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
"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
Lawyers for Gore counter that Florida's high court merely
resolved an apparent contradiction in state law through long-
established means of statutory interpretation. …