3 USC 2 & 15

[Edward Hartnett]

1) Does anyone have any idea the kind of situations Congress had in mind in
enacting 3 USC 2?  Political upheaval?  Natural disasters?  Technological
failures?  Uncertainty about the outcome?

2) The objection procedures of section 15, as applied to a case of returns from
competing sets of electors, set the default rule as the slate certified by the
state _executive_.  I believe that this is in keeping with the practice of the
Electoral Commission established to resolve the 1876 election, at least as to
the southern states.  (A central problem in 1876, I believe, was that there was
no pre-existing statute establishing a default standard.) Under the statute,
the slate certified by the state executive stands unless both houses determine
otherwise.

If the Florida executive certifies the Bush slate, would the House uphold an
objection and reject that slate? If the Florida executive certifies the Gore
slate, would the Senate would reject that slate?  (I don't think that there is
any need to resort to Gore as tie-breaker, because a tie-vote on an objection
means that the objection is rejected.)  Of course, since both houses would be
sitting as judges, I would hope that they would not simply vote according to
party affiliation.

Does Mark Scarberry think that section 15 is unconstitutional insofar as it
looks to the certification by the state _executive_ rather than the state
legislature?  Does that mean that the method chosen to resolve the 1876
election was not simply extra-constitutional, but that the rule chosen to
resolve the contest was itself unconstitutional?

Ed Hartnett


Quoting "Conkle, Daniel O." <conkle at INDIANA.EDU>:

> 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
> * * * * * * * * * * * * * * * * * * * * * * *
> 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
> * * * * * * * * * * * * * * * * * * * * * * *
>