The Florida Gambit
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
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
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
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