3 USC secs. 2, 5, 15

[Lupu, Ira (Chip)]

Here is my attempt to answer Mike McConnell:
If the Florida courts declared Al Gore the winner "notwithstanding
the law" (Mike's formulation), what response would Florida executive
officials make?  If, as we would expect, they did nothing -- i.e, they
simply left on file in Washington the certification of the Bush
electors -- then the court's ruling would produce no new electors,
and Florida would have "made a choice"  for Bush.  If these officials
withdrew the Bush certificate and transmitted a Gore electors
certification, then Florida would have "made a choice."  If these
officials did nothing and the court attempted to certify a set of Gore
electors, then Florida would have made two choices, and sec. 15
would control Congress's pick between them.  Only If, somehow, the
Bush certification was undone (withdrawn? enjoined? invalidated?)
and no new Gore certification was forthcoming from any
appropriate officials, then Florida arguably would have "failed to
make a choice"  thereby permitting the FL legislature to act under
sec. 2.
With respect to the safe harbor of sec. 5, any scenario that
produces an end to the judicial controversy and the certification of
electors by 12/12 would presumptively earn Florida's votes
"conclusive effect."  (Here there is a question whether such votes
could be challenged as having been a product of something other
than the law in effect on election day.  It appears from sec. 15 that it
would take both Houses acting by majority to reject them.)  Any
scenario that did not produce an end to the judicial controversy by
12/12 would result in loss of conclusive effect.  In that event,
Congress could accept the certified FL votes, but would not be
presumptively bound to accept them (although as I read sec. 15 --
not a model of clarity --- it would still take a majority of both Houses
to reject the FL votes if only one certification were present; this is
why FL legis action, threatening the production of two certifications,
may put the state in the more complex situation of having multiple
returns).

To put this more simply -- loss of conclusive effect under sec. 5
(because of post-12/12 controversy in the courts, or resolution not
by law in effect on election day) does not equal "failure to make a
choice" under sec. 2.  My view is that the FL legislature may act to
prevent failure to choose, but not to forestall lack of conclusive
effect.   It is impossible for the legislature to do the latter, because it
too would be acting under rules not in place on election day.

I would be curious to read the answers of others to Mike's good
question.  I am about to leave for vacation for the next 6 days, so I
will have to wait until I return to read what others have to say.  And
by then (12/14), I have a feeling we may be asking different
questions, or we may have court rulings that make Mike's question
more concrete and anchored in real-life events.


Ira C. ("Chip") Lupu
The George Washington University School of Law
2000 H St., NW
Washington D.C 20052

(202) 994-7053

ICLUPU at main.nlc.gwu.edu