Sore loser? Or the real winner?
Legal battle shifts to legislature's power to appoint electors
By Henry Weinstein and David Savage
Los Angeles Times
Just how much power can the Florida leg
islature legally assert in the presidential elec-
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 Bush.
This week Florida legislators filed a brief
in the U.S. Supreme Court and said dur
ing hearings in Tallahassee 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
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 presiden
tial electors, a belief that has grown as we
have evolved from a Republic to a democ
racy,- said University of California, 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 Bush, who has
asserted that election rules can't he changed
after election clay.
While publicly Bush and the legislature are
allied, in private, Bush's lawyers have said
ully recognized presidential victory still eludes Bush's grasp
by William E. Gibson
November 26, 2000
Knight-Ridder Tribune
Florida officials declared George W. Bush
a winner on Sunday, yet a final, definite, fully
recognized presidential victory still eludes his
The state certification cannot be shrugged
off as just another disputed episode, nor can
it be seen as the climactic end to the presi
dential election.
Florida's certification essentially estab
lished the Republican candidate as the leader
at this point in the on-going, post-election
period, as court challenges spill into the next
few days or weeks. It gave Bush legal and
political leverage, a public relations rallying
point and a chance to take advantage of the
prevailing weariness with the whole recount
ing process.
Bush seized the occasion to declare vic
tory, launch his transition team and call for
national unity.
"Once our elections are behind us, once
our disagreements are expressed, we have a
responsibility to honor our constitution and
laws and come together to do the people's
business," he said in a brief speech televised
nationally.
Sunday's events put the onus of protracted
legal wrangling on Democratic candidate Al
Gore, who shows no sings of conceding.
Thrown on the defensive, Gore reportedly
plans to explain to the public today why he
must still contest the count in the courts.
His running mate Joseph Lieberman gave
a preliminary response just minutes after the
Race
they are uncomfortable with the broad posi
tion that the legislature has taken.
Legal experts agree that lawmakers are en
titled to appoint the state's electors if a dead
lock 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. Constitu
tion and a 19th century Supreme Court deci
sion, the legislature's lead lawyer, Charles
Fried, has claimed the legislature has "ple
nary power" to appoint electors whenever
they deem it necessary.
Fried, a Harvard law professor and U.S.
Solicitor General in the Bush 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. - Prior to 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 ail
ing 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 allo
cate electors by district rather than by state
wide popular vote.
Democratic lawyers dispute Fried's argu
ment.
certification was announced, saying Gore had
"no choice" but to challenge the reported
Florida returns.
" It is in our nation's interest that the win
ner in Florida is truly the person who got the
most votes," Lieberman said.
Certification brought advantages to Bush
but not finality or, in the minds of many
Democrats at least, a sense of legitimacy.
That has prompted Gore supporters to
struggle on.
"If either candidate were to be declared the
victor and electoral votes awarded based on
the status today, neither candidate would be
legitimate," Sen. Bob Graham, D-Fla., said
on Sunday in Tallahassee.
"We are now going through a frustrating
period, a period of inconvenience and anxi
ety," Graham said, pleading for patience.
"But that is nothing compared to what this
country would go through if we had an ille
gitimate president, or a president who had to
live with the title of illegitimacy for his full
term in his office."
Many Republicans, already quite satisfied
with their candidate's legitimacy, hope to
seize the momentum created by the long
awaited certification to foster a sense of fi
nality. Almost immediately after the certifi
cation, several high-profile Republicans
called for closure and an end to legal
wranglings. They are hoping certification will
put pressure on Democrats to either abandon
further challenges or suffer the brunt of the
public's impatience.
"At some point, there must be closure," a
smiling James Baker, former secretary of
state, said on Bush's behalf. "At some point,
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Stanford University law professor Pamela
Karlan, for example, contends that reliance
on the 108-year-old McPherson case is mis
placed. "That case cites a number of earlier
decisions that said there is no right to vote.
But since the reapportionment decisions of
the 19605, the Supreme Court has done its
level best, without ever explictly overruling
McPherson, to give everyone the right to
vote, and it has described voting as a funda
mental liberty under the 14th amendment."
"If I were the Florida legislature, I wouldn't
he 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 legisla
ture has deprived them of their pre-existing
right to vote."
Fried's position also appears to conflict
with the one Bush's attorneys have put for
ward 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 ema
nated from the Hayes-Tilden presidential
election. The law, they say, forbids a state
from "changing the rules" on elections Idler
election day.
"Congress intended (that) controversies
concerning elections (would be) determined
according to rules established and in place
the law must prevail and the lawyers must
go home. We have reached that point."
Neutral observers said the contest is far
from over, that court challenges over the next
few days or weeks could alter the outcome.
But they said the Florida certification clearly
boosted Bush's credentials in the public mind.
