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President Hastert and Other Symptoms of a Constitutional Crisis

What would have happened had the U.S. Supreme Court not intervened in the Florida election contest and the Florida courts had ultimately found in Gore’s favor? The answer to this question depends in part on when the Florida courts reached their decision.

Section 5 of Title 3 codifies the so-called “safe harbor” provision of the Electoral Count Act. This section states:

 If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.

3 U.S.C. § 5.

 

Determination By December 12

Section 5 aims to encourage states to establish tribunals for resolving controversies regarding the appointment of presidential electors by promising that a final determination by such a tribunal, if made by the statutory deadline, will be accepted by Congress as “conclusive” with respect to the ascertainment of the electors appointed. This means that if the Florida courts had made a final determination with respect to the election contest by December 12, 2000 (six days before election balloting day and, probably not coincidentally, the day Bush v. Gore was decided), the winning slate of electors could have claimed safe harbor status under section 5.

I say “could have claimed” because, notwithstanding Congress’s evident desire to create a bright-line rule for timely state determinations, section 5 only embodies a substantive standard, not a procedural one. Unlike the single return rule, which requires both houses to agree before the return may be rejected, there is no such procedural advantage for a claim of safe harbor status. As Professor Siegel explains, claiming safe harbor status is not the same thing as having it, and both houses must agree before such status will be afforded. See Stephen A. Siegel, The Conscientious Congressman’s Guide to the Electoral Count Act of 1887, 56 Fla. L. Rev. 541, 589 (2004) (note: Siegel refers to the safe harbor provision as “section 2,” using the numbering system of the ECA rather than Title 3).

According to Siegel, either house of Congress may properly consider only the following questions in determining whether safe harbor status should be afforded: “(1) Have these electors been confirmed by the state’s final determination process?; (2) was the state law creating that process enacted prior to election day?; (3) Did the process use quasi-judicial methods?; (4) Was the determination final at least six days before the day set for elector balloting?; and, perhaps, (5) Was the determination nonfraudulent?” Id. at 607. Unless one chamber finds that the answer to one of these questions is no, he says, the return must be given safe harbor status.

As Siegel recognizes, even if Congress agreed that these were the only proper questions, there is a strong possibility that motivated reasoning would lead one house to reject safe harbor status for electors of a different political party. For example, if the Florida courts had found for Gore, it is easy to imagine the Republican House concluding that the determination was not final as of December 12 because of the possibility of motions to reconsider or other possible legal proceedings. See id. at 657 n. 689. Or that the decision of the Florida courts was so flawed as to fall within an implicit fraud exception to section 5. Id.

In addition, there are at least two other colorable arguments that the Republican House might have advanced to block safe harbor status for the Gore electors. First, if the final determination was not certified by the executive authority of the state, as required by the ECA, 3 U.S.C. § 6, it could be argued that safe harbor status is not warranted. Siegel apparently does not agree with that argument, suggesting that the only authorization required is that of the tribunal (presumably the Florida Supreme Court) that makes the final determination. Siegel, 56 Fla. L. Rev. at 670. He may be right, but the text of the ECA is not clear on this point.

House Republicans would also have argued that the decision of the Florida courts was not made “pursuant to such law” existing on election day as required by section 5. Siegel argues that this statutory requirement only means that the law establishing the tribunal and the processes for making a final determination must have existed on election day. Id. at 590 n. 303. It does not mean that the final determination can be set aside merely because the tribunal made legal errors, even blatant errors that amounted to “changing the law” or disregarding pre-existing law (as was alleged with regard to the Florida Supreme Court). See id. Again, Siegel may be right, but the text of the ECA is sufficiently ambiguous on this point to support the (hypothetical) House Republican position.

All in all, the arguments for denying safe harbor status to a determination made by December 12 would seem to be stronger than the “anti-single return” argument sketched out in my last post. The anti-safe harbor arguments still may not be correct or sufficient to convince a neutral decision-maker. But they are strong enough to permit a non-neutral decision-maker, such as the Republican House, to vote against safe harbor status with a clear conscience.

