- The Washington Times - Friday, December 1, 2000

A Florida legislative committee yesterday called for convening a special session of the Legislature for the purpose of appointing Florida's presidential electors. When this alternative was suggested by former Secretary of State James Baker in the wake of last week's Florida Supreme Court decision, several television commentators suggested that the Bush campaign was threatening to go nuclear. Gore lawyer Kendall Coffey said on national television that such a move would be a threat to the rule of law. The New York Times and other leading papers have since chimed in on how outrageous legislative action would be.
By what line of reasoning is it either nuclear or threatening to the rule of law to suggest that the Florida Legislature do what is explicitly provided for in the federal statute that implements the presidential election provisions of the United States Constitution? Since when is the rule of law imperiled by democratic action pursuant to express authorization under the Constitution and laws of the United States?
Article II of the United States Constitution provides for each state legislature to appoint presidential electors. Title 3 of the United States Code provides that the appointment is to be made on the first Tuesday after the first Monday in November. No where in federal law does it say electors are to be selected by popular vote. Florida, like every other state, has chosen to select its electors by popular vote on the date specified by Congress.
Title 3 provides further that "[w]henever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed … in such a manner as the legislature … may direct." This federal law anticipates the situation in Florida. The law does not require the Legislature to intervene, but it recognizes that the Legislature has the power to do so. When should a state legislature exercise that power?
Notwithstanding the extreme rhetoric of both the media and the Gore campaign, the case for legislative action may become persuasive, particularly in light of the Florida Supreme Court's agreement with the Gore campaign's insistence that the will of the people must be respected. It should not be even an open question whether the will of the people is better represented by an unelected court's exercise of its equitable jurisdiction or by a popularly elected legislature's action pursuant to state and federal law.
The will of the people of Florida is best determined by a vote of all of the state's voters. That vote has taken place and the will of the people is clear. It is evenly divided. We will never know which candidate was the real winner of the Nov. 7 vote. No amount of recounting by any method will change the fact that the margin of error in Florida's election system is larger than the difference between the votes cast for the two candidates. Neither hand counting nor any existing voting technology can assure that among more than 6 million votes, a victory margin of a few hundred will be determined beyond reasonable doubt. And so we have a score of lawsuits raising those doubts.
Florida's government, like every state government in our country, is republican, which is to say representative, in form. The people of Florida elect members of the Legislature who in turn enact all manner of laws that are presumed to reflect the will of the people. Short of a new statewide election with more reliable counting methods, an option which only the Legislature could order, but which time constraints would seem to prohibit, there is no legal entity with a better claim to speak for the people of Florida than the state Legislature.
A U.S. Supreme Court decision early next week could bring this matter to a close, but that seems unlikely given the Gore campaign's insistence that they have won the election, if only they can get the votes counted. If the legal wrangling over Florida's representation in the Electoral College continues in both the state and federal courts, the case for legislative intervention will get stronger by the day. There can be nothing shocking about the exercise of this power, since the Constitution explicitly provides for legislative appointment of presidential electors, and it is only by the action of the Florida Legislature that a popular vote was held in the first place.
If the choice is between resolution by unelected judges or by the popularly elected representatives of the people, there seems little question the will of the people of Florida will be better served by legislative appointment of the electors. If the matter finally ends up in the U.S. House of Representatives as some have predicted, a determination by the Florida Legislature, the very body granted the authority to appoint electors by the U.S. Constitution, will surely take precedence over the judgment of either a state or federal court.
The Florida Legislature has the legal authority to appoint presidential electors. If the lawsuits persist, the Legislature may fairly conclude that intervention is the only way to assure that the will of the people prevails. Will it be a political decision? Yes. But this is an election we are talking about.

James L. Huffman is dean and professor of law at Lewis and Clark Law School in Portland, Ore.[p]

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