If Tom Feeney has his way, he’ll get to decide the next President of the United States. As the Speaker of the Florida House of Representatives, Feeney is making a unique claim: that the Florida legislature has the power to overrule the courts and the popular vote and appoint its own slate of electors. Florida Governor Jeb Bush, who knows that the Republican-controlled legislature would elect his brother, has endorsed the idea as “the right thing to do.”
There’s only one problem with Feeney’s plan: It’s blatantly illegal. Both federal law and Florida law explicitly prohibit the legislature from declaring the next President.
On December 8, the Florida House and Senate made history by meeting for the purpose of overturning the people’s vote in a presidential election. Now that the Florida Supreme Court has ordered a recount of all undervotes, the Florida legislature intends to declare George W. Bush the winner by December 13, and even if court rulings make this unnecessary, the precedent of legislators illegally overruling a popular vote is a serious threat to democracy.
Feeney hired conservative Harvard law professors Charles Fried and Einer Elhauge, along with attorney Roger Magnuson, to argue this notion before a Republican-controlled joint legislative committee that issued a report on November 28 endorsing the idea. The lawyers also filed amicus briefs in the US Supreme Court and Florida Supreme Court cases, asking the Courts to endorse their dubious belief in legislative supremacy. Feeney’s lawyers argue that the Florida legislature has “an affirmative constitutional duty to appoint Presidential Electors before [December 18] to assure Florida is represented in the Electoral College.”
Feeney’s lawyers relied upon shaky justifications for their proposal to allow legislative nullification of a presidential election. The lawyers’ brief cited McPherson v. Blacker, an 1892 Supreme Court case that declared that appointing electors is “placed absolutely and wholly with the legislatures of the several states.” Unfortunately for Feeney, though, the Florida legislature used its absolute authority to give Florida courts the final power to determine the winner of a contested election.
Florida’s state law directly contradicts the idea that the legislature rather than the judiciary can determine the final outcome. Section 102.168 (8) of Florida law declares about a contested election, “The circuit judge to whom the contest is presented may fashion such orders as he or she deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under such circumstances.”
Nothing could be clearer: The courts, not the legislators, have the power under Florida law to make a final determination. Because the Florida Supreme Court has the authority to overrule a circuit court in accordance with Florida law, the judiciary is the ultimate arbiter.
Just to be perfectly clear, Florida statutes explicitly declare that there is only one exception to this rule, under 102.171, “to hear any contest of the election of a member to either house of the Legislature.” For the presidential electors, the legislature is utterly powerless to intervene under its own laws.