only for a slate of party-loyal electors who have pledged to vote for a given presidential ticket in the multi-state, state-based electoral college. Moreover, this election occurred only because the state legislatures allowed it, and can be ignored if the state legislatures so choose.

Article II grants state legislatures - not citizens - the exclusive power to select electors by any manner that they choose. (The only constitutional restriction on the state legislature's discretion is that the electors chosen may not be members of Congress or hold a federal office of trust or profit.) Thus, any state's legislature could have cancelled the results of the November general election in its state, or even now could cancel the results of the election just held, and pick the electors itself.

As an example of the state legislatures' discretion in this area, consider the disparate manners in which different states tally the vote to appoint electors. Presently, some states apportion their electoral votes by congressional district. Most states, however, apportion elections on a winner-take-all system, awarding all of the electoral votes to the single candidate who receives the most popular votes - thus giving that candidate an inflated margin of victory.

The U.S. Supreme Court has held that states cannot use a winner-take-all system when it is state positions that are at issue. The rule for intrastate voting processes is one person, one vote. (Thus, as Governor Bush's lawyers have argued, tactics like the Gore campaign's that attempt to count, or recount, some votes but not others in Florida's election are invalid). But in Presidential elections, it is within states' wide discretion to use a winner-take-all system, even though it discounts the votes of voters who support the losing candidate in a winner-take-all state.

Since the Constitution's founding, it has remained a quadrennial possibility that the popular vote winner might well lose the electoral vote count and, thus, the election. Yet there have been hundreds of legislative proposals for abolishing the electoral college through constitutional amendment, and they have all failed.

Indeed, as recently as this October, the U.S. Court of Appeals for the First Circuit reversed the ruling of a federal trial judge granting presidential voting rights to American citizens living in Puerto Rico, and ordering Congress to count the eight new judge-made electoral votes. In that appeal -- Igartua de la Rosa v. United States -- although the First Circuit expressed sympathy for the American citizens' franchise equality arguments, it nevertheless held that under our Constitution, state legislatures, not individual citizens, appoint electors.

A Federal Statute Also Gives the Florida Legislature Authority to Appoint Electors

Finally, a federal statute also provides separate, independent authority for state legislatures' discretion to appoint electors. According to the statute, "[w]henever 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."

That "day prescribed by law" is now well past. One might misread the "day prescribed" as December 18, 2000, the date on which the presidential electors meet in their state capitols, or December 12, 2000, the federal statutory deadline for certifying electors. But the very same well-known statute, which delineates the national election day as the first Tuesday after the first Monday, makes clear that the "day prescribed" during this election cycle was election day: November 7, 2000.

One might also argue that this election's "choice" has already been made, but will only be revealed after a protracted hand recount. But the better, more reasoned analysis accepts that the choice was not known until the deadline for receipt of absentee ballots and will not be effectuated until certification of the results by Secretary of State Katherine Harris.

Thus, the statute provides separate authority for the legislature to appoint electors. Even if the statute didn't exists, however, the Constitution, as argued above, would yield the same result. Moreover, because the source of the Florida legislature's authority is ultimately constitutional, its slate of electors would be final and nonreviewable. (Florida's votes, like the electoral votes of any state, could, however, be challenged in the joint session of Congress.)

In short, until and unless the Constitution is amended to allow for direct elections, the state legislatures control absolutely the elector appointment process.

Read Part II of Professor Williams' article.


Victor Williams, a FindLaw contributor, teaches law at the Catholic University's School of Law in Washington,D.C., and is an adjunct professor at the University of Virginia's Northern Campus. He holds a J.D. from the University of California–Hastings and LL.M. from the Columbia University Law School.

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