GOP in Legislature Seeks Way to Give Bush Electoral Votes

Republican leaders in the GOP-controlled state Legislature are aggressively exploring options to award Florida’s 25 electoral votes to George W. Bush, even if Al Gore takes the lead after the manual recounts authorized by Tuesday night’s state Supreme Court decision.

Incensed by the ruling, Republicans are considering a special legislative session--probably as soon as next week--to seat a set of electoral college members who favor Bush, regardless of the vote’s outcome.

But the prospect of Gore gaining the lead remained very cloudy Wednesday as the vice president lost ground on one vote-counting front and treaded water on another. With the Miami-Dade County canvassing board voting to terminate its recount, and a Palm Beach County judge only modestly challenging the stringent standards used there for judging disputed ballots, Gore’s chances of accumulating enough votes to overcome Bush’s official 930-vote lead appeared to deteriorate.

What did become clear Wednesday was that even if Gore can acquire the votes he needs, key GOP leaders in the Legislature are preparing for unprecedented steps to tilt the state’s electoral votes to Bush anyway.

Legal Analysis Is Prepared

The incoming Republican speaker of the House, Rep. Tom Feeney, has readied a two-page legal analysis arguing that the Legislature could appoint its own slate of electors if it appears that the voting dispute will not be resolved by Dec. 12--the federal cutoff date for states to appoint their representatives to the electoral college.

“If there are no electors, the Legislature would have to step in and choose” some, state House Majority Leader Mike Fasano (R-Tampa) said.

Late Wednesday, Feeney said that he had spoken with a “prominent law professor”--whom he would not name--to map out options. And he condemned the state Supreme Court’s decision, insisting that the Legislature may have to step in “to help resolve the constitutional crisis . . . the court has created.”

Feeney, who was Gov. Jeb Bush’s running mate in his unsuccessful 1994 gubernatorial race, said his office had received more than 200,000 e-mails urging the Legislature to step in.

Since Republicans hold a 77-43 majority in the House, and a 25-15 advantage in the Senate, they presumably could pass legislation to install their preferred electors--although Senate leaders have been much more guarded in their comments than their House counterparts.

But any such move by legislative Republicans if Gore wins the state would escalate the confrontation in several respects. Since Gore, in that circumstance, presumably would send his own Florida representatives to Washington, Congress would be forced to choose between competing slates of electors.

But even the prospect of Republican elected officials moving to overturn a possible Gore victory--in a state where George W. Bush’s brother sits in the governor’s mansion--undoubtedly would provoke a firestorm of public controversy.

“I do not believe that it is going to be acceptable to this country for the Florida Legislature to determine the next president of the United States,” said House Minority Leader Lois Frankel (D-West Palm Beach). “Certainly the fact that [Bush’s brother] is the governor makes it potentially more disastrous for Republicans.”

If state legislative Republicans move to effectively overturn the court’s decision, the result could be “a constitutional crisis in Florida” and perhaps the nation, predicted Heather Gerken, an assistant professor at Harvard Law School who specializes in election law. “Probably not since Brown vs. Board of Education [the decision outlawing segregated schools in 1954] has there been such a risk of a decision by the judiciary being disregarded,” she said.

But one senior Bush legal advisor scoffed at that notion, insisting that a legislative intervention would be no more illegitimate than the sweeping state court ruling. “Do you mean that if you go to the elected representatives of the state it would be more tainted than the decision by the judges of the Democrats?” he asked. Six of the seven Florida Supreme Court justices are Democrats.

In his combative statement denouncing the court decision Tuesday night, Bush advisor James A. Baker III, a former secretary of State, repeatedly invited the Legislature to intervene. On Wednesday, several GOP leaders signaled that they were ready to accept his offer.

But they spent more time denouncing the state Supreme Court decision--which mandated that Secretary of State Katherine Harris include the results of manual recounts in the state’s final tally--than outlining their own plans.

