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Florida Legislature would pick electors if votes not certified by deadline


In this story:

The Constitution and federal laws

Baker's comments


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.

Key court filings in the election cases before the Florida Supreme Court from the court's Website
(These require Adobe® Acrobat® Reader™)

Florida Supreme Court ruling (FindLaw) (requires Adobe® Acrobat® Reader™)
Petition from Palm Beach County - November 14
Initial brief of Attorney General Robert A. Butterworth - November 18
Brief of Al Gore and Florida Democratic Party - November 18
Answer of George W. Bush - November 19
All election litigation filings before the Florida Supreme Court
Florida Supreme Court hearing on election ballot recount

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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.

The Constitution and federal laws

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.

Baker's comments

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
November 20, 2000
Bush, Harris urge end to Florida recount; Gore seeks uniform standard
November 19, 2000
Gore asks Florida high court to set standards for recount
November 19, 2000
Presidential vote recounts yield few changes so far, officials say
November 19, 2000
Democrats protest exclusion of ballots in Palm Beach County
November 19, 2000
Lieberman says Dems not trying to block absentee ballots
November 19, 2000
Congress studying electoral college scenarios
November 19, 2000
Bush camp blasts 'flawed' count
November 18, 2000
Candidates' lawyers head for court showdown in Florida
November 18, 2000
Manual recounts continue as court refuses Republican request for a halt
November 18, 2000

Florida State Courts
Florida Southern District Court
Electoral College
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Palm Beach County government

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