Florida Legislature May Decide Presidency ; Lawyers Ask US Supreme Court to Turn Battle for Electors over to State's Lawmakers

Article excerpt

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. …


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