In private, however, legal strategists have begun developing a detailed game-plan strategy for reversing the result if the recounts give Gore the lead--and the 25 electoral votes from the state he would need to become president.

The first step would be to convene a special session of the Legislature; that can be done if either Jeb Bush, or the speaker of the House and president of the Senate (both Republicans), jointly request one. Most observers here believe that the Legislature would have to convene by late next week to appoint new electors by the Dec. 12 deadline.

The next step pivots on an obscure section of federal law approved in 1948. That provision holds that if any state has failed to select its representatives to the electoral college “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.”

A legal analysis that Feeney’s office released Wednesday argued that those provisions would allow the state Legislature to name Florida’s electors if the voting disputes are not resolved in time. Such disputes, the analysis argues, could endanger Florida’s right to participate in the electoral college at all--thus creating a “moral duty” for the Legislature to intervene.

Legislators’ Options Could Be Challenged

“They could name the actual slate of electors, or they could reference a vote count they felt to be reliable [such as the result after the automatic recounts] and declare the election to be the one who won at that point”--in other words Bush, said one key GOP legal strategist in the state Legislature.

Whether such an initiative would withstand the inevitable legal challenge is unclear. Gerken notes that “there’s never been a case interpreting the provisions” in federal law that state House Republicans are citing.

The GOP legal strategist asserted that the Legislature could name an alternate slate even if all disputes over the result are resolved--on the grounds that the Supreme Court decision undermined state law. But he predicted that most legislators would be more comfortable linking any action to the presence of continued controversy on the Dec. 12 deadline.

Local Democrats fear Republicans are setting a two-step trap: First, they predict, the GOP will file increased legal challenges to the recounts. Then the state Legislature could use the presence of those disputes to justify appointing its own electors.

Coincidentally or not, more Republican litigation is now on the horizon. Bush’s campaign filed suit Wednesday trying to force 13 counties to include more of the overseas absentee ballots disallowed last weekend. And a top Bush legal advisor says that just as Gore went into court to compel a more permissive standard for judging ballots in Palm Beach County, Republicans may sue on the grounds that Broward County has been too permissive in its assessments.

Such a case could ultimately force the Florida Supreme Court to review the individual ballot determinations made in Broward, one of Bush’s top lawyers predicted. “Absolutely [the justices] could be up there looking at individual ballots,” he said. “Let them sow what they reap.”

In addition to these potential challenges, sources say the Bush campaign could contest the result under Florida state law if the final certification gives Gore the lead. In that procedure, the GOP could raise an assortment of allegations to argue that the race has been unfairly decided--for instance, its charge that hundreds of Floridians also may have voted in New York, or its claim that a significant number of overseas ballots were unfairly excluded.

“What I can’t imagine is there would be finality [in the results] by the 12th,” said the legislative legal strategist in a preview of what would become the justification for the state House to act.

To set this challenge in motion, however, Republicans would have to move quickly; under legislative rules, it takes five days to pass a bill through both chambers. And, if they act, GOP officials--fearful of intensifying the political controversy--want to allow the bill to become law without a signature from Jeb Bush; that would require the legislation to sit on his desk for another seven days.

No matter how Republicans structure the effort, Democrats believe that the GOP would be courting a huge backlash if it sought to overturn a potential Gore victory. “They are not picking a fight with the courts, they are picking a fight with every citizen who voted on Nov. 7,” state Senate Democratic Leader Tom Rossin said Wednesday. “Indeed, they are attacking the very essence of our constitutional government.”

Some GOP leaders appeared sensitive to such accusations. While House Republican leaders aggressively rattled sabers at the state Supreme Court, Senate President John McKay said in a statement that “it is too early” to decide whether to call a special session.

And Republican state Sen. Daniel Webster of Orlando, a former House speaker, has said the Legislature shouldn’t act until the U.S. Supreme Court rules on Bush’s challenge to the Florida Supreme Court decision. Appointing a rival set of electors before then would simply invite the state court to strike down the legislation, some Senate Republicans believe.