Florida Legislative Supremacy

[Scarberry, Mark]

Everyone is saying that the Florida courts will ultimately decide who gets
Florida's electoral votes. But Art II, section 1 of the US Constitution
seems to place control over electoral votes not in a state's judicial
branch, but in its legislature. Thus the Florida legislature could decide
that is, as the democratically elected representative body acting for the
people of Florida, should resolve this mess.

If Gore wins Florida due to courts allowing Democratic partisans to count
dimpled chads as votes, many Republicans (and independents) will believe
Gore stole the election. If Bush wins due to a cutoff of hand recounts by a
Republican secretary of state, many Democrats (and independents) will
believe Bush stole the election. But if the Florida legislature says that
this is not a matter for the Florida judicial branch or the Florida
executive branch, but is a matter for the Florida legislature under the US
Constitution, then the legislature could perhaps resolve this in a way that
would provide maximum legitimacy.

I see several possibilities:

(1) The legislature determines that the hand recount process is unreliable
and subject to abuse, and therefore directs that the electors be chosen
based on the machine recount plus overseas absentee ballots. Many Democrats
would cry foul, so another possibility is

(2) The legislature determines that the vote in Florida is in effect a tie,
because the difference in votes will be less than the counting error or
fraud error. Thus the legislature could choose to have half the Bush and
half the Gore electoral slate become electors, which would throw the
election to Gore and which will therefore not happen in a GOP controlled
legislature. So

(3) The legislature determines that the vote in Florida is in effect a tie,
because the difference in votes will be less than the counting error or
fraud error. Thus the legislature could choose to have a nonpartisan slate
of electors chosen who would pledge to abstain. That would throw the
election into the House (for president) and the Senate (for vice president);
part of this deal could be a strong recommendation to the Senate that it
elect a vp of a different party from the party of the person elected
president--thus we would have Bush/Lieberman. Or

(4) Variation on (3): the legislature chooses a slate that is pledged to
vote Bush for president and Lieberman for vp, thus ensuring again a
Bush/Lieberman administration.

Personally I am quite worried about the potential for fraud in the hand
recounts. If the hand recounts are going to be done without clear, objective
standards (not including dimpled or pregnant chads counting as votes), then
I would be in favor of (3) or (4).

Query: does the US Constitution give the Florida legislature power to carry
out (3)(with cooperation of the US Senate) or (4)? I think so, but others
may disagree.

Mark S. Scarberry
Pepperdine Univ. School of Law