- The Washington Times - Wednesday, November 22, 2000

Florida legislators said yesterday they are considering using a federal law that would let them name the state's 25 electors if the presidential election stalemate is not resolved before the Dec. 12 deadline to certify them.

As the Republican-controlled Legislature was sworn in yesterday in the midst of the legal and political turmoil that has gripped the state since the Nov. 7 election, Republican leaders were studying a 1948 federal statute that permits them to appoint a slate of electors if one has not been chosen through the normal elections process.

"What is under consideration is calling a special session, appointing a set of electors prior to Dec. 12," said state Sen. Locke Burt, a member of the Senate Judiciary Committee with jurisdiction over the issue.

Mr. Locke said Republican lawmakers were concerned that if the dispute over who won the popular vote is not settled soon and no electors are chosen by the deadline to cast their vote in the Electoral College, it "will result in disenfranchising the 6 million people [in Florida] who did vote."

"I think the most important issue is that Florida's 25 votes are cast at the Electoral College. We will make sure that that happens," said Sen. John McKay.

But some election strategists feared that if the law is used, it would be challenged in the courts and perhaps result in Florida's electors being thrown out by the joint session of Congress that will be held to count the Electoral College votes on Jan. 6 and formally elect the next president.

The obscure statute has never been used or tested in the courts and there are questions about whether a legislature can supersede constitutional law, which gives the states' electorate the right to choose the candidate whose electors are then designated to vote for him.

But Florida House Speaker Tom Feeney has repeatedly threatened to use that authority if the electoral deadline draws near and the election dispute has not been settled.

"We're going to potentially ignore the state Supreme Court," Mr. Feeney said last week. "It is the state Legislature that determines the method of selecting electors."

Mr. Feeney has since softened his position somewhat on using the law, though his chief spokesman, Kim Stone, told The Washington Times yesterday that "we have sought outside legal advice to understand exactly what the law means."

"However, it's not something we are actively pursuing," she said.

"But if someone comes to us when the deadline is near and says this is what it comes down to, then we'd step up to the plate," she said.

Angered by the way its authority over election law is being challenged in a dozen or more lawsuits, the Legislature may be on a collision course with the state's highest court. The justices ruled against Secretary of State Katherine Harris last night, requiring her to accept amended returns as late as Monday 13 days past the Nov. 14 deadline established by Florida law.

In a strong show of support yesterday for her legal battle in the courts, a joint session of the Legislature gave Mrs. Harris a standing ovation.

After the state Supreme Court prevented Mrs. Harris from declaring Mr. Bush the winner, as she had planned to do last Saturday, Mr. Feeney issued a warning that raised the threat of the Legislature acting on its own.

"It is my intention to monitor the discord between the judicial and executive branches, and the Florida Legislature will play a role should it become necessary," he said in a statement.

The key provision in the law that Mr. Feeney and his colleagues may use says that when a state "has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such state may direct."

Under one interpretation, the law would be triggered by Florida Gov. Jeb Bush, who would have to declare that the state has been unable to choose its electors, thus forcing him to call a special legislative session to name them.

If the Legislature's Republicans took this action, there is no doubt that they would have the votes to name a slate of electors committed to the Texas governor. Republicans have a 25-15 majority in the Senate and a 77-43 majority in the House.

But such action, if it comes, could ignite a major conflict between the courts and the Legislature and, perhaps, with Congress, said Norman Ornstein, a presidential elections analyst at the American Enterprise Institute.

"The question becomes, if you do have electors selected because the court rules this is the election result or issues rules to find the intent of the voters, then is it appropriate for the Legislature to step in and overrule that judgment by the court?" Mr. Ornstein said.

"How you resolve that kind of dispute is an open question. That one ends up in the U.S. Supreme Court and it could end up in Congress. You could conceivably have two sets of electors coming up here," he said.

But if one of the candidates ends up winning Florida's 25 electoral votes outright at the end of a long, disputed hand count, that does not necessarily mean the end of Florida's electoral problems.

House Republican Whip Tom DeLay is circulating a memo reminding colleagues that it takes only two members, one from each house, to object to an elector or slate of electors and a majority vote to reject them.

Florida lawmakers yesterday were clearly concerned that media coverage of the contested election might hurt the state's image.

Mr. McKay urged creation of a bipartisan commission to examine the Florida election laws that have been the focus of legal challenges in the presidential election.

"That review must begin soon and must be conducted in a nonpartisan manner that will ensure the highest level of public confidence," the Republican state senator said.

In the House, Mr. Feeney told colleagues, "We have an opportunity to lead this great state forward and show the world that we are not the state currently being portrayed on the evening news."

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