In any event, by the time the Supreme Court was considering Bush v. Gore, it was clear that Florida would make no determination by December 12. So even if one believes that the ECA’s safe harbor provision could have resolved the election without judicial intervention, that option no longer existed by the time the Court issued its opinion.

 

Determination by December 18

Florida’s failure to make a final determination by December 12 would deprive its electors of safe harbor status, but it would not prohibit Congress from counting the votes of Florida’s electors. Which electors, if any, Congress would recognize depends on application of the ECA’s rules in section 15 of Title 3.

Had the Florida courts found in favor of Gore by December 18 (elector balloting day), it is virtually certain that both the Bush and Gore electors would have cast their ballots on that date. The Bush electors would have used the certificate of ascertainment issued by the Florida governor on November 26, 2000 to comply with the requirements of 3 U.S.C. § 9, which requires that the electors “annex to each of the certificates one of the lists of the electors which shall have been furnished to them by direction of the executive of the State.” The Gore electors presumably would not have been issued a certificate of determination by the Florida governor, but they might have been able to obtain certification from another executive authority (e.g., the state’s attorney general, who was a Democrat). Alternatively, they may have annexed a copy of the court’s judgment as prima facie evidence of their authority to vote.

It is also conceivable (though doubtful, given the time constraints) that the Florida Supreme Court might have (a) ordered the Florida governor to certify its determination of the election contest and/or (b) enjoined the Bush electors from casting ballots. It is difficult to predict all of the political and legal ramifications that might flow from such moves (the discussion below of the Florida legislature would be one example), but suffice to say that they would not likely have contributed to a smooth resolution of the presidential election.

Assuming that both the Bush and Gore electors voted on December 18, the ECA provides two possibly relevant tie-breaking rules. One provides that “[i]f more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed, if the determination in said section provided for shall have been made . .  . .” 3 U.S.C. §15. The second provides that “if the two Houses shall disagree in respect to the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.” Id.

Democrats would undoubtedly argue that the Gore electors should prevail under the first rule since they were “shown by the determination mentioned in section 5 of this title to have been appointed.” Republicans would counter that the section 5 determination referred to includes the element that it must be made six days before elector balloting day and thus the first tie-breaking rule does not apply. They would contend that the second tie-breaking rule requires recognizing the Bush electors (assuming that only these electors had been certified). Democrats might claim that the second tie-breaking rule is inapplicable when one return purports to be the product of a section 5 determination. They would also argue that the Gore electors were entitled to the governor’s certification and that the ECA should not be construed to allow the outcome of the election to be determined by the governor’s refusal to perform a ministerial duty.

I don’t know how a court or other neutral decision-maker would resolve these arguments. I tend to think that it would not recognize the Gore electors on the ground that these electors failed to attain the safe harbor status under which congressional recognition is required. But it might not recognize the Bush electors either and instead hold that neither slate is entitled to recognition unless both houses agree.

In any event, the ECA’s procedures provide no neutral decision-maker, nor any method to resolve a dispute between the two houses over which tie-breaking rule applies. Thus, the end result of this scenario would also appear to be a standoff with no clear path to resolution.

 

Determination After December 18

If the Florida courts had not made a determination by December 18, it is still likely that the Gore electors would have voted on that day, following the “precedent” set by the 1960 Hawaii electors. There is a serious question whether such votes may be counted under the ECA, even if the electors who cast them are later determined to have been properly appointed. See Siegel, 56 Fla. L. Rev. at 572 (debates over ECA show general agreement that “only the people who had the governor’s certificate of election were entitled to cast electoral votes unless a successful challenge had been completed by elector balloting day.”). It is also arguable that the ECA does not require (or perhaps permit) the executive authority to certify a final determination made after elector balloting day.

Thus, if the Gore electors voted on December 18 without any apparent authority, but were later determined to have been the electors actually appointed, the argument for counting their votes (and against counting the votes of the Bush electors) would be objectively weaker than if the determination had been made by December 18. But this would not prevent congressional Democrats from making the argument, no doubt citing the Hawaii “precedent” in support. Absent intervention by a court, this scenario would still result in deadlock so long as the two houses were in disagreement as to which votes to count.

