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Electoral College may not need Florida electors to choose president


November 10, 2000
Web posted at: 7:07 p.m. EST (0007 GMT)

In this story:

The likelihood of Florida electors being shut out

The prior constitutional crisis

Yet another scenario


WASHINGTON (CNN) - On December 18, electors from all 50 states are scheduled to pick the president. An 1887 law fixes this as the date for electors to cast their ballots, constitutional law scholars said Friday.

Because Florida's votes are still being counted and given the possibility of legal challenges blocking ballot certification, it is remotely possible that Florida may not appoint its share of 25 electors by December 18, the scholars said.

graphic  ALSO
Judge grants injunction to freeze Palm Beach vote certification
Beckstrom v. Volusia County Canvassing Board (FindLaw)
Florida statute concerning the appearance of general election ballots (FindLaw) (PDF format)

State court complaint seeking a new election in Palm Beach County, Fladell v. Palm Beach (FindLaw)

Palm Beach County voters' class action civil rights complaint, Horowitz v. Lepore (FindLaw) (PDF format)

Withdrawn federal complaint seeking a new Palm Beach county election, Miller v. Harris

Section 102.168 of the Florida Electors and Elections Code (FindLaw) (PDF format)
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That means only 513 members of the 538-strong Electoral College would be available to pick either Democrat Al Gore or Republican George W. Bush to be the next president.

Can the remaining electors still pick the president with Florida shut out of the process?

Yes, according to Neal Katyal, a constitutional law professor at Georgetown University's law school. He said the 12th Amendment to the U.S. only requires a "majority" of the electors to vote and nothing in the Constitution says all electors must vote.

Such a scenario could help Gore, he said.

If all 538 members voted, the winner would need 270 votes to be named the next president. But if only 513 electors were present, the requisite majority would be reduced to 257, said Michael Glennon, a constitutional scholar at the University of California-Davis who has written a book on the Electoral College.

Gore is closer to 257 than Bush. In fact, until Friday evening, Gore had 260 electoral votes, compared to Bush's 246.

After New Mexico was ruled too close to call, Gore lost five electoral votes from that state, bringing his total to 255, while Bush's tally remained unchanged.

The likelihood of Florida electors being shut out

Joel Gora, an election-law specialist at the Brooklyn Law School, said it is highly unlikely that Florida will fail to certify its ballot and appoint electors by December 18.

Soon after the votes are recounted November 17, "I think the state would go ahead and certify unless there is a court order otherwise. And I think that's extremely unlikely ... as a practical matter, but it is possible."

He said allegations over a confusing ballot in Palm Beach County likely would not be sufficient for a Florida judge to put the statewide certification process on hold.

Gora also said the U.S. Supreme Court has not had a case requiring the justices to definitively interpret the 12th Amendment's Electoral College provisions.

The prior constitutional crisis

The only time there was a potential constitutional crisis over the Electoral College issue was in 1876, Glennon said.

GOP candidate Rutherford Hayes won 185 electoral votes though Democrat Sam Tilden, who had 184 electoral votes, had won the popular election by a razor-thin margin of less than 1 percent, Glennon said.

Democrats in Congress overruled one of Hayes' electors' votes and in retaliation Republicans overruled 19 of Tilden's electoral votes, Glennon said.

Faced with a constitutional crisis, politicians reached a compromise - they appointed a special commission composed of five Democrats, five Republicans and five Supreme Court justices, he said.

After Hayes promised to withdraw Northern troops from the South, the commission awarded all 20 electoral votes to Hayes, making him the president, Glennon said.

To prevent future Electoral College disputes, Congress passed the Electoral Count Act in 1877. The law left the task of choosing electors to the states, but Congress reserved the power to reject any elector's vote if a simple majority of members in the U.S. House and Senate agreed that the vote must not be counted, Glennon said.

Yet another scenario

Fast-forwarding to 2000, there is yet another scenario under which Florida electors could cast their votes even if the state fails to certify the ballot by December 18, according to Bruce Fein, a constitutional scholar and lawyer in McLean, Virginia.

Electors for Gore or Bush could still cast their ballots and leave it up to Congress to challenge individual votes - if they choose to - on January 6, when the electoral votes will be unsealed and tallied, Fein said.

Fein rejected the interpretation of the 12th Amendment and the 1887 law that says choosing electors is a state function. Because Congress has the ultimate authority to accept or reject an elector's vote, "the issue of whether an elector has been appointed is a matter of federal constitutional law," Fein said.

"What's most likely to happen (is) both the Gore and the Bush electors would go and cast the ballot whether or not there was an official" certification by Florida, he said. "Why would a state want to disenfranchise itself?"

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