In the ever-expanding civics lesson we call the 2000 recount, the Republican-controlled Florida Legislature convenes in special session Friday to begin the process of choosing the state's electors and, Democrats fear, awarding them to Texas Gov. George W. Bush.
State legislatures do have a constitutional right to choose the men and women who cast the actual votes for president. Article II, Section 1 of the U.S. Constitution provides for states appointing electors in the manner of their choosing. Prior to 1824, many state legislatures chose presidential electors. But Bush backers pushing for a legislative solution ought to consider carefully before letting this constitutional genie out of the bottle.
The first problem is legal: The same law Bush lawyers cite when claiming the Florida Supreme Court cannot change election laws after the fact and extend the deadline for a manual recount (the "Safe Harbor Law") could also invalidate legislative action if the Legislature chooses electors directly. A number of election-law scholars, such as University of Chicago law professor Elizabeth Garrett, believe the Legislature would be violating federal election law by giving the right of elector selection to the Legislature and not the voters, after the fact.
But even if such action proved legal, it would be unwise politically.
Should the Florida Legislature ignore the ongoing legal challenges and preemptively select Florida's 25 electors, it would remove the only obstacle -- tradition -- that prevents Democrats from taking similar action. If Vice President Al Gore chose to do so, he could play tit-for-tat in five states.
Alabama, Georgia, Mississippi, Missouri and North Carolina were carried by George W. Bush but have Democratic governors and Democrat-controlled legislatures. Should Bush choose to take the 25 Florida electoral votes through a legislative vote, Democrats in those states would face no legal or political impediment to appointing Gore electors.
Of course, it would be political suicide, both for the vice president and many Democrats, for the Gore campaign to ask those states to overturn the will of the people and award all of their electoral votes to the losing side. But there is a less onerous option: State legislatures could decide to award electoral votes on a proportional basis, as is done in Maine and Nebraska.
If these five states awarded an elector for each congressional district carried by Gore, the vice president would pick up an additional 17 electoral votes: five in Georgia; four each in Missouri and North Carolina; and two in Alabama and Mississippi. Combined with his recently certified wins in Oregon and New Mexico, that would give Gore 284 electoral votes, enough to win the election even without Florida.
Republicans would have fewer options to retaliate, since only two states whose electors are pledged to Gore -- Michigan and New Jersey -- are firmly under Republican control. Even if Gov. Bush's team could persuade those two states to award electoral votes proportionally, Bush would gain only 13 additional electors, not enough to deny Gore the presidency.
The Gore team could argue that a proportional allotment of electors in those five states is an appropriate step, given the vice president's victory in the national popular vote and the disputed outcome in Florida. Missouri Democrats, who have already accepted the idea of keeping the polls open in St. Louis and electing a deceased U.S. senator, might be most easily persuaded to breathe new life into the Gore campaign.
Furthermore, the Bush campaign would be on shaky legal ground in challenging the action in those five states while defending what happened in the Florida Legislature. Congressional options also shouldn't give Republicans solace. While it is true that Congress determines which electoral slate to accept in case of a dispute, a tie in the new Senate, with its 50-50 makeup, would be broken by the sitting vice president, Al Gore. With the House voting Republican and accepting the Bush slates, the governor of the state with the disputed electoral slate is charged with determining which is valid.
The current thinking is that Florida Gov. Jeb Bush could eventually decide who becomes our next president. But if Democrats choose to retaliate in the legislatures, similar choices may be up to Democratic governors Bob Holden (Missouri), Don Siegelman (Alabama), Roy Barnes (Georgia), Ronnie Musgrove (Mississippi) and Mike Easley (North Carolina).
A preemptive vote in the Florida Legislature to award 25 electoral votes to George W. Bush before all legal challenges are resolved could make every future presidential election outcome with a margin of less than 1 percent fair game for legislative meddling and partisan, state-by-state retaliation.