November 16, 2000

November 16, 2000 | Commentary on Legal Issues

The Legal Endgame: The Result is Getting Clearer

With all the legal maneuverings over chad-whacking and recounts in Florida, it is easy to lose sight of what may well be the ultimate legal endgame in Congress if one candidate does not concede the election in the next few weeks. Unfortunately for Gore, there is controlling legal authority on what Congress's powers are with respect to a questionable state certification and how Congress would proceed to select the appropriate group of electors. This explains Gore's growing desperation to convince Bush to agree to a subjective hand recount in the entire state of Florida. He knows he has nothing to lose and that the ultimate endgame is beyond his control.

If Gore is the certified winner in Florida on Saturday, Bush will concede the election (assuming he does not have a strong case to contest the election in several other states). Despite the fact that the networks' early call of Florida for Gore depressed as many as 10,000 Bush votes in the Florida panhandle, Bush understands that there are no remedies for certain wrongs like "ballot confusion" or network malfeasance. Thus, the only possible situation in which the Congress could play a decisive role in the election is if Bush is the certified winner of Florida on Saturday and Gore selfishly refuses to concede.

If the electors for Bush conclude in good faith that he won the election based on the certification and other objective criteria, they should meet and vote on December 18 no matter what court order or other ruling might then be in place. Alternatively, if they fail to meet on that day, the federal statute that governs the selection of electors provides that "the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct." FYI, Republicans control both chambers of the Florida legislature by a wide margin.

In either case, Congress has the final authority to count the Bush electors regardless of what any court might later rule and regardless of whether electors for Gore also meet and send their votes to Congress. Congress's power to decide the legitimate count is based in the Constitution, but some of the procedures that would govern its deliberations date back to an 1887 law passed in the wake of the Tilden/Hayes election of 1876.

Pursuant to the Constitution, the vice president - as President of the Senate - shall preside over a joint session of the new Congress on January 6 to count the electoral votes. What an interesting spectacle it will be if Gore and Lieberman participate without conceding the election. Republicans will control the House of Representatives with about a five-vote margin. The U.S. Senate is nervously watching the Gorton/Cantwell returns, but it looks like Gorton's 8,300 vote advantage is unlikely to evaporate. If Gorton wins and the Senate refuses to or delays seating Mrs. Carnahan (as its precedents seem to require), that will give the Republicans a 51-48 margin.

If there is any dispute about which slate of Florida electors to count, the two Houses of Congress must separate and decide the disputed issue. Each House is limited by statute to two hours of debate on the question. No member may speak more than once or for more than five minutes. No other business may be conducted. The Houses must meet until they agree on the outcome. After January 11, neither House may recess until the dispute is resolved. If no decision is reached by January 20, then the Speaker of the House becomes the Acting President until the matter is resolved.

You can forget fanciful scenarios in which the House decides who will be the president by state delegations and the Senate decides who will be the vice president. Those procedures are called into play only when the electors' true vote is not in doubt and they vote for more than two candidates, denying any one a simple majority. There is no reason to expect that result. Nor is there any reason to speculate as to what will happen if no electors from Florida meet. The best interpretation of the Constitution (as explained in this space) is that they must be appointed and must be counted in the final tally. And there is every reason to think that at least one group of electors will meet in Florida and that every such group will send on their purported certification to Congress.

Thus, if the Florida electoral votes are not conceded in the next few weeks, Congress will decide who gets them on or after January 6, and its decision is not reviewable by any court or any other body. Although many in Congress are certainly hoping that this cup will pass from them, they may have no way out but to choose one of the two slates of electors. Nor is this a situation like the Senate's vote to remove Clinton where a supermajority was necessary; a simple majority will do. I have every confidence that - in such a situation - Congress will do justice and ensure that the Florida voters' legitimate choice of president will be recognized.

Now you know why President-elect Bush is engaged in transition planning and Vice President Gore is engaged in desperate mischief. Perhaps Gore still thinks he can get Bush to concede through spin or litigation, but it will become increasingly difficult for him to maintain that fiction if the certification on Saturday goes against him. So if the current show angers or frustrates you, just keep in mind that the ultimate legal endgame has rules that we can all live with.

Todd F. Gaziano is Senior Fellow in Legal Studies at The Heritage Foundation.

About the Author

Todd F. Gaziano Director, Center for Legal & Judicial Studies
Edwin Meese III Center for Legal and Judicial Studies

Originally published on National Review Online (11/16/00)