"I'm assuming it will be a public-relations
coup of sorts for Bush to get the certifica
tion," said Robert Huckshorn, former chair
man of the Florida Elections Commission and
now an administrator at Florida Atlantic Uni
versity. "People have gotten to the point
where they don't care who wins, they just
want to get it over with.
I sense most people think. "This has gone
too far, let's get it done."
In the court of public opinion, Gore's ad
vocates have made his case for continued re
counts on the basis that he got a plurality of
the popular vote nationwide and -- if you set
aside the disputed Florida count -- holds the
lead in electoral votes as well.
If the Florida recounts had brought in a tide
of new votes for Gore, the public attitude
could have shifted in favor of continued le
gal challenges. But as of late Sunday, the re
counts still left Bush with a lead, though it
had shrunk to minuscule 0.01 of a percent
age point out of about 6 million votes cast.
This lead, however slim, combined with
the state certification, have put Gore under
pressure to concede or face a possible public
backlash from moderate voters -- indepen
dent-minded and less partisan Americans
who are targeted by both political parties and
tip the balance in most elections.
"What you've got with voters are three
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before an election. - Bush's attorney Theodore
B. Olson said in his brief to the Supreme
According to Harvard I.aw School profes
sor Laurence Tribe. who represents Vice
President Al Gore in the high court, there is
"a basic tension" between Olson's argument
and the one Fried has advanced on hehalfol
the legislature.
Congress passed the 1887 law in part he
cause 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.
University of Southern California 1.,m pro
fessor Erwin Chemerinsky agreed. On elec
tion day, Florida had statutes in place pro
viding three things: Florida voters would pick
the state's presidential electors; election re
sults could be contested in court; if the elec
tion remained unresolved on Dec. 12, the leg
islature could intervene .
Florida's Secretary of State, Katherine Har
ris, has certified Bush as the winner, and the
state's governor, Bush's younger brother, leh
Bush, has sent formal documents to Wash
ington saying the state has picked its elec
tors, Chemerinsky noted.
"That means Florida has picked electors
subject to the outcome of the election con
test," he said. For the legislature to step in
now would he changing the law after the elec
tion, he said.
groups: the hard-core Republicans, who think
that Al Gore is a had loser; the hard-core
Democrats, who think Al Gore got robbed;
and the folks in the middle, who have every
reason to worry about the mood under which
the next president takes office," Stephen
Craig, professor of political science at the
University of Florida. said on Sunday.
"For a while, that segment in the middle
said, "Let's count the votes.' But not now. It's
not so much that this segment of the public
rejects the possibility that the count is inac
curate, they are just growing tired of the pro
cess. They are ready to see it resolved, one
way or other, but resolved.
"Both sides are wrapped up in their co
coons and utterly tone-deaf to what the pub
lic wants. It's just that Bush appears to have
the cards and Gore doesn't. That's where
we're at."
After campaigning hard for nearly two
years, Gore clearly is not yet ready to fold
his cards
Momentum in the exceedingly close presi
dential race has shifted many times, both be
fore and after the election. The inconclusive
outcome, wavering results on election night
and the partisan split in the country have
made both candidates reluctant to give up the
fight, step aside and hope for satisfaction in
the future.
Rarely have defeated candidates regained
their party's nomination and gone on to vic
tory. The parade of losers over the years
prompted the old saying that there are no sec
ond acts in American politics. Richard Nixon
defied this rule, winning an extremely close
election in 1968 after losing an even closer
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If a president has
not been chosen by
Inauguration Day,
Speaker of the House
Dennis Hastert
will become interim
United States. This
would be the first
time in history that
such an occurrence
will have happened.
Inauguration Day
has been set for
January 20, 2001.
one in 1960. But Nixon's experience was ex-
ceptional
"To me, the loser of this presidential race
is the winner. I'm not sure I'd want to be presi
dent under these circumstances," observed
Richard Semiatin, an expert on presidential
elections at American University in Wash
ington. "But both candidates look at it as their
only chance to win the presidency."
"If your whole adult life is geared to win
ning the presidency, it's hard to let go,"
Semiatin said. "This might be your one shot
at the brass ring. It's like they are two pugi
lists still slugging it out after the referee rules
the bout a draw."
The image of a bloodied survivor seems
fitting for whoever becomes president. All
this partisan punching nearly three weeks af
ter Election Day already has delayed the
usual healing process.
Bush, if he finally prevails, would come
to office not only with less than a plurality
of votes nationwide but dogged by questions
about the legitimacy of 2000 election results
that are likely to be debated well into the fu
ture.
"I think it's over. It should be over. Maybe
that's the important word "should."" said Bob
Crawford, a Democrat on the state board that
certified the election. "We have a winner and
it's time we move on. The one thing I'm sure
of is that both sides have enough legal talent
to keep this tied up through Christmas, but
there's one thing the lawyers can't do for us
and one thing the courts can't do for us, and
that's bring this country together again."
It's going to take both candidates to do that,
he said.
FRIDAY, DECEMBER 1, 2000
president of the