 

Action by the Florida Legislature

The above scenarios involve situations within the general contemplation of the ECA, even if the statute does not provide a clear mechanism to resolve them. In addition, however, there was a distinct possibility in December 2000 that the Florida legislature, controlled by Republicans, would take its own action to resolve the issue of Florida’s electors outside the scope of the ECA entirely.

The predicate for this action was section 2 of Title 3, which provides that “[w]henever 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.” Although this provision is codified in the same title as the ECA, it was enacted in 1845, 42 years before the ECA. The ECA has no rule explicitly addressing the scenario in which a state legislature purports to appoint electors pursuant to section 2 of Title 3. One might argue that the ECA’s general counting rules apply, but one might alternatively argue that the state legislature’s action under section 2 trumps those rules.

For example, suppose that, following a presidential election, a state’s governor believes one slate of electors was chosen and issues them a certificate of ascertainment. The state legislature, however, believes the state “failed to make a choice” and appoints a different slate of electors. Should the governor’s slate prevail because the ECA’s tie-breaking rules favor electors that have been certified? Or should the legislature’s slate prevail because section 2 gives it, not the governor, the power to decide whether the state has failed to make a choice?

As in previous scenarios, the key point here is not whether one argument is better than the other, but that there is no way of resolving the controversy (absent judicial intervention) unless both houses agree. Thus, if the Florida legislature had appointed electors and the Florida courts found that the Gore electors had been appointed as a result of the popular election, there would almost certainly have been a deadlock between the two houses of Congress. (Not surprisingly, congressional Democrats had already signaled that they did not believe the Florida legislature had the power to appoint electors under the circumstances presented.).

If you agree with me that Congress would have deadlocked anyway, it probably would not have mattered much whether the Florida legislature ultimately acted. But if you think the ECA otherwise might have provided a smooth resolution to any counting issue with respect to Florida’s electors, the potential for action by the state legislature introduces an additional level of uncertainty into the process.

It is also worth noting that the Florida legislature may not have confined itself to appointing electors. Under one plan that was floated, the legislature would pass four separate bills: (1) a bill to find that Florida had failed to resolve the election controversy by December 12; (2) a bill reciting the legislature’s authority to appoint electors and confirming that the legislature was exercising that authority; (3) a bill ascertaining the identity of the electors appointed; and (4) a bill authorizing the governor to certify the appointment.

The idea was that the first bill would establish that Florida had “failed to make a choice” in the popular election, the second would show that Florida was now appointing electors (which was crucial for determining the total number of electors needed to win the presidency without the election being thrown into the House under the 12th amendment, as discussed later), the third would identify the electors appointed, and the fourth would ensure that the electors received the benefit of the ECA’s tie-breaking preference for certified electors.

Whether this elaborate plan was practical or necessary, it illustrates the determination, at least on the Republican side, to identify and exploit every legal and procedural advantage that might influence the outcome of the counting process. Going by the remarks of former Solicitor General Dellinger at the ACS conference last month, in which he recalled considering whether the outcome might have turned on which envelope Vice President Gore chose to open as presiding officer, there was a similar level of preparation on the Democratic side.

 

Control of the Senate

Up to this point I have assumed that the Democrats would have had control of the Senate during the electoral counting process. This assumption is justified by the fact that the results of the 2000 election left the Senate divided 50-50, with Vice President Gore providing the tie-breaking vote in favor of the Democrats.

It is, however, worth pointing out that this is an exceedingly narrow margin (in case you couldn’t work that out on your own), and one can easily imagine that this fact could engender subsidiary disputes that might exacerbate the appearance or reality of a constitutional crisis. For example, Professor Harrison points out that if Republicans believed that the outcome of the presidential election depended on gaining temporary control of the Senate, they could have objected to the seating of the senator from Missouri, Jean Carnahan, who was appointed to fill a vacancy which arose when her husband, the Democratic nominee, died prior to the election but won it nonetheless. John Harrison, Nobody for President, 16 J. L. & Pol. 699, 708-09 (2000). As Harrison notes, there was some question about the legality of that appointment, at least enough to justify the Republicans (who would have had a majority until Mrs. Carnahan was seated) in referring her credentials to the Committee on Rules and Administration, rather than seating her immediately. Id. Such constitutional hardball on the part of the Republicans would likely have been met in kind by the Democrats, with what end result cannot be predicted.

