"Majority of ... Electors appointed"

[Scarberry, Mark]

When the 12th amendment refers to a "majority of the whole number of
Electors appointed" as being necessary to election of a president, what does
it mean for an elector to be appointed? Are no electors appointed from
Florida if none are certified as being appointed? Or were electors appointed
from Florida on Nov. 7, but we just don't yet know who they are? Article II,
section 1, says that "The Congress may determine the Time of chusing the
Electors," which I suppose was Nov. 7. Thus at least a strong argument may
be made that Florida did choose electors on Nov. 7 whether or not the
particular electors chosen are certified by the time the electoral college
votes or the time the Congress opens the envelopes to count the electoral
votes. That would suggest that 270 electoral votes are required to be
elected, even if the Florida electors can't be identified.

This would at least give Florida a vote for president by way of its
Congressional delegation if its electors are not identified and if neither
Bush nor Gore have 270 without Florida's electors. Unless the results in
Oregon or Wisconsin change, this would be to Bush's benefit, and I will
admit to being partial to his candidacy. How do others, including those who
support Gore, evaluate the argument that 270 electoral votes are needed even
if less than 540 electors are certified?

Mark S. Scarberry
Pepperdine Univ. School of Law