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If Florida’s Supreme Court rules that the state’s electoral votes belong to Vice President Al Gore, should Gov. George W. Bush concede? Or should he instead defy the court and take his fight to Congress on Jan. 6, when it officially counts the votes for the new president? Lawyers ordinarily discount the possibility of high officials defying the courts. But it is important to understand the meaning of a memo, according to The New York Times, that House Republican Whip Tom DeLay of Texas had prepared for him last week entitled, “Electoral College Procedure in the Congress.” Such a memo suggests that House Republicans might well lobby Bush hard to let them try snatching Florida’s votes, notwithstanding a Florida high court decree to the contrary. A closer look at both federal and Florida law indicates why Bush ought to turn down such importuning. Let us start with the historically unprecedented strategy that DeLay may well urge upon Bush. Every four years for two centuries, Congress has met, on a fateful day equivalent to this Jan. 6, to count the electoral votes sent in by each state’s chosen slate of electors. The House and Senate meet in a rare joint session, presided over by the president of the Senate — Gore himself. In the words of the 12th Amendment, the vice president “shall, in the presence of the Senate and House of Representatives, open all the certificates [of the votes of electors] and the votes shall then be counted.” Only once, in 1876, did Congress ever descend into partisan combat over the electoral vote count, producing perhaps the single worst debacle in American presidential election history. According to one Electoral College expert — Professor Michael Glennon of the University of California, Davis — Congress in 1887 enacted the Electoral Count Act as a necessary response to the episode. The act provides, in 3 U.S.C. Section 5, that “If any State shall have provided … for its final determination of any controversy … concerning the … electors of such State, by judicial or other methods or procedures … such determination … shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution.” Note the express mention that a final “judicial” determination “shall be conclusive.” That makes Florida’s Supreme Court, not Congress, the ultimate arbiter of the state’s contested election. And this is no hortatory language; for 123 years it has defined the American presidential system, elevating the chief executive as the public’s choice rather than reducing him, as in a parliamentary system, to the choice — and thus, mere puppet — of the legislature’s majority party. As Gore presents the certificates, 3 U.S.C. Section 15 provides that “the electoral votes … [are] acted upon in the alphabetical order of the States.” This means, the statute continues, that “Upon such reading of any such certificate or paper, [he] shall call for objections, if any.” The objection is phrased, as the statute says, that the electoral vote was not “regularly given by electors whose appointment has been lawfully certified” pursuant to the statute’s prior provisions, i.e., that the elector was not chosen under the state processes that are deemed “conclusive.” For example, in January 1969, electors from North Carolina, a state won by Richard Nixon, voted for George Wallace. In the joint session, members of Congress formally objected that the votes were not “regularly given.” The Senate and House then withdrew and separately debated the objection, resolving it by a majority vote in each chamber. (The objection was voted down and the Wallace votes were accepted.) So, let us look at how DeLay might lobby Bush in the near future. Suppose the manual recounts from the Florida county canvassing boards make Gore the vote-total winner, and after briefing and argument, the Florida Supreme Court orders Florida’s secretary of state, Katherine Harris, to certify only Gore’s slate of electors. But then suppose that Harris, who has campaigned for Bush, engages in some defiance and certifies both Gore’s and Bush’s slate of electors. And suppose that DeLay promises Bush that he can eke out a party-line House vote in 2001 for the Bush slate as “regularly given.” At that point, Bush ought to concede. Why? First, the House alone, without the Senate, cannot crown Bush. Recognizing that the 1876 debacle ensued from an intractable counting disagreement between the House and Senate, the drafters of the 1877 Electoral Count Act provided in 3 U.S.C. Section 15 that only “the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given.” Gore retains his majority even if the Senate goes along to the extent of rejecting both slates, because then Gore still has a majority of the electoral votes other than Florida’s. PRAISE THE MODERATES The nation saw, during the impeachment drama, the difference between the Republican House, which cohered to a strict party line, and the Republican Senate, where party moderates voted their consciences. The Republican Senate moderates represent an electoral base closer to the center, and they will not lie down for Bush. Second, moderate Republican senators will not go along with Bush because they will not relish the spectacle of violating the long-sacred rule that states’ electoral decisions “shall be conclusive,” and worse, the spectacle of doing so in defiance of that state’s highest court, in the maximum glare of publicity. No one since Nixon (in 1974) has even threatened to do that. Moreover, on this question, unlike the questions debated in impeachment, moderates in Congress would be conscious that the federal judiciary would bring them to heel for a wrong action — again, in the maximum glare of publicity. In contrast to matters like impeachment, which the Supreme Court has labeled as nonjusticiable political questions, the Court has passed repeatedly on the law regarding electors. The Court’s last such decision, Williams v. Rhodes (1968), said that the claim “that the political-question doctrine precludes judicial consideration of these cases requires very little discussion. That claim has been rejected in cases of this kind numerous times.” Finally, Florida’s Supreme Court is unlikely to allow a murky enough situation to develop either for either Harris at one end of the process or DeLay at the other to make a colorable claim that either or both together can defy the courts. Procedurally, for example, the Florida Supreme Court has the fine precedent of Republican State Executive Committee v. Graham (1980). There, Democratic Gov. Robert Graham refused to call a special primary election needed to choose a Republican candidate for the House. Florida Republicans sought that primary on July 31, and they applied to have the court order the governor to call it. By Sept. 17, the Florida Supreme Court had ruled in favor of the Republicans, not hesitating to command the obedience of the Democratic governor. Professor Jim Rossi of Florida State University School of Law in Tallahassee, an expert on Florida’s law (and also a former student of mine from Yale), discussed with me whether there was any precedent that Florida’s secretary of state could draw on that could conceivably allow her to defy the courts. He assured me that the concept is foreign to Florida law. If the Florida Supreme Court issues a writ of mandamus, no Florida Republican official, however displeased, will be able to serve the matter up particularly well for DeLay. Which leaves us waiting on the courts — and expecting a firestorm if Bush, instead of accepting the Florida Supreme Court’s decision, fights on in Congress. Charles Tiefer was solicitor and deputy general counsel of the House of Representatives from 1984 to 1995. He is the author of “Congressional Practice and Procedure” (Greenwood Press, 1989) and is currently associate professor at the University of Baltimore Law School.

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