Other issues might have arisen. Presumably Gore, as the President of the Senate, had the power to break ties with respect to Senate votes on objections or other questions under the ECA, but that precise question has never arisen and might have been the subject of dispute. Points of order might have been raised with regard to Gore’s conflict of interest (as well as that of his running mate, Senator Lieberman) in voting on these matters, though these would probably have been more of political than legal significance. And Gore’s tenure as President of the Senate was to end on January 20, of course, possibly creating an incentive for Republicans to delay matters until then.

All in all, the unusual parity in the Senate added even more uncertainty with respect to how the electoral count might play out.

 

Election by the House

One crucial question deliberately unaddressed by the ECA relates to the legal effect of not counting one or more electoral votes. The 12th amendment provides: “The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such a majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.” The question is whether the electoral votes not counted by Congress are nonetheless part of the “whole number of Electors appointed.”

During the 2000 election controversy, if Congress did not count any of Florida’s 25 electoral votes but the whole number of electors remained at 538, then neither Bush nor Gore would have had a majority of the electors, and the election would be thrown into the House. On the other hand, if Florida’s electors were subtracted from the whole number, then Gore, with 267 votes, would have a majority of the whole number (513).

The issue here was extremely important and (remains) completely unsettled. The issue was debated in the Senate during the consideration of the ECA and “[g]ood arguments were raised on all sides of the question.” Siegel, 56 Fla. L. Rev. at 653. Two noted Senate lawyers, William Evarts (our old friend) and George Hoar, in particular disagreed on this point. (Fun fact: Evarts and Hoar were cousins and descendants of Roger Sherman).

Senator Evarts argued that the whole number of electors is not affected by the failure to count some of the votes, while Senator Hoar argued that such uncounted votes “must be deducted from the whole number of electoral votes in calculating the majority necessary to a choice.” John W. Burgess, The Law of the Electoral Count, 3 Pol. Sci. Q. 633, 650 (1888); see also id. at 651 (“When two such able lawyers as Senators Evarts and Hoar disagree, . . . it certainly is to be concluded that there is necessity for greater clearness and exactness upon this point.”). The ECA avoids the issue, probably in order to preserve the “delicate web of compromises” needed to secure its enactment. Siegel, 56 Fla. L. Rev. at 653-54.

Not surprisingly, House Republican leadership was, shall we say, leaning strongly toward the Evarts position in preparing for a possible contested electoral vote count. For example, staff pointed to statutory language that “[t]he whole number of electors shall be equal to the number of Senators and Representatives to which the several States are by law entitled.” 3 U.S.C. § 3 (emphasis added). This bolstered the position, discussed earlier in regard to potential action by the Florida legislature, that the number of electors appointed would not necessarily be the same as the number of electors ascertained.

I think it safe to assume that congressional Democrats would not have agreed with this analysis and would have instead taken the Hoar position. This position also had support in the constitutional text and congressional precedent. Jack Maskell & Elizabeth Rybicki, CRS Rep. RL 32717, Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress 5 (Nov. 30, 2012).

As important as the underlying substantive question is what happens if the two houses disagree (i.e., one house believes that a person has received the necessary majority to become president and the other house believes that no one has a majority). I will address that in the next (and final!) section.

 

Deadlock and Constitutional Crisis

In my previous comments, I have suggested that any scenario in which the Florida election contest continued and eventually resulted in a determination in Gore’s favor would likely have produced a deadlock in Congress. But what exactly does such a deadlock entail? I can think of three possibilities: (1) a counting halt; (2) counting without announcement; and (3) dueling presidents.

