There’s a theory floating around that Vice President Al Gore’s post-election strategy is to call on power lawyers David Boies and Alan Dershowitz, tie up Florida in legal knots, and prevent its electoral votes from being considered by Congress. Gore, the theory goes, could win the Electoral College and become President next year without Florida’s participation.

However, this strategy need not succeed. Congress and the Florida Legislature hold two trump cards that could rescue Gov. George W. Bush’s presidential bid from Florida’s legal system, regardless of how the chads fall and the overseas absentee ballots swing.

Trump Card One: Republicans control the Florida Legislature

We’ve read and heard a lot from Palm Beach County Commissioners about how they represent the people of Palm Beach County.

But the Florida Legislature represents the people of Florida. And if Florida’s voters fail to provide their Secretary of State with a clear voice on who they preferred as President, Congress has authorized Florida legislators to speak for them.

Title III, Section 2 of the United States Code provides: “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.”

This language is essentially the statutory extension of Article II, Section 1 and Amendment XII of the U.S. Constitution, the former of which provides that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . ” (emphasis mine).

Florida held its Organization Session for newly elected legislators on November 21st, 2000, and may convene on its own initiative (i.e., without action by the Governor of Florida) to conduct business, which could include the appointment of presidential electors.

If Florida fails to either transmit its electoral certificates to Congress by the constitutional deadline, or otherwise retrieve this election from the pending legal morass, Florida’s legislature will deserve much of the blame.

Trump Card Two: Republicans control the U.S. Congress*

As Florida’s legislature speaks for the people of Florida, Congress, even on its bad days, speaks for the people of the United States. However state or federal courts rule in this matter, Congress plays the decisive role in deciding who becomes the next president.

Let’s assume for kicks that a court -- even the U.S. Supreme Court -- issues an injunction preventing Florida from transmitting its electoral votes and Congress from considering them.

Congress could then look to Title III, Section 15 of the U.S. Code, which authorizes the body to reject any electoral votes that have not been “regularly given.”

Under this statute, Congress could reject Florida’s electoral votes if Florida goes for Gore. Members of Congress are circulating “Dear Colleague” letters through both houses mentioning this possibility.

Congress also has other options. Some include rejecting “faithless electors” – a term describing those electors who have pledged their vote to one candidate and actually vote for another candidate.** Others envision a President Strom Thurmond, or a President George W. Bush by appointing him first to Speaker of the House of Representatives.

Could the U.S. Supreme Court intervene here or decide what “regularly given” means? Not without Congress inviting its intervention.

The reason why courts are loathe to get involved in these matters is because of the “political questions doctrine,” a term coined by U.S. Supreme Court Chief Justice Roger B. Taney in Luther v. Borden, 48 U.S. 1 (1849).

In Luther, as The Oxford Companion to the Supreme Court of the United States describes the case, many Rhode Islanders, “composed largely of displaced Yankees and recent immigrants” and concentrated in urban areas, complained that they were being “disenfranchised” by state officials.

Led by Thomas Wilson Dorr, Rhode Island reformers held their own constitutional convention. Even though Rhode Islanders didn’t ratify by popular vote the reformers’ draft constitution, the so-called Dorr Rebellion continued to challenge the incumbent Rhode Island executive and legislative branches for legitimacy.

Not amused by Dorr’s attempted coup, Rhode Island’s governor and legislature declared martial law and convicted Dorr of treason. Martin Luther, a Dorr supporter, sued Luther Borden, a militiaman, for trespass when Borden claimed the authority of martial law to enter and search Luther’s home.

The U.S. Supreme Court avoided deciding the explosive issues raised in the case by articulating the political questions doctrine. Chief Justice Taney wrote the opinion for an 8-1 Court.

Taney began by acknowledging that the executive and legislative branches are the source of the judicial branch’s authority.

[T]he courts [below] uniformly held that the inquiry proposed to be made belonged to the political power, and not to the judicial . . . . Judicial power presupposes an established government capable of enacting laws and enforcing their execution, and of appointing judges to expound and administer them. The acceptance of the judicial office is a recognition of the authority of the government from which it is derived. And if the authority of that government is annulled and overthrown, the power of its courts and other officers is annulled with it.”

Citing both judicial restraint and the relationship between the federal government and the States, Taney wrote that federal courts, without authority from Congress, have little say in how a State conducts its elections.

It is the province of a court to expound the law, not to make it. And certainly it is no part of the judicial functions of any court of the United States to prescribe the qualification of voters in a State, giving the right to those to whom it is denied by the written and established constitution and laws of the State, or taking it away from those to whom it is given; nor has it the right to determine what political privileges the citizens of a State are entitled to, unless there is an established constitution or law to govern its decision.”

Taney then explained why uncertainty inheres in the adjudication of political questions.

The question as to the majority is a question of fact. . . . In one case, a jury might find that the constitution which the plaintiff supported was adopted by a majority of the citizens of the State, or of the voters entitled to vote by the existing law. Another jury in another case might find otherwise. . . . The authority and security of the State governments do not rest on such unstable foundations.”

The Chief Justice concluded by holding that the Court would not get involved in political questions such as the one brought by the Dorr rebels against the State of Rhode Island.

It should be noted that, despite his authorship of the controversial Dred Scott decision, Taney remains in high regard as one of our nation’s greatest jurists.

Does an almost equal political division among Floridians appear to resemble pre-Civil War Rhode Island? It shouldn’t because despite the agitating by Rev. Jesse Jackson and others, recent polls indicate that Florida’s Gore supporters appear nowhere near the point of taking up arms and forming a parallel government (if perhaps for no other reason than to avoid publicizing the true meaning of the Second Amendment).

True, the members in both Congress and Florida’s legislature could pay a political price for what the mainstream media would label as “partisan” if they, instead of the Florida Supreme Court or Palm Beach County Commissioner Carol Roberts, decided the outcome of the presidential race.

But the fact remains that Al Gore won’t accede to the Presidency in 2001 -- with the power to appoint both federal judges and justices to the U.S. Supreme Court for the next four years -- without the acquiescence of Congress and the Florida Legislature.

*Since this article was published in the Elko Daily Free Press under the title ‘Where the Power lies in Florida,’ the results from the 2000 general election produced an even partisan split in the composition of the U.S. Senate for the 107th Congress. Under the rules in place at the time, if Congress had decided the presidential race, both the Senate and the House of Representatives would have voted separately. Assuming a party line vote in the Senate, Congress would have deadlocked on this question, although other provisions existed for resolving such a deadlock.”

**However, as noted in the footnote above, at the time the votes from the Electoral College were presented to the U.S. Senate of the 107th Congress, its President -- then-Vice President Al Gore -- could have cast the deciding vote whether to accept or reject the votes of faithless electors. My thanks to Professor Douglas W. Kmiec of Pepperdine University’s School of Law for identifying this scenario.”

Last updated May 21, 2001