Florida Lawmakers Cite Broad Power to Award Electors to Bush

Amid rising partisan tensions, the Republican majority in the Florida Legislature moved closer Monday toward an unprecedented effort to directly award the state’s 25 electoral votes to George W. Bush.

In legal papers filed with the U.S. Supreme Court, the Legislature asserted broad authority to allocate Florida’s electoral votes even if the state courts order further recounts of presidential ballots that could give the lead to Democrat Al Gore.

Speaker of the House Tom Feeney and Senate President John McKay, both Republicans close to Gov. Jeb Bush, signaled Monday that a special legislative committee meeting for the first time today would examine the Legislature’s authority to appoint its own slate of electors.

“If this controversy is . . . unresolved by Dec. 12, the Legislature has the authority and may have the responsibility to step in,” said McKay, who represents a Tampa, Fla., district.

Using even stronger language, Feeney--who served as Jeb Bush’s running mate in his unsuccessful 1994 gubernatorial bid--insisted that the Florida Supreme Court had usurped the authority of the Legislature by permitting counties to conduct manual recounts through Sunday. He strongly hinted that the Legislature may move to name its own electors if the state courts don’t quickly dismiss Gore’s formal contest against Secretary of State Katherine Harris’ certification of George W. Bush as the official winner in the state.

“I do not want to be the House speaker who presides over the undermining of the legitimate powers and authority of the Florida House,” Feeney said.

Feeney offered only one hypothetical that might cause the Legislature not to appoint its own slate of electors: a U.S. Supreme Court decision overturning last week’s Florida Supreme Court decision and reinstating Harris’ effort to certify Bush as the winner on Nov. 14.

These signals from Republican leaders drew a sharp rebuke from Democrats. House Minority Leader Lois J. Frankel from Palm Beach, Fla., sent Feeney a sternly worded three-page letter Monday denouncing the Legislature’s move toward intervention in the presidential race.

“The State Legislature should not become an arm of any one presidential campaign,” she wrote. “We believe surrendering the independence and integrity of this great institution in this fashion would place a dark partisan stain on our Legislature.”

Democrats, though, can do little more than complain: Republicans hold a 77-43 majority in the state House and a 25-15 advantage in the Senate.

In effect, the Legislature could be steaming toward a historic confrontation with the state courts. Under the formal contest to the election result that Gore filed Monday, state courts will determine whether to authorize further recounts that could give the vice president the lead in Florida--and thus possibly the 25 electoral votes he needs to win the presidency.

No state legislature has ever voted to authorize a slate of electors to compete with those chosen in a popular vote.

But in a brief they jointly filed with the U.S. Supreme Court on Monday, the Florida Senate and House aggressively claimed the constitutional power to do just that.

The brief argues that federal law gives the Legislature broad power to name its own slate of electors. It offers two distinct justifications for such a move: if the legal controversies surrounding the election are not settled in a “timely manner” or if the Legislature determines that the state court decisions effectively rewrote the rules for allocating Florida’s electors after election day.

In a sweeping assertion of authority, the Legislature argues that the “Legislature itself, and not the courts,” can determine when the state has failed to make a “timely” choice of its electors. Most often, legislators have suggested that they would act only if lawsuits challenging the Florida result are still unresolved on Dec. 12, the legal deadline for settling a state’s electoral college representation. But legislative aides say the language in the brief means the Republican majority believes it has the constitutional right to appoint its own electors even if all litigation is settled before then.

And, trying to preempt further challenges, the Legislature asserts in the brief that Congress has no right to object to any slate of electors it might appoint, presumably even if the recounts produce a competing slate of electors for Gore: “Congress has a constitutional obligation to count the votes of any elector who was indisputably appointed by the Legislature,” it argues.

Even more strikingly, the brief argues that if the U.S. Supreme Court says that the Florida Supreme Court was within its authority to extend the deadline for manual recounts, the Legislature could still decide the state court overstepped and use that to justify appointing its own electors.

Echoing the argument Bush has made to the Supreme Court, the Legislature maintains that not only last week’s state Supreme Court decision, but the shifting standards used in those recounts, violated a federal law requiring that all disputes over a state’s electors be governed by laws enacted “prior to” election day. And that, they argue, would justify the Legislature’s naming its own electors.

On Monday, House Majority Leader Mike Fasano, a Republican from outside of Tampa, brushed aside suggestions from Democrats that if the Legislature acted, it should split the electoral votes evenly between Bush and Gore--a move that would give Gore an electoral college majority. “It is winner take all,” Fasano said. “And Bush being the winner is allowed to have the 25 electoral votes.”

To intervene in the presidential race, the Legislature would have to convene in a special session; McKay and Feeney can order such a gathering with a joint request. But the clock is ticking: Legislative procedures require five days to pass a bill through both chambers. And if the Legislature wants the bill to become law without Jeb Bush needing to sign it--as many Republicans prefer--it must sit on his desk for seven days.

Under that scenario, the Legislature would have to start work by the end of this week to meet the Dec. 12 deadline for selecting the state’s electors. It could start later if it appointed electors through a joint resolution, which would not require Bush’s signature, or if Bush signed a bill giving the state’s electors to his brother--as Senate President McKay said Monday he would prefer.

“I think we all need to stand up and take responsibility for our actions,” he said.

The legislative process will begin today with the first hearing of a special 14-member committee Feeney and McKay appointed last week to “address voting irregularities.” After initially signaling that the committee would conduct a broad investigation of election disputes that concern Republicans--such as the invalidation of some overseas military ballots--Feeney said Monday it would focus instead on the legal questions surrounding possible legislative intervention.

That narrowed focus may reflect a desire to accelerate the timetable: McKay said Monday that no decision would be made on whether to call a special session until the committee concluded its work. It is expected to hear today from Harvard Law Professors Charles Fried, a former solicitor general, and Einer Elhauge, and attorney Roger J. Magnuson, the three authors of the Legislature’s Supreme Court brief.