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.
Of course, the Florida legislature does have the power to change the rules. In fact, under the US Constitution, the Florida legislature can eliminate elections and simply appoint the presidential electors directly. However, federal law explicitly outlaws changing the election system after the vote in order to affect the outcome. If the Florida legislature tried to appoint electors in place of election procedures, there would be an immediate legal basis for having these electors thrown out because of the violation of federal law.
Feeney’s lawyers argue, “If a State’s election ‘has failed to make a choice’ that is timely and conforms with pre-existing law, then 3 U.S.C. Sect. 2 recognizes that appointment of Electors by the State Legislature is proper.” A superficial reading by someone unfamiliar with legal language might lead to this misreading of Section 2, which states: “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice 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.”
However, this provision exists not to allow state legislators to overturn a contested election but to provide an option in case of a tie. Because federal law normally bans any election held after the designated election day, this provision is necessary to allow a re-vote to break a tie. The word “appointed” in that federal law refers to voters electing a candidate, not the state legislature declaring a winner. Since Florida has certified George W. Bush as the choice, there is no case where the state fails to make a choice. If courts reverse this decision and Al Gore is declared the winner, there will be two choices, not zero. Yale law professor Bruce Ackerman, noting that the Florida legislature’s plans are illegal, told its special committee, “Florida will not have failed to act, but will have acted twice. This two choice situation has also been foreseen in the federal statutes-which have elaborate provisions for regulating the way in which the claims of rival slates should be assessed under the Constitution.”
Feeney’s claim is so radical, it even argued to the US Supreme Court that “departures” from standards in previous elections on manual recounts by county canvassing boards “require the Florida Legislature to appoint Electors.” The Florida legislature could overrule the popular vote in almost any situation where an election is contested. Indeed, the constitutional argument that state legislatures can appoint electors means that any legislature could overrule a popular vote at any time.
To justify his decision, Feeney referrd to James Madison’s statement in Federalist No. 45: “Without the intervention of the State legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it.” But The Federalist Papers were propaganda, not constitutional analysis. Madison’s attempt to butter up the state legislators was never intended to allow them to seize power after an election. The President can’t be elected without the state legislatures because the legislators pass the state election laws. Madison said that the state legislatures might determine the election because he expected legislatures to appoint electors (seven out of ten states did in the first presidential election in 1788), not because they would unilaterally overrule a public vote required under state law. When state law demands an election, as it does in Florida, the legislature is powerless to overturn it.
Republicans are pushing for this legislative nullification of the Florida election because they’re terrified that a court-ordered recount will hand the election to Gore. Federal law forces Congress to accept state election results only if they are finalized six days before the electors vote (on December 18 this year). If the Florida electors remain in dispute by December 12, Florida could end up sending a contested slate of electors’ votes to Congress. In that case, the Senate (which is now split 50/50 and until January 21 will be controlled by the Democrats, with Vice President Gore casting a tie-breaking vote) and the Republican House would disagree if there is a party-line vote, and then under Title 3 of federal law, Section 1.15, the decision on contested electors would go to the slate certified by the Governor of the state.
However, if the Florida courts overturn the Bush election before December 18, Florida’s Secretary of State and the Governor are obligated under Florida law to sign a new certification removing the old victor and declaring a new one. If this happens, Jeb Bush’s own signature would provide the tie-breaking vote to take the presidential election away from his brother. Perhaps that’s why Jeb is so anxious to have the Florida legislature do “the right thing” for his sibling, even if it means violating its own laws.