The Wall Street Journal

Monday, December 4, 2000

A Legislature's Duty

By John Yoo

"Without the intervention of the State Legislatures, the President of the United States cannot be elected at all," explained James Madison in Federalist Paper No. 45. "They must in all cases have a great share in his appointment, and will perhaps in most cases of themselves determine it."

This week we will learn if the Florida legislature possesses the courage to live up to Madison's expectations. In an unprecedented special session, lawmakers will consider whether to end the election crisis by directly appointing the state's 25 presidential electors. They will undergo a hailstorm of criticism from the Gore campaign, the media, and liberal academics, who will argue that such intervention would bypass the democratic process.

Florida's legislators have a constitutional duty to ensure their state appoints electors. Article II, Section 1 of the Constitution says that "each State shall appoint, in such Manner as the Legislature thereof may direct, a number of Electors." Despite the Florida Supreme Court's free-wheeling approach to statutory interpretation, the Constitution's use of the word "shall" requires the legislature to ensure participation in the Electoral College.

The U.S. Supreme Court has upheld the exclusive right of state legislatures to appoint electors. In McPherson v. Blackmer, in 1892, the Court declared that "the appointment of these electors is thus placed absolutely and wholly with the legislatures of the several states." No other branch of state government can interfere with the power and duty of the legislature to fulfill the Constitution's command. As the court said, "this power is conferred upon the legislatures of the States by the Constitution of the United States and cannot be taken from them or modified by their State constitutions."

In an ordinary election, legislative intervention would be unnecessary. As in other states, the Florida Legislature has delegated its power to choose electors to popular elections, and these elections usually have produced a decisive winner. The problem is that the vote in Florida was so close -- a 597- vote margin for George W. Bush, out of six million cast -- that it has convinced Al Gore to serially litigate the results in the state courts. This plethora of lawsuits has so prolonged Florida's electoral process that it threatens to deprive Florida of any electoral votes at all.

Democrats claim that Florida Secretary of State Katherine Harris's certification of Mr. Bush's victory last week guarantees that Florida has its electoral votes. Unfortunately, they ignore two deadlines imposed by federal law. In Title 3 of the U.S. Code, Congress explains how it will exercise its constitutional duty to count the electoral votes. One section promises that Congress will treat as "conclusive" a state's electoral votes so long as the state has resolved any challenges to the election by Dec. 12. Another explains that Congress has established Dec. 18 as the date the Electoral College must meet in each state and send its votes to Washington.

Mr. Gore's refusal to drop his victory-through-litigation strategy raises the very real possibility that Florida will fail to meet both the Dec. 12 and Dec. 18 deadlines. If the legal challenges to Mr. Bush's victory do not reach a final conclusion in eight days, Congress might be entitled to reject Florida's electoral votes -- disenfranchising all of Florida's six million voters -- regardless of the Bush certification. If the litigation is not completed within two weeks, Florida may have no electoral votes to render. Or suppose that between Dec. 12 and Dec. 18 the Florida courts find that Mr. Gore should prevail. Florida then might send forward two slates of electors, triggering rules that could allow Congress to reject both sets -- again disenfranchising all Florida citizens.

While Mr. Gore no doubt wants to bring the litigation to a swift conclusion, our judicial system is not built for speed -- it is built for fairness. And fairness means that both sides must have the opportunity to present their case, to question the evidence, and to appeal errors to higher courts. This takes time. Only now is the first of the election lawsuits under consideration by U.S. Supreme Court, and this after vastly accelerated schedules. Imagine how long it will take the many lawsuits filed just last week to reach a similar point. Our commitment to due process almost ensures that Florida will fail to meet Congress's deadlines.

Congress seems to have anticipated that at times the legislature would have to intervene to ensure a state selected its electors on time. Title 3 of the U.S. Code authorizes the state legislature to appoint electors "whenever any State has held an election for purposes of choosing electors, and has failed to make a choice" by Dec. 12. Democrats amazingly claim that Florida has already made that choice (Mr. Bush's certification) even as they attempt to overturn that decision. But while Floridians have voted, they have not been allowed to conclusively choose their electors. In fact, the Gore litigation strategy is designed precisely to prevent that. Even so, in oral argument Friday before the U.S. Supreme Court, Mr. Gore's counsel confessed that he was unsure about the Florida Legislature's right to intervene.

Even without Title 3, the Florida legislature would still have the constitutional authority to choose electors. Contrary to Democratic rhetoric, the people have no right to vote for president or even the Electoral College; that power is only delegated to them by the grace of the legislature. In appointing the electors itself, the legislature would be directly taking up its constitutional functions again. We should not forget that the legislature itself is elected by the people of Florida; in a close race -- a virtual statistical tie -- it makes sense to defer to the most popularly responsible branch of the state government.

As the court made clear in McPherson, the Constitution holds that "whatever provisions may be made by statute, or by the state constitution, to choose electors by the people, there is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away or abdicated." There is perhaps no better justification for such legislative action than a breakdown in the system of voting due to litigation and judicially required recounts.

To forestall the likelihood that Mr. Gore's lawsuits will drive Florida into electoral purgatory, the state legislature must prepare to choose presidential electors regardless of the outcome of the litigation. Not only would the legislators be doing Florida a service, they would be fulfilling their constitutional duty and helping to bring the electoral crisis to a timely conclusion, should the U.S. Supreme Court and the Florida courts fail to do so this week.

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Mr. Yoo, a professor at the University of California at Berkeley's Boalt Hall School of Law, testified before the Florida Legislature last week.