In the first case, the parties/houses disagree on whether or how to count Florida’s vote and the count is therefore halted before the certificate from the next state (Georgia) is opened. This might happen if the presiding officer declined to rule on the dispute, if he issued a ruling but the tellers could not agree on recording the votes, or if either chamber (presumably it would have been the House) voted to withdraw from the count.

Support for such a counting halt may be found in the ECA’s mandate that “[n]o votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of.” 3 U.S.C. § 15.

The ECA also places limits on how long the joint meeting can recess, providing: “But if the counting of the electoral vote and the declaration of the result shall not have been completed before the fifth calendar day next after such first meeting of the two Houses, no further or other recess shall be taken by either House.” 3 U.S.C. § 16. However, as I imagine the drafters of the ECA realized, such a provision cannot force Congress to remain physically present in the Hall of the House. If no resolution could be reached, either Congress would ignore the provision or some arrangement would be made to keep the joint meeting technically in session with a minimum of inconvenience to the members.

In the second case, the counting process would be completed but no result would be announced because the parties/houses disagreed on the legal effect of the counting. This would be most likely if it were agreed that no votes from Florida would be counted (so it would be possible to move on to the next certificate), but there was a disagreement as to whether Florida’s electors still counted as part of the “whole number of electors.” The resolution of this disagreement would determine whether Gore was president due to having a majority of 513 electoral votes or whether the presidential election would be thrown into the House, and the vice presidential election into the Senate, due to no one having a majority of 538 electoral votes. By stopping the process before the announcement of the results, the joint meeting could forestall the need for the House to “immediately” choose a president as the 12th amendment requires.

The third case is one where the process is not stopped and there is a dispute to who has actually been elected. This could be the case if the presiding officer (i.e., Gore) announced the result indicating that he had been elected president, while the House proceeded to conduct an election under the 12th amendment, resulting in Bush being chosen.

Presumably attempts would be made to resolve any of these situations through litigation and/or negotiation. But these efforts would have to work very fast to succeed before the terms of the incumbent president and vice president expired at noon on January 20.

What happens then? In theory, the 20th amendment should prevent the occurrence of an “interregnum” in which on one may exercise the power of the presidency. This amendment provides:

If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

(emphasis added).

There are some interesting questions that could be raised about this language and its relationship to the presidential succession provisions codified at 3 U.S.C. § 19. For present purposes, however, I will assume that in the first two cases described above, where essentially the parties agree to a pause in the electoral vote process in order to resolve the issue of the presidency in some fashion, it would be agreeable to everyone that the conventional line of presidential succession should be followed if no resolution was reached by January 20. Thus, there being no vice president elect, the job of acting president would go to the incumbent speaker of the house, one Dennis Hastert.

I will note here that at the ACS conference last month it was suggested by Professor Karlan, citing Judge Richard Posner, that neither Hastert nor Senate President Pro Tem Strom Thurmond (who would have been next in line after Hastert) would have accepted the position of acting president because it would have required resigning from Congress. Be that as it may, my understanding at the time, from a source more knowledgeable on the subject than Karlan or Posner, was that Hastert was prepared to serve as acting president if need be.

Regardless, there could have been controversy over the right of any person to serve as acting president in the third case, namely where the parties agreed that someone had already been elected president. In that case it could be argued that a president had already been chosen so that the 20th amendment was inapplicable. See Nathan L. Colvin & Edward B. Foley, The Twelfth Amendment: A Constitutional Ticking Time Bomb, 64 U. Miami L. Rev. 475, 530 n. 287 (2015). The only dispute, the argument would go, is over whom has been chosen (note the analogy to the question of whether Florida “failed to make a choice” in the popular election).

In this situation there could be four plausible positions on who was entitled to exercise the powers of the presidency: (1) Bush; (2) Gore; (3) Hastert; and (4) nobody. How such a mess might be straightened out is beyond me. But I am guessing there would be many people pointing the finger at SCOTUS for failing to resolve the matter when it had the chance. And one can only imagine how the chorus of blame would be magnified if it appeared that this chaotic situation led to, say, lack of preparedness for a major terrorist attack later that year.

If this doesn’t amount to a “constitutional crisis,” it seems to me that it is something worse.

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