FLORIDA'S ELECTION DAY VOTE COULD BE IRRELEVANT

By NEAL KUMAR KATYAL

Now that Vice President Al Gore has won the national popular vote, the case for Governor George Bush's accession to the presidency depends entirely on what is usually a constitutional formality.

Basic popular sovereignty principles underlying our constitutional system argue that the people's vote should govern. Nevertheless, because under the Constitution, presidents are elected by an Electoral College, the Bush camp argues that the popular vote is irrelevant. They believe that respect must be given to the rule laid down ahead of time, which mandates that the Electoral College system must be followed and that adherence to the formality of the process is essential.

If formality of the process is what is important, it is worth pointing out that the votes of Floridians on November 7 may now be constitutionally irrelevant, too.

The U.S. Constitution gives the federal Congress the power to set Election Day, and Congress did so in 1948, codifying the first Tuesday in November as the chosen day. But in the same law, Congress also specified that the delegates to the Electoral College must be appointed by states on that very day. If not, certain duties are imposed on the state legislature.

Consequences of Florida's Failure Timely to Comply

What are the consequences if a state fails to comply, and, like Florida, does not appoint delegates by midnight on Election Day? According to the 1948 law, "whenever any state has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct."

Consider two ways of reading this provision. The extreme way is to say that the Florida legislature can throw out the November 7 election results, and call for a new one. The other is to say that the Florida legislature must do everything in its power to investigate the November 7 vote, and to certify the result, if they miss the federal deadline. Thus far, the legislature has done nothing.

Of course, lost ballot boxes or slow counting could alone cause a state to miss the federal deadline. And in the garden-variety election, the federal deadline makes no difference.

But this is no ordinary election. In the type of vote that is hotly contested and goes into the wee hours, or that is questionable and may take days to resolve, it makes sense that Congress decided to shift the responsibility to fully accountable, elected state officials, rather than leave it in the hands of appointed, anonymous ballot counters or others.

The Florida Legislature Has the Power to Redress Election Problems

Right now, there are allegations that the Florida presidential election was tainted by fraud and voter intimidation and thrown into question, as well, by confusion due to a poorly written ballot. In Palm Beach County, thousands of voters may have mistakenly voted for Buchanan (who apparently received disproportionately high numbers of votes in Florida as compared to the rest of the country) when they intended to vote for Gore.

More than 19,000 ballots in Palm Beach County, which voted overwhelmingly for Gore, were thrown out, apparently due to this confusion. The Bush camp claims there were voting irregularities also. Officials from both campaigns have discussed challenging these voting irregularities in the courts, should their candidate lose. Fair enough, but before going to court, other means of righting wrongs should be tried.

Here, the federal law says the ball is in the court of the Florida legislature. Alternatives range from calling for a new statewide election, to requiring a new vote only in the counties whose votes are tainted, to splitting the electoral votes equally among the candidates.

The point is that the Florida legislature holds the key to making the election for our next president a fair one. They have the ability to call a new election or to adopt a lesser remedy, should they choose to do so. If they do not choose to do so, the fault is theirs -- and any injustice will lie at their door, not just that of the Florida courts.

Will the Legislature Exercise its Power?

Now that the power to correct the election has shifted to the Florida legislature, what is the chance it will exercise that power? The Florida legislature is overwhelmingly Republican and therefore may favor of Bush.

But the Florida attorney general is a Democrat, and he thus far has done the right thing in ordering a recount rather than immediately asserting his authority to invalidate the election for fraud, and in vouching for the integrity of Republican ballot officials.

The recounting alone, however, is not necessarily enough; federal law permits Florida to enact procedures to fix the irregular vote up to six days before the Electoral College meets.

If allegations of voter fraud, intimidation or confusion are investigated and found valid, the Florida legislature will lose all credibility with the nation (and with the voters of the state of Florida as well) if it refuses to impose a remedy suited to the wrongs found.

If the election was pristine, voters will be angry if a valid exercise of the popular vote is reversed -- and it might be political suicide for the legislature to attempt such a reversal.

But conversely, if the election was tainted, voters will be equally angry at the legislature if it is not reversed -- for that would thwart the will of voters in Florida and indeed of voters nationwide. Hell may hath no fury like that of a voter who meant to vote for Gore, inadvertently voted for Buchanan, and watches Gore lose the presidency as a result. Particularly so if not only a majority of the nation, but also the state of Florida, voted for Gore as well.

Let the Florida legislature try its hand. If its members elevate politics over principle, then the nation, as well as the campaigns, will know whom to blame and can bring the full power of the courts to bear on the matter. They can also ask the U.S. Congress, which will be counting the Electoral College ballots, to appoint a commission to investigate the matter (a procedure which was used in 1876).

Insisting on the formality of appointing delegates on November 7, as the federal statute requires, runs risks. It may mean that the actions of many states are problematic because they did not appoint delegates by midnight.

But in the majority of states, the federal statute should not matter since the legislatures of the states will give credit to the popular vote as long as, unlike in Florida, there are no allegations of improprieties, voter confusion and the like.

Moreover, whatever one may say about the wisdom of the statute shifting responsibility to state legislatures after midnight, it is the law. And in a world in which Americans are required to respect the formality of the process instead of the national will, they should respect all of its formalisms, and not just some of them.

Neal Katyal, a contributor to FindLaw, is an associate professor of law at Georgetown University Law Center, and the author of numerous publications regarding the presidency.

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