SelectSmart.com Before you decide
Time is on Gore's side.
By Seth Kaufman© 2000 SelectSmart.com All Rights Reserved
Saturday, November 11, 2000; 12:30 PM (updated Nov 13, 2000 10:00 AM)
Federal law provides for a detailed procedure as to how the Electoral College votes. Under this law, found at Title 3 of the United States Code, Florida must appoint electors to the Electoral College by December 12. If Florida does not meet these deadlines due to legal challenges or political paralysis, then it will forfeit its place in the Electoral College and the majority of the remaining electors will elect the next President.
Under Title 3, Section 1, of the United States Code (3 U.S.C. § 1), a state appoints its electors "on the Tuesday next after the first Monday in November." This year, that date is November 12. It appears unlikely that Florida will meet this deadline. That is why Congress provided that if a state does not appoint its electors by that date, "the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct" (3 U.S.C. § 2). However, under 5 U.S.C. § 5, if a state has a law in place that determines controversies or contests of the appointment of all or any electors of that state, then the state has until 6 days before the Electoral College vote to appoint its electors. Section 5 also permits states to use the judicial process to determine the winner. Florida has a law governing such controversies (Florida Code Title IX, Ch. 102).
By federal law (3 U.S.C. § 7), the Electoral College meets on the first Tuesday after the second Wednesday in December, or December 12, 2000. Thus, if Florida does not appoint its electors by December 12, 2000, then Florida will not have any votes in the Electoral College.
What happens then? The 12th Amendment is clear. A candidate for President wins the Electoral college if he wins "a majority of the whole number of Electors appointed." Without Florida's 25 electors, the Electoral College consists of 513 electors. A candidate can therefore win with 257 electoral votes. George W. Bush's lawsuit may cause delays. Read CNN story. Florida has a statute pertaining to controversies and contests in the voting for the Electoral College (Florida Code Title IX, Ch. 102). Under 3 U.S.C. § 5, Florida has until December 12 to let its statutory process conclude if it is to have representation in the Electoral College.
Under the process under Florida's law, a party or candidate may file a written request to the county canvassing board for a manual recount (Section 4(a)). This request must be filed with the canvassing board prior to the time the canvassing board certifies the results for the office being protested. (The Republicans may want to request recounts in counties where they think their vote may be under-counted; they waive their rights if they do not do so within 72 hours of the county canvassing board's certification.) The county canvassing board may then conduct a manual vote. There is no time restriction
During the manual recount, bipartisan "counting teams" count all the ballots. If a counting team is unable to determine a voter's intent in casting a ballot, the ballot is presented to the county canvassing board for it to determine the voter's intent. See Section 7(b). James Baker's argument that there are no "standards" for the county canvassing board obviously did not concern the Florida legislature when it adopted its election law.
However, the Florida secretary of state says she will impose a deadline of Tuesday, November 14, 2000, on all the counties to return their results. This action would end the recounts underway and will pave the way towards a final certification on Friday, after the overseas absentee ballots are certified. However, the secretary of state's announcement may be illegal under Florida law and Gore may be able to obtain an injunction to prevent the state from certifying all the counties tomorrow. If Gore does not succeed, he will face an uphill battle to have the election certification overturned if the uncounted overseas absentee ballots do not push him over the top.
Contrary to the secretary's announcement, it is not clear that the state Elections Canvassing Commission must impose the deadline. Under § 102.111 of the Florida election code, "if the county returns are not received by the Department of State by 5 p.m. of the seventh day following an election, all missing counties shall be ignored, and the results shown by the returns on file shall be certified." However, Florida law also states at § 102.112 that "if the returns are not received by the department by the time specified, such returns may be ignored and the results on file at that time may be certified by the department." Thus, it is unclear whether the Florida Department of State "shall" certify or "may" certify the results on file at the end of Tuesday.
The different language adopted by the state legislature may account for the current situation, where counties have reported some results, but have been unable to file definitive results due to recounts. Democrats are sure to argue that the Republican secretary of state is a partisan who wants to end the process while Bush is still ahead. Democrats will also ask why the secretary of state is in a rush to certify the county results when the overseas ballots will not be counted until Friday at the earliest.
The secretary of state's decision to certify the county returns before the count of the overseas absentee ballots may also be illegal. § 102.111 states that "the Elections Canvassing Commission shall, as soon as the official results are compiled from all of the counties, certify the returns of the election and determine and declare who has been elected for each office." Thus, the Election Canvassing Commission must declare who has been elected when it certifies the returns of the election. It may be argued in court that if the state wishes to defer the declaration of the winner, it must wait until the overseas absentee ballots are counted as well. A premature certification of the winner of the election may not be legally and politically tenable, since the state and the Bush campaign has argued that the overseas absentee ballots must be counted.
If Gore or one or more counties obtain an injunction to prevent the state from certifying the county returns on Tuesday, either candidate can sue after the state certifies the winner. The basis for a contest is may be any "cause or allegation which, if sustained, would show that a person other than the successful candidate was the person duly nominated or elected to the office in question . . . . " § 102.168(3)(3). Thus, either candidate must show that he "would" have won if not for the voting or counting irregularities that were not resolved because of the state's decision to enforce the Tuesday deadline. A suit by Gore may meet this standard, since the allegation that hundreds or thousands of votes for Gore have not been counted, if proven true, would probably show that Gore won the election.
The candidate is entitled to an "immediate hearing" and "the court in its discretion may limit the time to be consumed in taking testimony, with a view therein to the circumstances of the matter and to the proximity of any succeeding primary or other election." § 102.168(7). The other candidate has 10 days to respond to the suit. The state court has broad powers. He may "may fashion such orders as he or she deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under such circumstances." § 102.168(8). This relief may the power to prevent, or enjoin, the state from certifying electors. The judge could also order a state-wide manual recount. Delay tactics could prevent a decision from being made prior to December 12.
If the state election board certifies the results of the Florida election, Gore will need judicial intervention to win the Florida electors. Federal law explicitly authorizes a state to employ a judicial process to determine the selection of its electors. If the judicial process is not complete before December 12, 2000, Florida would be without electors in the Electoral College. Since Gore will probably have a majority of the appointed electors committed to him, time is on his side. Delay tactics in Florida could give him the presidency. Some might call this scenario a constitutional solution. Others might call it a constitutional coup d'état.
Mr. Kaufman is an attorney in Washington DC