{"id":53367,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/the-coming-wars-in-name-your-state.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"the-coming-wars-in-name-your-state","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/the-coming-wars-in-name-your-state.html","title":{"rendered":"The Coming Wars In (name Your State)"},"content":{"rendered":"\n
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THE COMING WARS IN (NAME YOUR STATE): HOW JESSE VENTURA COULD CHANGE THE RESULTS OF THE PRESIDENTIAL ELECTION<\/h1><\/td>\n <\/tr>\n

By CRAIG J. ALBERT<\/h2><\/a><\/td> <\/tr>\n

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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” \u0097 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\u0092s legislature to override the results of that state\u0092s Presidential voting when it selects electors, by stating that “Each State shall appoint, in such manner as the Legislature thereof may direct<\/i>, a Number of Electors . . . .” (emphasis added). <\/p>\n\n\n\n\n\n
<\/td>\n\n\"[election]\"<\/td>\n\n<\/tr>
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Last weekend, Florida\u0092s House majority leader, Mike Fasano, took up Baker\u0092s challenge. But while Fasano\u0092s action may help Bush, it could also open up quite a can of worms and introduce chaos into electoral voting. For not only Florida\u0092s legislature, but also every single one of the fifty states\u0092 and DC\u0092s, could then take over the choice of electors and override its citizens\u0092 votes, if it so chooses. Florida has started what could be a national chain reaction.<\/p>\n\n\n\n<\/b>

A Chain Reaction of Rebellious Legislatures? <\/p>\n\n\n\n

Republicans control both the House and Senate in Florida, and they have proposed a new legislative session in which the legislature appoints the electors \u0097 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.<\/p>\n\n\n\n

But wait a second. Florida might not<\/i> act alone. Democrats enjoy a comfortable margin of control in West Virginia\u0092s two houses, so although a majority of the state\u0092s 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. <\/p>\n\n\n\n

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.<\/p>\n\n\n\n<\/b>

The Governors Might Step In, Too<\/p>\n\n\n\n

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. <\/p>\n\n\n\n

Not so though, with Oregon\u0092s Democratic governor \u0097 or with the Republican governors of Arkansas, Louisiana, Oklahoma, Tennessee and West Virginia \u0097 who would now be asked to certify electoral votes for the other party\u0092s 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? <\/p>\n\n\n\n\n\n\n

\n\nWhose views will win out? A federal statute, 3 USC \u00a7 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\u0092s certification that rules the day. <\/p>\n\n\n\n

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. <\/p>\n\n\n\n

At this point, I can\u0092t 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\u0092s or the voter\u0092s choice, would become the ultimate kingmaker.<\/p>\n\n\n\n<\/b>

The Democrats Win the Presidency and<\/i> the Senate<\/p>\n\n\n\n

It gets even wackier. Suppose Ventura crowns Gore the new President, and Lieberman accordingly becomes Vice-President. It\u0092s been generally agreed that in that case, Connecticut\u0092s 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\u0092ve described above. <\/p>\n\n\n\n

The argument that Rowland would have appointment power derives from the Seventeenth Amendment, which says that <\/a>“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.” <\/p>\n\n\n\n

If one believes, as James Baker says he does, that Article II\u0092s 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\u0092 Senate choices. If the legislature “may empower the executive” to fill vacancies, may it not also take that power away? <\/p>\n\n\n\n

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\u0092s Senator. Who would win? My money is on the Democratic Attorney General, Richard Blumenthal.<\/p>\n\n\n\n<\/b>

But Was Baker Correct in the First Place? <\/p>\n\n\n\n\n\n\n

When the Constitutional Convention devised the Constitution\u0092s election rules in 1787, the word “legislature” referred not just to a state\u0092s 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 \u0097 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.)<\/p>\n\n\n\n

Moreover, Baker\u0092s interpretation of the Constitution is so potentially destructive of our fragile system of government that it\u0092s 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\u0092t 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.)<\/p>\n\n\n\n

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<\/i>. Now, when all states have opted for the election method, it is simply too late to change the rules. <\/p>\n\n\n\n

If we go down the road I have described \u0097 a road that Baker pointed us to, and upon which the Florida legislature is poised to take the first step \u0097 the risks to the nation are immeasurable and the benefits illusory. We should let cooler heads prevail.<\/p>\n\n\n\n<\/span>\n\n\n\n

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\n\n\n\n\n\nCraig J. Albert, a Findlaw columnist, is Associate Professor of Law at Seton Hall University.\n\n <\/p><\/div>

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