In the wake of the Florida Supreme Court’s ruling mandating a manual recount of more than 43,000 Florida ballots statewide, the presidential election has turned into a web of hypotheticals — with the very real possibility that Al Gore could end up casting a saving vote for himself, and Jeb Bush end up controlling the fate of his brother.
GOP candidate George W. Bush is appealing the case to the U.S. Supreme Court and has asked for an immediate injunction to halt the hand recounts. There are three possible outcomes. First, the court can decline to hear the case and allow the recounts to continue. Second, it can decide to hear the case (that decision requires four votes) but still allow the counts to continue. Third, it can decide to hear the case and issue a stay of the court’s decision, halting the recounts. That would take five votes. Bush supporters are also seeking injunctions from the 11th Circuit Court of Appeals to halt the recounts.
Meanwhile, the GOP-controlled Florida Legislature is poised to meet next week to choose a slate of electors for George W. Bush. If the Supreme Court issues a stay halting the hand counts, Florida will send the Bush slate of 25 electors to the Electoral College, with the final disposition of those electoral votes to be determined by the U.S. Supreme Court review and the results of any recounts that are ultimately allowed.
If the court fails to issue the stay, the Legislature has threatened to name an electoral slate for Bush, even though Gore could have taken the lead by then in the vote count.
Such an action, which has been denounced by Democrats as a constitutionally dangerous attempt to ensure a Bush victory, could lead to an unprecedented collision between the Legislature and the state’s highest court. If Gore ends up the winner in the recount, the Florida Supreme Court could certify a parallel slate of electors pledged to Al Gore.
The court might argue that the Legislature is violating its own principles set out in Section 103.021 (1) of the Florida statutes, which requires the Legislature to uphold the will of the people in determining which slate of electors to choose.
But that Florida law has a somewhat confusing relationship with the U.S. Constitution. Article II of the U.S. Constitution states that states have the authority to appoint electors “in such manner as the legislature thereof may direct.” But Florida law, which was passed by the Legislature, requires the Legislature to abide by the popular vote.
If Florida sends two sets of electors to the Electoral College, a partisan brawl is certain to erupt in Congress — and the possibility of a full-scale constitutional crisis, which has loomed in the background of the entire election, will grow greater.
The federal Electoral Count Act of 1887, which was passed in the wake of the Hayes-Tilden presidential debacle, stipulates that any conflict over electors be resolved by the Congress. But that congressional fight would take place on Jan. 6 — which means it would be the new Congress. If partisan lines hold, Bush would win in the House, and the Senate would deadlock in a 50-50 tie. In that scenario, the vice president, who also serves as president of the Senate, would cast the tie-breaking vote. And the vice president at that time would still be Al Gore. (Of course, even one Democratic senator willing to cross party lines could give the presidency to Bush. The same holds true if five GOP House members went over to Gore.)
But the ironies of this unprecedented election don’t end there. If the two houses split, under the 1887 law, the matter is to be resolved by the governor of the state — Jeb Bush, George W. Bush’s brother!
If Jeb Bush recuses himself, there does not seem to be any statute governing what happens next. If he refuses to recuse himself, and certifies the electors for his brother, it is possible that the Florida Supreme Court could order him to certify the slate for Gore. If he refuses, he could conceivably be held in contempt of court.