3 USC 2 & 15

[Edward Hartnett]

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

> As to Section 15 and its tie-breaker default rule, consider the
> following possibility:  the Florida executive branch certifies *both* sets of
> electors--the Democratic set pursuant to the final result of the state
> courtlitigation (and perhaps under direct order from the Florida S. Ct.),
> but also the Republican set pursuant to new Florida legislation requiring
> theexecutive branch to so act.  Pursuant to Section 15, the House accepts
> theRepublican set of electors and the Senate accepts the Democratic set.
> No tie-breaker.  What then?
>

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The closest precedent seems to be the Hawaii electors in 1960.  According to
Josephson & Ross, Repairing the Electoral College, 22 J. Legis. 145 n. 154, the
Republicans electors were certified by the Governor on November 28, 1960, but
the AG ordered a recount on December 13.  Both set of electors met on December
19, and cast their votes.  On December 30, the Hawaii court decided that the
Democratic electors had won, and the newly-elected governor so certified.

When the House and Senate met to count the votes, the presiding officer was
none other than Republican candidate Richard Nixon.  He accepted, without
objection, the January 4 certification.  It did not make any difference to the
election.

I haven't gone back to read the Congressional Record, 107 Cong. Rec. 288-91
(1961), but this precedent seems tantalizingly ambiguous.  Was the later
gubernatorial certification controlling because it was later, or because it was
in accordance with the judicial decision?

Ed Hartnett