IT'S TIME TO TAKE OUR ELECTION BACK FROM LAWYERS AND JUDGES: FLORIDA'S LEGISLATURE SHOULD APPOINT THE ELECTORS - PART II

By VICTOR WILLIAMS

This is Part Two of a two-part series by Professor Williams on the law governing election developments. Part One, which appears separately in Writ, urged the Florida legislature to moot current court contests by appointing electors directly, and explained the constitutional authority for the legislature's so doing. Part Two considers how the Framers settled on the current Presidential election system, and considers what may happen if, under that system, the election moves to the House and Senate. -- Ed.

In the founding years of the Republic, presidential electors were directly appointed by the state legislatures. In more recent times, state legislatures have continued to determine how, or if, a popular election is used to appoint electors. As explained in Part One of this piece, they have full constitutional and statutory authority to do so. Moreover, their electoral appointment discretion is absolute - and may be exercised before or after any popular election is held.

Thus, with respect to the present election controversy, it is ultimately Florida's elected representatives, not the courts, who are empowered to provide a dignified, immediate, final resolution. The elected Florida legislature may, by simple majority vote, appoint a slate of electors, and it should do so.

The direct appointment of the electors would end much of the current litigation immediately. No state or federal judge would likely dare enjoin the state legislature from this exercise of textual authority under the U.S. Constitution. And if one did so, the judge would not, and should not, be taken seriously, and the electoral votes should be sent to Congress regardless.

A Televised Debate In the Legislature Is the Way to Go

The Florida Legislature has just completed its organization session, which was broadcast live on national television. Now the legislature should prepare to set the stage to conduct a straightforward, transparent process for appointing the state's electors. An open, televised debate that gives all elected state representatives a full opportunity to present their views on the election would be healthy for the state and the nation. Indeed, it would be cathartic. And Speaker Thomas Feeney has both the requisite skill and steely spine to preside over this momentous constitutional event.

Important procedural questions should be debated and resolved first. For example, the legislature should decide whether, in its view, a simple majority vote, choosing either the Gore-Lieberman or Bush-Cheney slate of electors, would require the Governor's signature to become effective. The better answer is no. The exercise of this legislative authority is analogous to Congress' passage of a proposed constitutional amendment, which does not need the President's signature to be sent to the states for ratification.

Why the Framers Gave the Legislature the Right to Slate Electors

The United States Constitution makes its permanent home in Washington, D.C., in the national archives. For three days this fall, on the 213th anniversary of the document's signing, page 2 of the original U.S. Constitution, on its animal-skin parchment, was brought up from its underground concrete and steel vault and made available in a new space-age glass encasement for a rare public viewing - the first in a dozen years.

Display of the genuine Article II, delineating the selection process, authority, and oath of office for the President, could not been more timely. Indeed, the Article is the ultimate amicus brief that can be offered to help decide the partisan conflict, end the litigation, and calm public anxiety regarding Florida's election debacle - for it makes it clear that only the Florida state legislature has the legitimate authority to end the election debacle. Specifically, it mandates that "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives."

The bipartite process created by the Framers of the Constitution for selecting the President was one of the most divisive of all issues before the 1787 Philadelphia Convention. Southern delegates forcefully argued for the Virginia Plan, a system for selection of the executive by the national legislature, while Northern delegates extolled the virtues of direct election with equal passion. Ultimately, 60 ballots were taken before the present election system was adopted.

The idea of a direct election of the President was especially disturbing to those southern delegates who represented states having large numbers of "nongentry" and who were fearful of direct democracy. Virginia's George Mason asserted that allowing some people he knew to elect the President would be as "unnatural ... as it would, to refer a trial of colours to a blind man." South Carolinian Charles Pinckney warned about the "incompetence" of some individuals to make such an important vote - an argument that curiously echoes contemporary concern that the butterfly ballot was too confusing for some voters, and contemporary arguments that voters weren't smart enough to be expected to heed clear instructions to punch the ballot cleanly.

The vigorous debate continued on and off until August, when a committee was established to settle those issues that the Convention, as a whole, had failed to resolve. With James Madison's guidance, the committee created the electoral college and the House/Senate default systems as a compromise solution.

The electoral college allowed each individual state to select a number of "electors" equal to the total number of its national representatives and senators. Individual state legislatures could determine how to choose electors, and the basis on which those electors could vote, and that is still the system we have today.

An Alternative Scenario: The House Chooses the President

Fast forward to January 6, 2001, when pursuant to federal statute, the U.S. Congress will meet in joint session formally to open the sealed electoral certificates, which will have been sent in from each state capitol to the President of the Senate, Albert Gore, Jr. (Duplicate copies will have been sent to the National Archives for safe-keeping). Several important scenarios could develop.

If the Florida Legislature shuns its direct appointment duty and allows court rulings to result in a Gore victory, Florida's slate of electors may well be, and should be, contested in Congress. Of course, the right of member-contest is a two-edged sword and may be used by both sides of the building and both sides of the congressional aisles. As such, it is not to be undertaken lightly. But, if the Republicans have learned anything in this election, it should be that they better be willing to fight just as hard and risk it all just as committedly as the Democrats. . If, following such a contest, Florida's electoral votes were expelled, as they should be (or if the debacle in Florida continues past when the electoral votes are due to be certified), no candidate will have the requisite majority - 270 of the 538 electors. (The correct denominator is indeed fixed at 538. The Democrats' "sliding majority" thesis - that the denominator would be reduced by 25 if Florida fails properly to appoint and send its 25 electors - is clever, but specious. The records of the 1787 Constitutional Convention clearly indicate that the Framers did not intend this. Otherwise, states could strategically abstain, and increase their state's influence by decreasing the denominator.)

If no candidate has a majority of the 538, the presidential selection choice moves to Congress. Under the current Constitution, the 435 House members, sitting in state delegations, select the President from among the top three candidates by casting one vote per delegation. (Although the District of Columbia was granted three electoral college votes by the 23rd Amendment, its "delegate" would be given no vote in the House selection of the president.)

The talents of House leadership on both sides of the aisle would be tested as factions and fractions bargained away in each delegation. Majority Whip Tom Delay would "hammer out" a compromise among factions of representatives that would, in the end, name the President of the United States. Since the House is Republican, the choice would surely be Bush. And the result would be far from undemocratic. To the contrary, it would simply be an exercise of representative - rather than direct - government. Often decisions accomplished through representative deliberation are better than those that result from referendum.

Meanwhile, in the Senate, the Vice-President is selected from among the top two electoral vote recipients with each senator having one vote. With a 50-50 senate split, would the presiding Vice-President break the tie? Would both Senator Joseph Lieberman and Albert Gore vote for Joseph Lieberman? Or, would each do the honorable thing, and vote for Cheney if the House were to elect Bush? Perhaps the Vice-President should not have a vote in such a situation.

A Constitutional Amendment Might Result

Would the Constitution be harmed by the spectacle of these processes? Certainly pundits will say so. But the documents could just as well be protected. Grand and fractious C-SPAN theatre would ensue, but that would only fulfill the Framers' blueprint for a republican, representative process.

In addition, the House and Senate processes would place an important national issue squarely on the table for debate: whether the current electoral-college-plus-House/Senate-default system should be replaced, via Constitutional amendment, by a direct popular election process.

Although the Framers enshrined the current system in the Constitution, they also provided for Constitutional amendment through Article V - knowing their summer effort to form a more perfect union might turn out to be less than perfect. We should honor their plan by ensuring that any change in the Presidential election process comes not through court litigation, but by a constitutional amendment that results from representative government.


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.

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