THE COMING WARS IN (NAME YOUR STATE): HOW JESSE VENTURA COULD CHANGE THE RESULTS OF THE PRESIDENTIAL ELECTION

By CRAIG J. ALBERT

Former Secretary of State James Baker suggested two weeks ago that "one should not now be surprised if the Florida Legislature seeks to affirm the original rules" — by which he meant the election rules that are contained in Article II of the original Constitution, and that still apply today. These rules arguably empower each state’s legislature to override the results of that state’s Presidential voting when it selects electors, by stating that "Each State shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors . . . ." (emphasis added).

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Last weekend, Florida’s House majority leader, Mike Fasano, took up Baker’s challenge. But while Fasano’s action may help Bush, it could also open up quite a can of worms and introduce chaos into electoral voting. For not only Florida’s legislature, but also every single one of the fifty states’ and DC’s, could then take over the choice of electors and override its citizens’ votes, if it so chooses. Florida has started what could be a national chain reaction.

A Chain Reaction of Rebellious Legislatures?

Republicans control both the House and Senate in Florida, and they have proposed a new legislative session in which the legislature appoints the electors — who will certainly vote for Bush. If Florida acted alone, its appointment of all-Bush electors would result in the following electoral vote count: Bush 271, Gore 267. Bush wins.

But wait a second. Florida might not act alone. Democrats enjoy a comfortable margin of control in West Virginia’s two houses, so although a majority of the state’s voters preferred Bush, its legislators likely prefer Gore. A proposal there to appoint five Gore electors would quickly shift the balance back. The count: Gore 272, Bush 266. Gore wins.

All hell might then break loose. Faced with the prospect of a stolen election, the state legislatures could devolve into chaos. The Democratic-controlled legislatures of Alabama, Arkansas, Georgia, Louisiana, Missouri, Mississippi, North Carolina, Oklahoma and Tennessee could all switch their votes to Gore, giving him 88 more electoral votes. But Michigan, New Jersey, Oregon and Pennsylvania, controlled by Republicans, could switch, too, taking 63 of those votes away from Gore again. The count: Gore 297, Bush 241. Gore wins.

The Governors Might Step In, Too

If all of these events actually occurred, no doubt the Republican governors of Michigan, New Jersey and Pennsylvania, and the Democratic governors of Alabama, Georgia, Missouri, Mississippi, and North Carolina, would be delighted to send the new certifications, all of which favor their respective parties.

Not so though, with Oregon’s Democratic governor — or with the Republican governors of Arkansas, Louisiana, Oklahoma, Tennessee and West Virginia — who would now be asked to certify electoral votes for the other party’s candidate. To please their respective parties, these unhappy governors might well stick by their original certifications, with each of them thus presenting two contradictory certifications (one from the governor, one from the legislators) to Congress. Now what?

Whose views will win out? A federal statute, 3 USC § 15, provides a clear answer. According to that statute, in the event of a conflict between the House and the Senate in deciding which votes to count, it is the governor’s certification that rules the day.

That means that 7 electoral votes would shift back from Bush to Gore (in states where the Democratic governor overrides the legislature), and 39 electoral votes would shift from Gore to Bush (in states where it is a Republican governor who prevails). The count: Gore 265, Bush 273. Bush wins.

At this point, I can’t help but imagine the pressures on three Republican state representatives in South Carolina or two Republican Kentucky state senators who, by a switch of their votes to Gore electors, could swing the presidency back to Gore. The Republicans could then go to the heart of the Grain Belt and find a small group of renegade Democratic Minnesota senators willing to switch to Bush. Minnesotans, after all, have been pretty sensitive about election gamesmanship, since their governor had himself appointed a United States Senator a few years ago. And if those renegades did switch, then Jesse Ventura, holding the power to certify either the legislature’s or the voter’s choice, would become the ultimate kingmaker.

The Democrats Win the Presidency and the Senate

It gets even wackier. Suppose Ventura crowns Gore the new President, and Lieberman accordingly becomes Vice-President. It’s been generally agreed that in that case, Connecticut’s Governor Rowland would appoint a Republican to the vacancy and give the GOP a 51-49 edge in the Senate. But not if events unfold as I’ve described above.

The argument that Rowland would have appointment power derives from the Seventeenth Amendment, which says that "when vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies." But that Amendment also provides, just afterwards, "That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct."

If one believes, as James Baker says he does, that Article II’s election rules empower state legislatures to override state election results, it follows that the language I just quoted from the Seventeenth Amendment similarly empowers state legislatures to override governors’ Senate choices. If the legislature "may empower the executive" to fill vacancies, may it not also take that power away?

If so, then more likely than not, in the wake of a Lieberman Senate vacancy, the Democratic-controlled Connecticut legislature would divest Governor Rowland of his power to make temporary appointments and would call for a new election for Connecticut’s Senator. Who would win? My money is on the Democratic Attorney General, Richard Blumenthal.

But Was Baker Correct in the First Place?

When the Constitutional Convention devised the Constitution’s election rules in 1787, the word "legislature" referred not just to a state’s elected representatives, but also to its governor. That suggests that the delegates intended that changes to the electoral process had to be made through legislation, which is presumed to operate prospectively, not retrospectively — in this case, before an election, not after. (I recognize, though, that the word is also used in a number of other contexts in which no legislation is contemplated.)

Moreover, Baker’s interpretation of the Constitution is so potentially destructive of our fragile system of government that it’s inconceivable the Founding Fathers intended such a result. Rather, as politicians and pragmatists, they would have created a regime in which election and counting rules must be set in advance, and under which state legislatures and governors can’t decide to override popular will once an election mechanism is in place. For it is hard to contemplate anything more disruptive for our system than an attempt to ignore the verdict of already-submitted ballots. (That is why Gore and Bush are each accusing each other of attempting that very thing.)

Back in 1789, many states chose the form of electoral choice that Secretary Baker now suggests: legislatures picked electors, just as legislatures picked Senators. Other states used popular elections, as long as your idea of "popular" means property-owning, white males over the age of 21. What was universal, though, was that they decided upon a method in advance. Now, when all states have opted for the election method, it is simply too late to change the rules.

If we go down the road I have described — a road that Baker pointed us to, and upon which the Florida legislature is poised to take the first step — the risks to the nation are immeasurable and the benefits illusory. We should let cooler heads prevail.


Craig J. Albert, a Findlaw columnist, is Associate Professor of Law at Seton Hall University.

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