Florida Legislative Action

[Conkle, Daniel O.]

Does the Florida legislature indeed have the power to act at this point, or
sometime before Dec. 18, to "appoint" the Republican slate of electors?
According to Art. II, Sec. 1, Congress may determine the time of choosing
electors, and it has done so in 3 U.S.C. Sec. 1, which states that electors
shall be appointed in each State on election day in Nov., i.e., on the 1st
Tues. after the 1st Mon.  But 3 U.S.C. Sec. 2 states that when a state has
held an election to choose electors but has "failed to make a choice on the
day prescribed by law, the electors may be appointed on a subsequent day in
such a manner as the legislature of such State may direct."

What if the Fla. S. Ct. ultimately determines that the state *did* make a
choice on election day -- the Democratic slate?  Could the legislature act
anyway?  Might we see two sets of electoral votes submitted from Florida,
and then see Congress--with a Republican House and potentially a 50-50
Senate (with Al Gore breaking ties?)--deciding which set of Florida votes
should be counted, guided by the convoluted "objection" provisions of 3
U.S.C. Sec. 15?

Dan Conkle
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Daniel O. Conkle
Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
mailto:conkle at indiana.edu
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