by Leo Donofrio, ©2020, blogging at naturalborncitizen
(Nov. 15, 2020) — The November 30, 2000 edition of the NYT featured an article (by David Barstow and Somini Sengupta) wherein Governor Jeb Bush thanked the Florida Legislature for their bravery in committing to seat electors for his brother, George W., regardless of whether the Supreme Court stopped the recount, and regardless of whether Gore subsequently won:
“Gov. Jeb Bush of Florida said today that it would be an ‘act of courage’ for his state’s Legislature to convene a special session to name Florida’s 25 electors if Vice President Al Gore persisted in contesting the state’s presidential balloting…
“Mr. Bush said he would prefer that the courts rendered the issue moot by denying Mr. Gore’s legal challenges. But, he said, legislative selection of electors would guarantee the state’s representation in the Electoral College…
“‘It’s the right thing to do, I think, given the proper circumstances,’ Mr. Bush said…His views mirrored those of several lawyers hired by the Legislature’s powerful Republican leaders to advise the members of the House and the Senate. On Tuesday, and again today, those lawyers told a select committee of lawmakers that the Legislature had an unambiguous obligation under the United States Constitution to step in and select electors …
“‘This is so clear about who has the responsibility to do this in an environment where there is a contest,’ Mr. Bush said. ‘The Constitution provides that the Legislature be delegated this authority not the state, not anybody else but the Legislature. I think people understand that.’
“Republicans hold a 77-to-43 advantage in the Florida House and a 25-to-15 advantage in the Senate, and the leaders of both bodies have made it clear that any electors they choose will be for George W. Bush.”
Hey now. The Florida State Legislature knew how to crack the whip. You see how they did that? Florida was still counting ballots, eyeing chads. And the United States Supreme Court hadn’t ruled yet. Regardless, the Legislature “made it clear” that all electors were going to Bush no matter what.
But how could this happen? By what authority? The power is derived from Article 2;§1 of the US Constitution – “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” – and the power is reiterated in 3 USC §2:
“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.”
An election has failed, according to the statute, when all presidential electors have not been appointed by midnight on Election Day. (Also know as “the day prescribed by law” in 3 USC§1).
United States Supreme Court precedent, upheld on multiple occasions (as recently as July 2020, in an 8-0 decision), mandates that this power to direct how electors are appointed may be utilized “at any time”. If the power has been granted to the people in a popular vote, it may be “resumed” by the State Legislature…at any time:
“The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35 (‘[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated’) (quoting S. Rep. No. 395, 43d Cong., 1st Sess.).” Bush v. Gore, 531 US 98, 104 (2000).
LET’S TALK ABOUT PROCEDURE
The NYT article discussed the possibility of whether brother Jeb might sign legislation drafted to appoint Bush electors. But there was no need to flame the fire of nepotism, since the Legislature didn’t need the Governor’s approval to order the appointment of presidential electors. The State Legislatures’ power is plenary. Hence, the following:
‘’’I admire Speaker Feeney and President McKay’s approach to this,’ Mr. Bush said. ‘They’re accepting their responsibility in a sober somber way, which they should.’ Mr. Bush, however, may yet avoid having to sign legislation from a special session. Increasingly, senior Republican legislators are talking about naming electors by resolution, which does not require the governor’s signature.”
The Legislatures don’t need a special session. And they don’t need their Governor’s approval. No state laws govern them in exercising the plenary authority granted by the Constitution. The words are unambiguous; “Each State shall appoint, in such Manner as the Legislature thereof may direct…”
Read the rest here.