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When There Is No Winner to Take All:
Salvaging Political Legitimacy by Splitting Florida's Electoral Votes
[Commentary]

Professor Stephen Clark, Albany Law School

The apparent inclination of the Florida legislature to intervene in the presidential election dispute and assert its power to independently choose the state's electors is troubling. This is so not because the legislature lacks the constitutional authority to do it, nor because a political settlement is necessarily a bad idea. The problem is that the particular legislative intervention proposed--having the Republican-dominated legislature hand the state to the Republican candidate with only partisan regard for the intent of the voters--may well destroy what little political legitimacy this election still has.

Quite arguably, the Florida legislature may have the constitutional authority to independently choose the state's electors. State legislatures did precisely that during the early years of the Republic. Indeed, the Constitution permits--and actually seems to require--that each state appoint electors "in such Manner as the Legislature thereof may direct." U.S. Const. art. II, ァ 1, cl. 2.

Today, however, a state legislature lacks the political authority to make the choice of electors in disregard of the statewide popular vote. Since before the Civil War, state legislatures have universally delegated that power to the voters. In the intervening century and a half, the notion of a "right to vote" has become as firmly embedded in the consciousness of the American people as has the freedom to speak. As our society's respect for the right to vote has grown, restrictions on access to the ballot have fallen, and the right is so highly esteemed that it has been the subject of no fewer than six constitutional amendments since Reconstruction, including one that stripped state legislatures of an analogous power to elect Senators. See U.S. Const. amends. XV, XVII, XIX, XXIII, XIV, XVI.

Consistent with this trend has been the emerging belief of the American people that the choice of president, or at least of presidential electors, should be made by them at the ballot box. Indeed, since the rise of Jacksonian democracy, allowing the people to choose the president has become a kind of constitutional norm. Constitutional law may allow the Florida legislature to do what its Republican majority proposes, but longstanding constitutional custom will not so easily bend to that will. Although that custom may be enforceable more in the courts of public opinion than law, in this instance that may be the more important forum.

That said, there may nonetheless be sound reasons for a political settlement of the election dispute in Florida. In addition to achieving a quicker and possibly more satisfactory resolution than litigation may provide, a settlement could protect the integrity of the judiciary, which finds itself in a somewhat awkward position. The legal questions, already complicated, are made tougher by the added burden of adjudicating them after the votes have been cast, with a presidential election hanging in the balance, and under a December 12 sword of Damocles.

For a judge to rule in favor of the candidate of his or her own political party runs the serious risk of fomenting partisan criticism and stirring public suspicion, which, in such a high-profile matter, could sharply undermine confidence in the judiciary. Although the Florida Supreme Court tried to minimize any appearance of partisan bias in its first decision by relying on longstanding precedents, invoking settled maxims of statutory interpretation, and issuing a unanimous opinion, such legal niceties are largely lost on the public. What many ordinary citizens saw, with the aid of GOP spin, was an all-Democrat court assisting a needy Democratic candidate.

A political settlement could forestall the need for adjudication of the difficult legal questions, but preempting a Democratic court from ruling for a Democratic candidate would hardly salvage political legitimacy if it were done by having a Republican legislature simply anoint a Republican candidate. What goes around surely comes around, and a legislator's decision making lacks even the colorable defense to allegations of partisan bias that judicial procedures and ethics give a judge. It also does not help matters that the governor happens to be the candidate's brother.

The Florida legislature could perhaps defend its intervention--against the claims of both partisanship and usurpation of a customary right of voters--if it were seen as merely trying to bring the process to a close by quickly and simply ratifying the clear will of the people. The problem, however, is that appointing a full slate of Bush electors just cannot be viewed as ratifying any clear choice of the voters.

There simply is no clear choice of Florida voters in this election. As should now be apparent to everyone, the winner in Florida depends, in significant part, upon how lenient or restrictive one is in counting ballots that cannot be counted by machine. A lenient standard probably gives the state to Gore, a restrictive one probably gives it to Bush. This reality has been clear to both campaigns for weeks now--hence the Republican assault on the very notion of manual counts and the Democratic drumbeat to "count every vote."

Given the reality that the selection of a counting standard is determinative, it has now become very difficult, if not impossible, for anyone to set a neutral standard for counting those votes. In essence, because Florida law previously established no clear counting standard and because it is all but impossible to legitimately establish one now, the Florida vote-counting system necessarily manifests a significant margin of error within which a winner simply cannot be determined to the reasonable satisfaction of both sides. Ironically, the blame for that lies squarely with the Florida legislature itself, for although the problem is part technological, it is also part legal in that Florida--unlike Texas--utterly failed before the vote to adopt a clear rule to address the technological limitations of the counting machines.

The race between Bush and Gore in Florida has unfortunately fallen into the margin of error and is, for all intents and purposes, legitimately indeterminable. If the Florida legislature wanted to intervene to end the litigation and resolve the race by ratifying the will of the voters, it cannot now legitimately do so by picking a counting standard and declaring either candidate the winner. Because Florida had not previously specified the rules for counting machine-uncountable votes in an election this close, the result is now a techno-legal tie.

Although there remains merit to the idea of a political settlement, a truly legitimate settlement would be one in which the legislature ratifies the will of the people--to the extent that will is fairly ascertainable. Given the indeterminacy in this election, however, the only legitimate option for the Florida legislature now is to somehow ratify the techno-legal tie. The state lacks sufficient information about the will of the people to award either candidate a clear victory. There simply is no ascertainable winner to take all.

But surely the Florida legislature could not be attacked for "stealing" the election or usurping the will of the people if it threw up the state's hands and split the state's 25 electoral votes between Bush and Gore. After all, nothing in the Constitution or federal law requires that Florida痴 25 electoral votes be awarded on a winner-take-all basis. Two states, Maine and Nebraska, use a different rule as part of their regular process for appointing electors, and in 1960 Alabama split its electoral votes almost evenly between two presidential candidates. If the Florida legislature awarded, say, 13 electoral votes to Bush and 12 to Gore, it could not be attacked as partisan and could fairly claim the voter-protection mantle that it is only disingenuously taking up today.

Of course, such a Solomonic solution would make Gore the next president by a likely electoral vote count of 279 to 259. But that result is perfectly justifiable. Gore would win with almost any split of Florida's votes because Bush otherwise trails Gore by a sufficiently large margin that he must have virtually every one of Florida's electoral votes in order to pull off his centurian upset of winning the electoral college while losing the national popular vote. Political legitimacy would hardly decry avoidance of that potential anomaly.

In the end, intervention by the Florida legislature could go down in history as an honorable act of great statesmanship, or it could be remembered as a disastrous act of lowly partisanship. Sadly for the country, the Florida legislature appears poised to embrace the latter.

December 1, 2000

Stephen Clark is an Assistant Professor of Law at Albany Law School. He welcomes comments at JURIST@law.pitt.edu