- The Washington Times - Tuesday, November 14, 2000

The litigating maneuvers over Florida's disputed 25 electoral votes has begun, but Congress enjoys the final say if it chooses to exercise its constitutional powers. At present, Gore champions have enlisted state courts, and the Bush advocates chose a federal judicial forum to advance their respective presidential crusades. The jockeying proves the prescience of Alexander de Tocqueville's writing more than 150 years ago: Every important political question in the United States ultimately is transformed into a legal dispute.

Untangling all the theories that could lead to a final electoral vote decision in Florida with a bow to the shortness of life is an awesome task. But even a flawed attempt may diminish the confusion.

The Constitution endows Congress with plenary power over the counting of the forthcoming electoral votes on Jan. 6. In ex parte Yarborough (1890), the Supreme Court sustained the authority of Congress to punish violence or corruption in the balloting for presidential electors. Associate Justice Samuel Miller explained: "If this [federal] government is anything more than a mere aggregation of delegated agents of other states and governments, each of which is superior to the general government, it must have the power to protect elections on which its existence depends from violence and corruption."

The 12th Amendment to the Constitution entrusts to the sitting president of the Senate, i.e., the vice president of the United States, responsibility for counting electoral votes transmitted by the various states and the District of Columbia. The counting is before the Senate and House of Representatives.

In 1876, Florida, Louisiana and South Carolina sent double sets of Electoral College returns to Congress in a hotly contested presidential race between Republican Rutherford B. Hayes and Democrat Samuel J. Tilden. Hayes would squeak by Tilden 185-184 if the credentials of all the Republican electors were recognized. Both electoral slates were challenged before a Democrat House and a Republican Senate. To resolve the impasse, Congress enacted an Electoral Commission law that created a 15-member tribunal to decide the presidential dispute with finality, unless both chambers objected to its decision. Commission members included five justices of the Supreme Court of the United States, five members of the House and five Senators. It voted 8-7 in every case in favor of the Hayes electors, and the Republican Senate declined to join the Democratic House in rejecting the commission's rulings. Hayes became the nation's 19th president.

In 1887, Congress enacted the Electoral Count Act to achieve a more orderly disposition of disputed electoral votes. At present, federal law prescribes as follows:

All states must appoint presidential electors on the Tuesday next after the first Monday in November, which was Nov. 7 for the Gore-Bush contest. If a state fails that deadline, then electors may be appointed on a subsequent day in such manner as the state legislature may prescribe. It would seem, therefore, that the Florida legislature might conclude that the presidential polling debacle of Nov. 7 failed to choose electors and thus enact a law stipulating a presidential revote in all or part of the state. Such a law, however, might be vetoed by Republican Gov. Jeb Bush. Even if enacted, moreover, federal law would require that the new polling be definitive by Dec. 18, the day designated by Congress for the electors of each state to meet and give their votes.

Suppose Florida's legislature does nothing and leaves it to state courts to resolve the electoral mess. Congress has mandated in such circumstances that the final determination of a state's highest court shall be "conclusive," but only if made six days before the prescribed meeting of electors, or Dec. 12. It is dubious whether the Florida Supreme Court could act with such dispatch on a host of predictable appeals from trial judge electoral rulings. Under federal law, moreover, the Florida legislature could trump the state judiciary and simply pronounce in favor of the Gore or Bush electors by law, which again would confront a Jeb Bush veto.

Now suppose amidst the Floridian electoral fog, Jeb Bush determines that his brother has prevailed under state law. Federal law directs the executive of each state to certify the credentials of presidential electors to Congress. Suppose that George W. Bush's electors are so certified by the candidate's brother. The electors would not be shielded from challenge when electoral votes are counted on Jan. 6. Congress has provided for objections if joined by at least one senator and one House member. If both chambers concurrently conclude that a questioned gubernatorial certification was unlawful under state law or that the electoral votes were not "regularly given," then the electoral votes may be rejected. That would be improbable, of course, if the House and Senate remain under Republican control.

But consider that Jeb Bush might be in violation of Florida's conflict-of-interest laws if he made a questionable certification in favor of his brother. And further consider that Senate President Al Gore (whose term continues until Jan. 20) and Connecticut Sen. and vice-presidential aspirant Joseph Lieberman (whose new Senate term begins Jan. 4) might violate Senate rules if they voted on the presidential elector dispute in which both have a personal interest, a matter of substantial import if the Senate is divided 50-50 between Republicans and Democrats in the 107th Congress.

If a state submits more than one electoral return to Congress, then the House and Senate acting concurrently are directed to apply state law to determine which set of electors speak with constitutional legitimacy. To explore what happens in such an eventuality would tax even the most patient and discerning reader's cerebral faculties, and thus will be left to the imagination. What can be said succinctly is that federal court challenges to whatever Congress decides would be defeated under the "political question" doctrine of the Supreme Court.

Finally, Congress can amend the 1887 law at any time to provide for a specific disposition of Florida's presidential elector disarray, subject to President Clinton's veto.

All of these legal headaches will be mooted if Florida itself definitively decides in a timely fashion between Mr. Gore and Mr. Bush in accord with evenhandedly applied state law. That is a consummation devoutly to be wished, to borrow from Hamlet. No matter what eventuates, however, Congress should consider mandating uniform nationwide standards for vote recounts, challenges or new balloting in presidential elections. Does it make any sense, for instance, for voter confusion to trigger a second chance at voting in one state but not in another?

Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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