-Caveat Lector- >Stolen Elections >The Florida Legislature Wants to Name the Next President. Here's Why >It's Illegal. > >By John K. Wilson > >If Tom Feeney has his way, he'll get to decide the next President of >the United States. As the Speaker of the Florida House of >Representatives, Feeney is making a unique claim: that the Florida >legislature has the power to overrule the courts and the popular vote, >and appoint its own slate of electors. Florida Gov. Jeb Bush, who >knows that the Republican-controlled legislature would elect his >brother, has endorsed the idea as "the right thing to do." > >There's only one problem with Feeney's plan: it's blatantly illegal. >Both Federal law and Florida law explicitly prohibit the legislature >from declaring the next president. > >On Dec. 8, the Florida House and Senate made history by becoming the >first state legislature ever to meet for the purpose of overturning >the people's vote in a presidential election. The Florida legislature >plans to declare George W. Bush the winner on Dec. 13, and even if >court rulings make this unnecessary, the precedent of legislators >illegally overruling a popular vote is a serious threat to democracy. > >Feeney hired conservative Harvard law professors Charles Fried and >Einer Elhauge, along with attorney Roger Magnuson, to argue this >notion before a Republican-controlled joint legislative committee that >issued a report Nov. 28 endorsing the idea. The lawyers also filed an >amicus brief in the U.S. Supreme Court and Florida Supreme Court >cases, asking the Court to endorse their dubious belief in legislative >supremacy. > >Feeney's lawyers argue that the Florida legislature has "an >affirmative constitutional duty to appoint Presidential Electors >before December 18 to assure Florida is represented in the Electoral >College." Feeney's lawyers relied upon shaky justifications for their >proposal to allow legislative nullification of a presidential >election. The lawyers' brief cited McPherson v. Blacker, an 1892 >Supreme Court case which declared that appointing electors is "placed >absolutely and wholly with the legislatures of the several states." >Unfortunately for Feeney, though, the Florida legislature used its >absolute authority to give Florida courts the final power to determine >the winner of a contested election. > >Florida's state law directly contradicts the idea that the >legislature rather than the judiciary can determine the final outcome. >Section 102.168 (8) of Florida law declares about a contested >election, "The circuit judge to whom the contest is presented may >fashion such orders as he or she deems necessary to ensure that each >allegation in the complaint is investigated, examined, or checked, to >prevent or correct any alleged wrong, and to provide any relief >appropriate under such circumstances." > >Nothing could be clearer: the courts, not the legislators, have the >power under Florida law to make a final determination. Because the >Florida Supreme Court has the authority to overrule a circuit court in >accordance with Florida law, the judiciary is the ultimate arbiter. > >Just to be perfectly clear, Florida statutes explicitly declare that >there is only one exception to this rule, under 102.171, "to hear any >contest of the election of a member to either house of the >Legislature." For the presidential electors, the legislature is >utterly powerless to intervene under its own laws. > >Of course, the Florida legislature does have the power to change the >rules. In fact, under the U.S. Constitution, the Florida legislature >can eliminate elections and simply appoint the presidential electors >directly. However, Federal law 3 U.S.C. 1, under Section 5, explicitly >outlaws changing the election system after the vote in order to affect >the outcome. If the Florida legislature tried to appoint electors in >place of election procedures, there would an immediate legal basis for >having these electors thrown out because of the violation of Federal >law. > >Feeney's lawyers argue, "If a State's election 'has failed to make a >choice' that is timely and conforms with pre-existing law, then 3 >U.S.C. Sect. 2 recognizes that appointment of Electors by the State >Legislature is proper." A superficial reading by someone unfamiliar >with legal language might lead to this misreading of Section 2, which >states: "Whenever 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 on a subsequent day >in such a manner as the legislature of such State may direct." > >However, this provision exists not to allow state legislators to >overturn a contested election, but to provide an option in case of a >tie. Because federal law normally bans any election held after the >designated election day, this provision is necessary to allow a >re-vote to break a tie. The word "appointed" in federal law refers to >voters electing a candidate, not the legislature declaring a winner. >Since Florida has certified George W. Bush as the choice, there is no >case where the state fails to make a choice. If courts reverse this >decision and Al Gore is declared the winner, there will be two >choices, not zero. Yale law professor Bruce Ackerman, noting that the >Florida legislature's plans were illegal, told its special committee, >"Florida will not have failed to act, but will have acted twice. This >two choice situation has also been foreseen in the federal >statutes--which have elaborate provisions for regulating the way in >which the claims of rival slates should be assessed under the >Constitution." > >Feeney's claim is so radical, it even argued to the U.S. Supreme >Court that "departures" from standards in previous elections on manual >recounts by county canvassing boards "require the Florida Legislature >to appoint Electors." By arguing, the Florida legislature could >overrule the popular vote in almost any situation where an election is >contested. Indeed, the constitutional argument that state legislatures >can appoint electors means that any legislature could overrule a >popular vote at any time. > >To justify his decision, Feeney quoted James Madison's statement in >Federalist No. 45: "Without the intervention of the State >Legislatures, the President of the United States cannot be elected at >all. They must in all cases have a great share in his appointment, and >will perhaps in most cases of themselves determine it." But the >Federalist Papers were propaganda, not constitutional analysis. >Madison's attempt to butter up the state legislators was never >intended to allow them to seize power after an election. The president >can't be elected without the state legislatures because the >legislators pass the state election laws. Madison said that the state >legislatures might determine the election because he expected >legislatures to appoint electors (seven out of ten states did in the >first presidential election in 1788), not because they would >unilaterally overrule a public vote required under state law. When >state law demands an election, as it does in Florida, the legislature >is powerless to overturn it. > >Republicans are pushing for this legislative nullification of the >Florida election because they're terrified that a court-ordered >recount will hand the election to Gore. Federal law forces Congress to >accept state election results only if they are finalized six days >before the electors vote (on Dec. 18 this year). If the Florida >electors remain in dispute by Dec. 12, the Florida could end up >sending a contested slate of electors' votes to Congress. In that >case, the Senate (which is now split 50/50 and until Jan. 21 will be >controlled by the Democrats, with Vice-President Gore casting a >tie-breaking vote) and the Republican House would disagree if there is >a party-line vote, and then under Title 3 of Federal law, Section >1.15, the decision on contested electors would go to the slate >certified by the Governor of the state. > >However, if the Florida courts overturn the Bush election before Dec. >18, Florida's Secretary of State and the Governor are obligated under >Florida law to sign a new certification removing the old victor and >declaring a new one. If this happens, Jeb Bush's own signature would >provide the tie-breaking vote to take the presidential election away >from his brother. Perhaps that's why Jeb is so anxious to have the >Florida legislature do "the right thing" for his sibling, even if it >means violating its own laws. >---- >John K. 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