Reply to Elhauge and Paulsen

[Richard D. Friedman]

I think Steve Griffin is clearly right.  Some points seem pretty clear to me.

        1.  The legislature had the constitutional responsibility to set the
manner of choosing the electors.  It did that, providing (like all states)
for popular election of electors.

        2.  The Constitution authorizes Congress to set the time for choosing the
electors.  It has done that by statute, 3 U.S.C. sec. 1, and designated the
date of  Nov. 7.

        3.  If Florida did not choose electors on Nov. 7, then the legislature
could step in under 3 USC sec. 2.  But there is no reason to suppose that
Florida did not choose electors on that date.  A close election that takes
a while to determine does not mean the choice was not made.  Given that
Florida did choose electors on that date, the legislature has no authority
to make a choice on another date.

        4.  By legislation enacted prior to election day, the legislature has
provided for a judicial means of finally resolving any contested elections.
  This is the contest provision now on review in the Florida S Ct from Judge
Sauls.  So long as that contest is proceeding in good order, there is no
basis on which the legislature can conclude that the state has not made a
choice.  If  that contest resulted in a final determination on or before
Dec. 12 that Gore is the winner than that result SHOULD be binding on
Congress, pursuant to the newly famous 3 USC sec. 5 (not that the House
would necessarily accept).

        5.  If the contest is resolved one way or the other by Dec. 12, there is
no basis on which the legislature can choose a slate of electors.

        6.  If the contest is not resolved by Dec. 12, then it probably becomes
appropriate for the legislature to choose a slate.  Even in that situation
it is not absolutely clear that the legislature is entitled to do this -- I
believe sec. 2 really looks to something like a hurricane.  Does anybody
know when this statue was passed?  It's not part of the 1887 statute.

        7.  If -- whether or not the legislature certifies the Republican slate
-- the state court contest results in a certification of the Democratic
slate after
Dec. 12, then we have a real mess.  An oddity is that by declaring that no
choice has been made, the Republicans undercut their best argument under 3
USC 15, which is that in default of a sec. 5 determination or agreement by
the Houses, the slate certified by the executive prevails.

Rich Friedman