3 USC secs. 2, 5, 15

[Richard D. Friedman]

In belated response (it's been a busy day) to this interesting question of
Mike's:  I suppose there comes a point at which the procedure before the
lawfully designated tribunal becomes so lawless that Congress would be
within its rights in determining that it was not the method prescribed
before the election for the final resolution of the contest.  And maybe
Mike's extreme hypothetical reaches this point, given the explicit asserton
of lawlessness by the FL S Ct.  But I think we have to be very careful
about reaching this result.  The whole point of sec. 5 was to give the
state a way before the election of creating a mechanism that would operate
in the course of a disputed election (for otherwise there's no need for it)
and provide a final resolution that would be respected by Congress.  So I
think we have to avoid interpretations that would allow the safe harbor to
be destroyed by any contention that irregularities were committed by the
tribunal designated for this final dispute resolution.  In a disputed
election there will probably always be some such contentions that could be
made.

Rich Friedman


At 10:48 AM 12/8/00 -0700, you wrote:
>Suppose the Florida Supreme Court says something like "notwithstanding the
>law, we think that Candidate X would be the best President, and since the
>election was so close, we are going with that." Do Rich Friedman and others
>think the legislature is unable to step in at that point and say that no
>candidate was chosen in accordance with prior enacted law? And is it also
>their position that under the "safe harbor" principle, Congress would be
>forced to accept the court's choice? (And please, I am not accusing anyone
>of saying this; I am just trying to understand the limits, if any, to the
>various positions being espoused.)
>
>Michael McConnell
>University of Utah College of Law
>332 South 1400 East Rm. 101
>Salt Lake City, UT 84112
>
>
>> -----Original Message-----
>> From: Richard D. Friedman [mailto:rdfrdman at UMICH.EDU]
>> Sent: Friday, December 08, 2000 8:36 AM
>> To: CONLAWPROF at listserv.ucla.edu
>> Subject: 3 USC secs. 2, 5, 15
>>
>>
>> Thanks to Kenneth Katkin for tracking down the history of 3
>> USC sec. 2.  It
>> clearly supports Tribe's assertion that the purpose of the
>> legislation was
>> to ensure that a state that had a majority requirement could have a
>> post-election-day runoff system.  The statute is ambiguous
>> when it says
>> that if no choice has been made on election day the electors may be
>> appointed on a subsequent day "in such a manner as the
>> legislature of such
>> State may direct."  Does that mean that the legislature
>> should be able to
>> direct post-election, or only that it may prescribe
>> pre-election how the
>> run-off should be made?
>>
>> In any event, I think Einer Elhauge is clearly wrong when he says that
>> Florida is in danger of losing its electoral votes if the legislature
>> doesn't step in.  Florida has a procedure that complies with
>> 3 USC sec. 5
>> -- the contest procedure now on appeal to the FL S Ct.  If
>> that procedure
>> results in a determination by Dec. 12, one way or the other, it is
>> conclusive.  The whole point of the 1887 statue, it seems to
>> me, was to
>> give the state the chance to create pre-election a procedure
>> that would
>> allow Congress to treat the state as a black box, saying, "We
>> don't know
>> what all the ruckus was about, but you have provided a final dispute
>> resolution mechanism and it has produced a result that we
>> accept."  It is
>> possible -- though decreasingly so with each hour, I guess --
>> that by Dec.
>> 12 that process will yield a determination that Gore is the
>> victor, and of
>> course that is not the result that the legislature would
>> like, but it is
>> one that the legislature should accept.  Even if the state
>> fails to take
>> advantage of sec. 5 because the contest proceeding is not
>> concluded by Dec.
>> 12, that still does not mean that FL loses its votes; sec. 15
>> provides the
>> procedure for Congress to determine which slate prevails, and
>> in the case
>> of disagreement of the Houses the slate certified by the
>> executive under
>> seal prevails.  There's no role for the legislature.
>>
>> Rich Friedman
>>