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Florida Legislature would pick electors if votes not certified by deadline
WASHINGTON (CNN) -- If the Florida vote is not certified by December 12 the Florida Legislature will decide whether Democrat Al Gore or Republican George W. Bush should get the state's crucial 25 electoral votes, according to legal scholars.
The U.S. Constitution and federal laws give state legislatures the authority to figure out how to pick electors, scholars said.
But neither federal nor Florida laws specify the legal standards the legislature should follow in deciding whether Gore or Bush should get the electoral votes, scholars agreed.
That means, scholars said, the 160-member Florida Legislature could theoretically base its decision on pure politics - and the losing candidate could once again sue in state court, further delaying the answer to this question: Who will succeed President Clinton?
"The only thing in Florida law is the governor has to call a special session. Given the very large majorities the Republicans enjoy in the House and Senate, they are going to pick the Texas governor," said Johnny Burris, who teaches at the Nova Southeastern University law school in Broward County, one of the jurisdictions doing a manual recount of the November 7 vote.
If the electors are not selected by December 12, Florida Gov. Jeb Bush, brother of the presidential candidate, would have to call the legislature into special session to choose the electors, said University of Miami law professor Terence Anderson, an election-law specialist.
If electors have been selected through the normal process, the legislature cannot change the electors, Anderson said.
"It's only if the system fails that they can do it," Anderson said.
Article II of the U.S. Constitution gives state legislatures the power to appoint electors in any "manner" they choose.
Title III of the U.S. federal code says if electors have not been chosen by the deadline - set as December 12 under a separate federal law - the electors may be appointed by legislatures, again in any way they choose. Another section of the same law says that the legislature may appoint electors through laws passed before the December 12 deadline.
Title III suggests that the Florida legislature must pass a law between now and December 12 specifically giving itself the power to choose the electors if the statewide vote is not certified, said Joel Gora, an election-law scholar at the Brooklyn Law School.
James Baker III, a former U.S. Secretary of State serving as Bush's campaign observer in Florida, suggested Tuesday that if the legislature has to pick the electors, lawmakers might attempt to "affirm the original rules" by which the election was held.
Currently, Bush leads Gore by some 900 votes in the last official tally released by Florida Secretary of State Katherine Harris last week.
Baker's comments create a scenario under which the Florida legislature could, based on the current tally, award the electors to Bush - even if Gore ends up winning the popular vote in Florida. Republicans hold a 77-43 majority in the House, and a 25-15 edge in the Senate.
Burris said the legislature could, theoretically, declare whomever it want as the winner, but he predicted that any such decision will certainly be challenged on the grounds that the legislature is overriding the public will.
Gora said the state supreme court decision on Tuesday, setting a weekend deadline for recounts to be completed and ordering that the recount totals must be included in the final vote tally, sets a deadline for electors to be chosen.
"The Florida Supreme Court said it is the will of the people that picks the electors, not that will of the ... legislature," noted Neal Katyal, a constitutional scholar at Georgetown University law school.
A decision by the legislature to give the electoral votes to a candidate who did not win the popular vote would create a true constitutional crisis, Burris said.
Deadlines and 'will of the voters' debated in Florida Supreme Court
Florida State Courts
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