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Alternative Bush Endgame: Florida State Legislature Directly Appoints the Electors [Commentary]

Victor Williams, Catholic University School of Law

If the appellate courts (federal and/or state) allow either the counting of partially-punched, spoiled ballots or fraudulently-mailed, overseas absentee votes that run to Albert Gore's favor, Florida's Republican dominated state legislature should formally void the popular vote, and directly appoint the state's presidential electors. Direct legislative appointment of the electoral slate would moot all ongoing litigation and related political jockeying.

The process would be quick and transparent: The state legislature would choose to appoint either the Gore or Bush electors through a recorded, simple-majority vote. A formal voiding of Florida's popular vote would reduce concern about a conflicting national popular vote tally. The resulting electoral college victory would ensure a mandate, albeit very slim, for one of the two tickets. The crucial work of pre-inaugural transition could begin in earnest.


Ballots with double-punches, pregnant chads, swinging-door chads, tri chads, hanging chads, and dimple chads all have something in common. They are all spoiled ballots. Just read the Palm Beach County ballot instructions that were mailed to each registered voter: "After voting, check your ballot card to be sure your voting selections are cleanly punched and there are no chips left hanging on the back of the card."

The presence of any type of chad on a ballot designed to be read by an optical scan is prima face evidence of its spoilage. A voter who leaves a chad hanging on his punch ballot has been at least careless, and perhaps indolent in exercising the franchise. Voters had an ample opportunity, and must accept ultimate responsibility, to have checked their ballots.

As Florida Secretary of State Katherine Harris knew all along, and the rest of the nation is slowly coming to understand, Florida law permits county canvassing boards to determine whether the voting machines' tabulation results "correctly reflect the votes cast." A partially-punched ballot is not a "vote cast."

The initial recount proved that the tabulation machines were properly functioning. A partially-punched ballot is not a "vote cast." By attempting to rehabilitate some partially-punched ballots, the Palm Beach and other canvassing boards capriciously exceeded their statutory authority.

Indeed, by intentionally removing the hanging paper chads from ballot cards, as apparently happened in Gore-dominant Pinellas counties, election officials may have violated the very election law that they enforce. It is unclear what action would be taken against such individuals. Perhaps the prospect of being forever labeled a "chad-molester" by the late night television comics is worse than any legal penalty.

Foreign Influence and Market Uncertainty

Election officials should also be concerned about repeated complaints alleging a concerted campaign to encourage Americans living in foreign lands to fraudulently file nonwitnessed, nonpostmarked overseas-absentee ballots. If such fraudulent ballots were to control the final result in the favor of the Gore-Lieberman ticket, a full investigation and further electoral delay could result.

Little wonder that America is being ridiculed across the world. "Mickey Mouse Democracy" and "Send In the Observers" read the banner international newspaper and Internet headlines. Domestic and international markets are rightly scared of the political chaos. Scholars raise the real possibility that the election may be defaulted into the U.S. House of Representatives, where only one vote is given each state delegation. Other experts warn of an Executive Office vacancy on January 20, 2001; and Machiavellian succession scenarios abound. The joke that Bill Clinton is willing to stay in public housing for just a little while longer is no longer amusing to many Americans. Enough is enough.

Direct Appointment of the Electors

Bush supporters should recognize that there exists a remedy - outside the judicial process. The elected Florida state legislature has the authority to provide a dignified, immediate, final resolution to the state's election debacle - by directly appointing the state's electors. There are strong Republican majorities in house of the Florida legislature.

Pursuant to the U.S. Constitution and a longstanding federal law, the state legislature has a duty to so act. Article II, Section 1 of the U.S. Constitution mandates: "Each 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."

In years past, presidential electors were appointed directly by the state legislatures. Today, as always, each state legislature has the power to hold, or not to hold, a popular vote. Each state legislature determines how, or if, that popular vote is used in the appointment of electors. This appointment authority is absolute - before or after - any popular election is held.

A controlling federal statute reaffirms this duty of the state legislature. United States Code (Title 3, Section 2) states: "Whenever any state has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct."

Florida's electoral slate must be certified by December 12 for the formal electoral college vote six days later. The state legislature should prepare to act as possible following its organizational sessions scheduled for November 21, 2000.

After the new President is sworn-in next year, perhaps the nation should rethink its antiquated electoral processes. But, for now, the fate of the constitutional order, the health of the national economy, and the reputation of America around the world rests on the shoulders of the elected representatives of the Florida House and Senate.

If the courts ultimately allow either spoiled or fraudulent ballots to control the final tally, all Americans should send Florida legislature an e-message: Honor your U.S. Constitutional duty, and appoint your state's presidential electors.

November 17, 2000

Victor Williams, J.D., LL.M., teaches Lawyering Skills at Catholic University's School of Law in Washington, D.C., and adjuncts at the University of Virginia's Northern Campus.