"GET THIS ELECTION RATIFIED": WHY THE FLORIDA LEGISLATURE'S APPOINTMENT OF ELECTORS WILL PROPERLY RATIFY THE CERTIFIED VOTE

By VICTOR WILLIAMS

Monday, Dec. 11, 2000

"It's time to get this election ratified": Texas Governor George W. Bush's oft-quoted request for finality now appears prescient. Bush is correct: Only a "ratification" by the Florida legislature of the vote certified earlier by Secretary of State Harris can adequately ensure that Florida's twenty-five electors will count in the electoral college.

For that reason, it's time for such a ratification to occur. As has been announced in its ongoing special session, the legislature must "ensure that Florida's voters are not disenfranchised from the 2000 presidential election."

Webster's Dictionary defines the term "ratify" as: "To make effective; to adopt or affirm with the effect of original authorization." Adopting and affirming the voters' certified will is exactly what the legislature should do now.

Ratification: A Valid Response to the Recent Florida Supreme Court Decision

In ratifying the certified vote, the legislature would be neither intervening, nor interfering, in the election. It is the Florida Supreme Court that has done these things, with Friday's 4-3 majority opinion.

That opinion, which requires manual recounts of so-called "undervotes" (ballot cards with "dimples" or other slight indentations), mandated a parallel series of unconstitutional state actions — in the form of undervote recounts in each of Florida's counties. These standardless, subjective, and partial manual recounts would violate the Due Process and Equal Protection Clauses of the United States Constitution — as Bush attorneys have forcefully argued to the Eleventh Circuit last week, and to the nation's highest court over the weekend.

Regardless of whether (and when) the U.S. Supreme Court permanently stops the latest recount chaos, the Florida legislature should proceed forward to appoint electors directly. Indeed, the legislature should do so even if Gore concedes.

The legislature should act in order to ratify the November 7, 2000, certified vote count and, equally importantly, in order to protect our representative form of government. The last word in Election 2000 should come not from appointed judges or life-tenured justices, but rather from the elected representatives of the people of Florida.

As the U.S. Supreme Court's recent decision in Palm Beach County v. Harris made clear, the U.S. Constitution vests absolute, plenary power in state legislatures to appoint electors. Further, this power may be exercised at any time, before or after any popular election.

Gore supporters have argued that in Article II, Section 1 of the Constitution, the term "state legislature" should be read to mean the broader state government, including the judiciary. Wrong. Under the Constitution, only state legislatures — not judges — are textually authorized to appoint electors. (That is just one reason why it was wrong for the Florida Supreme Court to rewrite the legislature's election laws.)

Thus, a decision by the Florida legislature to ratify the certified vote by appointing Bush electors would be easily within the legislature's power, and would be immune from judicial review. The United States Congress, similarly, would have plenary power to accept Florida's slate of electors, ratifying the certified vote, and again, judicial review would be unavailable.

Other Instances of State Legislatures' Ratification Pursuant to the Constitution

To better understand this role of state legislatures in the national constitutional scheme, it is instructive to consider the state legislatures' other duties of ratification, as set forth by the federal Constitution.

The Articles of Confederation were replaced by our original Constitution, in 1787, only with the requisite state ratification. The first Congress' proposed Bill of Rights became a part of the Constitution the same way. And later, it was only by state legislatures' ratification that the Constitution was amended to eliminate slavery and guarantee equal protection of the laws, and subsequently to expand franchise equality to women and young adults. Finally, it is only upon "the application of the legislatures of two thirds of the several states" that a constitutional convention may be called, and the product of such a Convention must be ratified by three-fourths of the legislatures.

As these examples show, our elected state legislatures do not "intervene" or "interfere" when they engage in ratification; rather, these examples of ratification are at the very heart of democratic processes. The same is true with the legislatures' appointment of electors pursuant to Article II, Section 1, of the Constitution — which can constitute another sort of ratification, this time of an election.

The Florida legislature's appointment of a electoral slate by Joint Resolution would be a constitutional, not a "legislative," act in both process and substance. Put another way, when sitting to consider the appointment of the state's electors, the Florida legislature is enacting its role under the U.S. Constitution, as opposed to its typical role in the Florida government. Accordingly, Governor Jeb Bush's signature would not be required for such an appointment to be effective, as would be the case with ordinary legislation. (This signature eventually might be welcomed for other purposes, however.)

