Bush v. Gore

[Bryan Wildenthal]

I am replying late to Sandy's posting, so my apologies if this duplicates
anything someone else has said or is otherwise anachronistic, but:

I agree the Bush v Gore per curiam's reference to a state legislature's
ability to "resume at any time" its power over choosing presidential
electors was unwise, and is likely to be misused by those adhering to the
Elhauge school of argument on which the Florida Legislature relied in coming
close to asserting the power to choose Florida's electors itself.

But quite obviously, it would be a "misuse."  The Court's dicta need not,
and should not, be read to endorse the plainly illegal course of action
contemplated by the Florida Legislature in Nov.-Dec. 2000.  The "power"
referred to, which the Court said the state legislature may "resume at any
time," is *not* the power to actually exercise a choice of presidential
electors (what the Florida Legislature came close to asserting).  It is the
power to *direct the manner* in which electors are chosen.  The legislature
may obviously amend the rules on that "at any time," including by assuming
or "resuming" a policy of giving itself the power to do so.  But the ability
to "resume at any time" the power to choose presidential electors quite
obviously does not (and cannot, given Congress's constitutionally and
statutorily reserved power over *timing*) include the ability to actually
*exercise* that power "at any time."  The timing of the exercise of the
power is governed by Congress, and under current law must be on election
day, unless (as Congress has by law provided) there is a failure to make a
choice on election day, which (for reasons others have exhaustively
canvassed) did not happen in the 2000 Florida election.

In sum, of course a state legislature may "resume at any time" the power to
choose presidential electors.  That simply means the state legislators may
"at any time" pass a law restoring to themselves the power of choice, which
they may then exercise at the next available opportunity, i.e., the next
presidential election day as determined by Congress pursuant to *Congress's*
power over the timing of the choice.  In no way, shape, or form, does the
Constitution, federal law, or the unwise Bush v. Gore dictum under
discussion, support the Florida Legislature's attempt in Dec. 2000 at
lawlessly and retroactively tinkering with the outcome of a past
presidential election.

Bryan Wildenthal, Thomas Jefferson School of Law


> -----Original Message-----
> From: Sanford Levinson [mailto:SLevinson at MAIL.LAW.UTEXAS.EDU]
> Sent: Saturday, December 30, 2000 10:24 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Bush v. Gore
>
>
> Steve Siegel's interpretation of the impact of 3 USC 1 seems
> completely
> right.  And, of course, one assumes that the statute is
> plainly legal under
> Congress's assigned power to establish a uniform day for "chusing"
> electors.  But this does call for an obvious interpretive gloss on the
> flamboyant sentence that the Court quotes: "There is no doubt
> of the right
> of the legislature to resume the power at any time, for it
> can neither be
> taken away nor abdicated."  And I think the Fried-Elhauge
> argument rests,
> at bottom, on just such a "plenary" view of legislative power.
>
> sandy
>