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The Florida Gambit

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If the contests drag on, G.O.P. legislators might just go ahead and pick their own electors

Tom Feeney may be the only man more influential in Florida than football king Bobby Bowden. So when the Bush campaign issued a midnight call-to-arms after the Florida Supreme Court's decision last Wednesday, Feeney was ready. With the seething contempt of a coach behind at half time, the new Republican speaker of the Florida House of Representatives tore into the ruling. "The Florida Supreme Court could have given us a resolution," he said. "Instead, I fear, it has given us a potential constitutional crisis."

And with that, America reached DefCon 1, with Feeney's finger just above the glowing red button. A state legislature hasn't disregarded its popular vote and sent its own electors to Congress since 1876. But by joint proclamation with state senate president John McKay, Feeney can summon all state legislators to Tallahassee for a special session to do just that, even as early as this week. That could precipitate an almost unimaginable series of constitutional nightmares, from a divided U.S. Congress fighting over what to do with the Florida electors to the U.S. Supreme Court having to choose our next President.

Florida's most hawkish Republicans see the state supreme court decision to move the certification deadline from Nov. 14 to Nov. 26 as the latest usurpation of their legislative power; the court has recently struck down a parental-consent abortion law as well as a law limiting death-row appeals. This prompted some Republicans to try expanding the number of judges on that court so they could pack it with their own. (They failed, just as Franklin Roosevelt did when he tried a similar maneuver with the U.S. Supreme Court.) A special legislative session picking Bush electors, using the original deadline as guidance, is a way of saying, in the words of Republican state senator Charlie Bronson, "Kiss my grits."

But it would also cost $40,000 a day, be legally suspect and potentially disastrous politically. Federal law says the legislature can declare its own winner if the choice of the voters is not obvious "on the day prescribed by law." Many electoral experts interpret this to mean the state doesn't have the right to step in until Dec. 12, the deadline for Florida to choose its electors. If Feeney wants to intervene before then, he would have to argue that "the day prescribed by law" has already passed.

The risks of such a move would be huge: just two years ago, Republicans took control of both houses and the Governor's mansion for the first time since Reconstruction. If the legislature picks Bush electors while votes are still being challenged, voters may take revenge in two years. And Governor Jeb Bush would have to sign the bill, playing a decisive role in the election despite his pledge to stay out.

Moderates in both houses recognize the likely collateral damage, and are urging patience. "The legislature taking action would be a pretty heavy hand," admits Republican state representative Jerry Maygarden. Due to term limits, nearly 40% of the legislature is made up of new members, sworn in just last week. Committee assignments have yet to be made, and many members have just figured out where their offices are. This is no time for Armageddon.

But TIME interviews with both Democratic and Republican legislators show a growing concern that the continuing legal challenges might prevent Florida from meeting its Dec. 12 deadline for choosing electors. If court contests are still unsettled by the end of next week, the legislature may have little choice but to act on its own. "No one is gung-ho about calling a special session," says state representative Bob Allen, a freshman Republican, "but if the situation is still in stalemate, we are willing to take action."

Members say they are waiting to take their cues from the leadership. As speaker of the state house, Feeney has full control of the legislative agenda, and nothing becomes law without his approval. With a 100% rating from the Florida Conservative Union and regular accolades from the Christian Coalition, Feeney is a true-blooded conservative. In fact, it was his hard-line views that helped cost Jeb Bush the governorship when the two shared the ticket in 1994. (Bush moderated his views and won four years later.) This year Feeney ran for speaker on a platform of cooperation, promising to end the bitter partisan wrangling that has recently bottled up legislation.

Since his angry press conference last week, Feeney has softened his tone. Legislative veterans were quick to tell him that he was not risking just his own political hide but the careers of his colleagues too. So while stressing that he is keeping all options open, Feeney's focus now is on the lawsuit before the U.S. Supreme Court. He had the legislature hire three constitutional experts, including Harvard's Charles Fried, to argue that the Florida Supreme Court unconstitutionally rewrote Florida law and usurped executive power. He has also set up a joint task force made up of eight Republicans and six Democrats to investigate "voting irregularities" such as the failure to count all overseas military ballots and the differing standards of the manual recounts. But if the U.S. Supreme Court rejects the Bush petition this week, all eyes will be back on the man with his finger on the constitutional trigger.

--Reported by Timothy Roche/Tallahassee and Massimo Calabresi, Sally B. Donnelly, Anne Moffett and Mark Thompson/Washington


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Cover Date: December 4, 2000

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