November 20, 2000

November 20, 2000 | Commentary on

A Federal Solution? Congress Should Choose the Chief Executive

However the Florida Supreme Court rules on whether Secretary of State Harris must include results of hand recounts when she certifies the results of this year's election in Florida, odds are increasing that the identity of the next president will be decided not in Tallahassee, but in Washington. The decision will hinge on the meaning of the words "appointed elector" and who decides.

How the final determination of who won Florida gets here can follow any number of scenarios. The most obvious is what should ensue if neither Al Gore or George W. Bush receive a "majority" or 271 votes in the Electoral College. In that instance, the House of Representatives would decide - with each state's casting a single vote with 26 needed to win. What, though, would constitute a majority of "appointed electors"?

Law professors and journalists friendly to Al Gore insist that should the Florida results still be under litigation by the time the Electors convene, in the 49 other state capitals, Mr. Gore would be declared president. They reason that Florida's failure to participate would give Mr. Gore a "majority" of a reduced total.

Some have suggested this is what the Democrats hope to achieve by battling over the finest points of every finite and infinite detail in Florida election procedures. Such analysts believe that if they can delay "certification" of a Bush victory in Florida long enough, Congress, acting in its ministerial capacity, would declare Mr. Gore president after recording 260 electoral votes in his favor as opposed to Mr. Bush's 246.

They had better think again. There are signs that battalion of trial lawyers who have been attaching the vice president's recount effort have figured this out. One hint is the shaky precedent some cite for such a possible Gore victory, the lack of participation in the Electoral College by seceded states during Lincoln's re-election.

A more telling sign is the Gore campaign's "cherry picking" safari for additional votes in counties with an abundance of Democratic voters, with complaints about "butterfly" ballots providing the pretext for hand recounts.

Under Article II of the United States Constitution, "Each State shall appoint in such manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress. . . "

Florida's legislatures has proscribed that the secretary of state "certify" electors a week after an election. Its Supreme Court, has not found this law unconstitutional. Nor has it declared Mrs. Harris's decision to certify the tally "arbitrary." Yet, it has prevented her, thus far, from enforcing a law she has sworn to uphold.

Some have caught on the fact that the U.S. Code, Title 3, allows state legislatures to "appoint" a state's electors on a day other than Dec. 18, the day the Electoral College is to convene in the 50 state capitals, if no state has been certified by Dec. 12. Such would be the case if Florida's results remain tied up in court.

But there may be another way for the Florida legislature to take action, even should such a slate be declared on time. Suppose, in accordance with the U.S. Constitution, the legislature reassumed authority it delegated to the secretary of state and "appointed" 25 electors from the state of Florida.

They would, be taking this "extraordinary" and "emergency" in the absence of what most reasonable people would consider "definitive" and "conclusive" election results in Florida. Selective hand counts with no agreed upon methodology coupled with the suspicious tossing out of absentee ballots from military personnel would more than justify such an assertion.

Once involved, the heavily Republican legislature, acting in special session, could "appoint" Bush electors to cast Florida's votes in the Electoral College. However, it could just as easily take another path that would attract public support and bestow enhanced legitimacy to a process that has been badly tainted by elevated political rhetoric and personal invective.

That would be by "appointing" electors pledged neither to Bush or Gore, but to another person, retiring Sen. Connie Mack, for instance, or even deceased former Gov. Lawton Chiles?

Were it to proceed in this fashion, the legislature would sidestep having to choose between opinions rendered by the elected secretary of state and the elected Supreme Court. It would also ensure that the House of Representatives, as the Constitution prescribes, would decide who is to be the next president of the Unites States.

Should the Florida legislature choose not act, Congress still can, through its ministerial role in counting the electoral tally Jan. 5. It could choose among competing slates of Florida electors as it did, through a commission it appointed in 1876. It could also declare the Florida total "inconclusive" of the voters' intent. Consistent with the spirit of the 14th Amendment, it could then state that to declare a person president without the participation of Florida would be to disenfranchise a state of 14 million people in order to accommodate a handful of "confused" voters. That too would send the matter to the House of Representatives.

By acting in any of these ways, Congress would inject finality to an election much in dispute and would demonstrate again to the entire world the virtues of self-governance under a rule of law and a Constitution flexible enough to allow for any contingency - including the abuse of many of its provisions.

Alvin S. Felzenberg was a Visiting Fellow at The Heritage Foundation where he directs its Mandate for Leadership 2000 Project. He writes and lectures about the American presidency.

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Originally published in The Washington Times (11/20/00)