To see why this is so, analogies to other constitutional processes performed by the legislature, for which executive approval is also unnecessary, are helpful. To take one example, the U.S. Congress does not need to seek executive approval from the President when proposing a constitutional amendment to the states for ratification. Nor does the U.S. House need the executive's signature before voting a Bill of Impeachment. Nor does the U.S. Senate need such approval before it becomes the nation's High Court of Impeachment.

In all these cases, executive approval is unnecessary — and that is because the legislature is taking on a role outside its normal legislative function, of drafting and passing statutes to regulate its citizens' conduct (which the executive then has the power to veto).

Similarly, the Florida legislature need not seek approval from Governor Jeb Bush when ratifying the certified results of a popular election by choosing a slate of electors. Again, the role of the legislature is not within its normal function, but rather within its constitutional sphere, and the executive need not participate.

Constitutional Evidence Supports Direct Legislative Appointment of Electors

During the past weeks, key Gore supporters have faulted Florida legislators for even studying their constitutional obligation — claiming they are acting "illegally" to "rig the electoral college," and even characterizing their actions as a Republican "jihad."

But the constitutional evidence is directly to the contrary. In the Federalist Papers (a compilation of op-eds written to urge the confederation states to ratify the proposed 1787 Constitution), James Madison argued that "[w]ithout the intervention of the State Legislature, the President of the United States cannot be elected at all," and that state legislatures "must in all cases have a great share of this appointment and will, perhaps, in most cases, of themselves determine it." Alexander Hamilton, also in the Federalist Papers, could have been writing from Tallahassee when he explained that the appointment of electors by legislatures was "to afford as little opportunity as possible to tumult and disorder."

Similarly, less than fifty years after the ratification of the original U.S. Constitution, Joseph Story described, in his famed Commentaries on the Constitution, how "in some States the legislatures have directly chosen the electors by themselves." And Story — a future Supreme Court Justice — defended such direct appointments as "firmly established by practice ever since the adoption of the Constitution;" although he also prophetically warned that direct appointment is often doubted by those more "ingenious minds."

George Washington was first elected when one-half of the state legislatures directly appointed their electors. In1792, he was reelected by fifteen slates of electors, nine of which had been directly appointed by the legislatures. When John Adams was elected, nine of sixteen state legislatures directly appointed electors. In the conflicted presidential election of 1800, the Massachusetts state legislature, concerned about stability, revoked its scheduled popular election and voted to appoint its electors directly. South Carolina's legislature continued direct appointment of electors until 1860, and Florida's legislature used the direct appointment method without controversy in 1868. As late as 1876, Colorado's legislature directly appointed its state's presidential electors.

Consider, too, Chief Justice Fuller's opinion for the Supreme Court in McPherson v. Blacker, which states, in pertinent part, that "the legislature possesses plenary authority to direct the manner of appointments, and might itself exercise the appointing power by joint ballot or concurrence of the two houses." The Blacker analysis is directly applicable to Florida's election debacle, as Fuller framed "the question before us [a]s not one of policy but of power."

It is true that no state legislature has directly appointed electors in this century. That circumstance, however, does not derogate that fact that the U.S. Constitution clearly vests state legislatures with the authority to do so. Indeed, the U.S. Supreme Court's opinion of December 4, 2000, relying heavily on McPherson, affirmed that state legislatures have plenary power over electors, "by virtue of a direct grant of authority made under Art II, cl. 2, of the United States Constitution."

In Favor of A Partisan Legislature

Our nation is a Republic. That means, among other things, that final decisions on matters of the greatest importance should be made, in accordance with the Constitution's text, by elected representatives, not un-elected judges.

It is no surprise that these representatives, elected by citizens who are partisan, should themselves also be partisan; that's what it means to represent your constituents. Thus, the term "partisan" itself — while meant as an insult by Democratic commentators — should be embraced by the Republican legislature.

The people of Florida made a partisan choice in 1996 when they threw out a Democrat legislature majority for the first time in 120 years. Elections count. So, too, do properly cast votes.

The Constitution's founders were truly serious about representative government, even if our contemporary elites are not. So, as soon-to-be President-Elect George W. Bush says, "get this election ratified."


Victor Williams, a FindLaw contributor, teaches law at the Catholic University's School of Law in Washington,D.C., and is an adjunct professor at the University of Virginia’s Northern Campus. He holds a J.D. from the University of California–Hastings and LL.M. from the Columbia University Law School. Professor Williams can be reached at victorkeithwilliams@yahoo.com .

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