Legislature’s Electoral Power Is a Matter of Debate

Just how much power can the Florida Legislature legally assert in the presidential election?

That issue has come into sharp focus as Republican legislators prepare to name their own set of electors pledged to vote for Texas Gov. George W. Bush.

This week, Florida legislators filed a brief in the U.S. Supreme Court--and said during hearings in Tallahassee, Fla.--that they have broad power to appoint electors of their own choice, even though Florida law says that the state’s electors should be decided by popular vote.

Whether that claim withstands scrutiny is important on several fronts.

The legislators’ assertion runs headlong into “the belief in our popular culture that every person has a right to vote for presidential electors, a belief that has grown as we have evolved from a republic to a democracy,” said UC Davis law professor Michael J. Glennon, an expert on the electoral college.

Their claim also may put the legislators on a legal collision course with the Republican Bush, who has asserted that election rules can’t be changed after election day.

While publicly Bush and the Legislature are allied, in private, Bush’s lawyers have said they are uncomfortable with the broad position that the Legislature has taken.

All legal experts agree that lawmakers are entitled to appoint the state’s electors if a deadlock still exists on Dec. 12. That right comes from a specific provision of federal law, which neither side has challenged.

But the Republican majority in the Florida Legislature has asserted a much broader power. Citing Article II of the U.S. Constitution and a 19th century Supreme Court decision, the Legislature’s lead lawyer, Charles Fried, has claimed the Legislature has “plenary power” to appoint electors whenever it deems it necessary.

Fried, a Harvard law professor and U.S. solicitor general in George Bush’s administration, cites a provision of Article II saying “each State shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors.” Before 1850, presidential electors were chosen directly by legislatures in many states, but over time, all states have passed laws handing that power over to voters.

Fried also cites an 1892 Supreme Court ruling called McPherson vs. Blacker. In that case, the only one in which the high court has discussed the issue, the justices upheld the Michigan Legislature’s decision to allocate electors by district rather than by statewide popular vote.

John Yoo, a conservative constitutional law professor at UC Berkeley, supported that view in testimony to the Florida Legislature on Tuesday, telling the lawmakers that they had the power to act now. But liberal constitutional scholars disagree.

Stanford University law professor Pamela Karlan, for example, contends that reliance on the 108-year-old McPherson case is misplaced: “That case cites a number of earlier decisions that said there is no right to vote. But since the reapportionment decisions of the 1960s, the Supreme Court has done its level best, without ever explicitly overruling McPherson, to give everyone the right to vote, and it has described voting as a fundamental liberty under the 14th Amendment.

“If I were the Florida Legislature, I wouldn’t be puffing myself up like a cat getting ready to pounce,” said Karlan, who is a voting-rights specialist. “What they are doing now is setting themselves up for voters to bring a lawsuit contending that the Florida Legislature has deprived them of their preexisting right to vote.”

Fried’s position also appears to conflict with the one that Bush’s attorneys have put forward in their briefs to the U.S. Supreme Court.

Bush’s team cites the Electoral Count Act of 1887, a measure enacted in response to the scandalous electoral swapping that emanated from the Hayes-Tilden presidential election of 1876. The law, they say, forbids a state from “changing the rules” on elections after election day.

“Congress intended [that] controversies concerning elections [would be] determined according to rules established and in place before an election,” Bush’s attorney Theodore Olson said in his brief to the Supreme Court.

According to Harvard Law School professor Laurence H. Tribe, who represents Bush’s Democratic rival, Vice President Al Gore, in the high court, there is “a basic tension” between Olson’s argument and the one Fried has advanced on behalf of the Legislature.

Congress passed the 1887 law in part because it was “concerned with the situation where a legislature, unhappy with the results of an election, would shift the rules and take over,” Tribe said.

Several outside attorneys agree with Tribe’s stand.

If the Florida Legislature can step in now and ignore decisions made by any other branch of government--which appears to be the position the Legislature’s lawyers are taking--that would introduce “tremendous instability” into our system, said Richard Pildes of the University of Michigan Law School.

USC law professor Erwin Chemerinsky agreed. On election day, Florida had statutes in place providing three things: Florida voters would pick the state’s presidential electors; election results could be contested in court; if the election remained unresolved on Dec. 12, the Legislature could intervene.

Florida’s secretary of state, Katherine Harris, has certified Bush as the winner, and the state’s governor, Bush’s younger brother, Jeb Bush, has sent formal documents to Washington saying the state has picked its electors, Chemerinsky noted.

“That means Florida has picked electors subject to the outcome of the election contest,” he said. For the Legislature to step in now would be changing the law after the election, he said.

In comments to reporters, Bush’s lawyers, speaking on condition of anonymity, have expressed unhappiness with the Legislature’s stand. Although Bush wants the U.S. Supreme Court to resolve the Florida dispute in his favor, lawyers for the Legislature want the high court to dismiss the case and turn it entirely over to elected officials.

Ironically, if Bush wins in the Supreme Court, particularly if the court’s decision is broadly written, the ruling could handcuff Bush’s supporters in the Legislature.

For example, if the justices were to say that federal law prohibits changing the rules in Florida, the court might be handing Gore’s lawyers a legal weapon in their attempt to block intervention by the Florida Legislature.

Politically, of course, the two sides are more closely aligned than are their legal arguments.

“Bush, for political reasons, would not want to take the position” that the courts cannot rule on the election, said Richard L. Hasen, an election law specialist at Loyola Law School. But if the Florida Legislature picked the state’s electors, Bush “certainly would benefit,” he said.

Hasen said he thought the Supreme Court would reject the Florida Legislature’s argument, but added: “I think it is a smart backup position. Right now, the Florida Legislature is like the bullpen for Bush.”