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.


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How to Count to 270: The Electoral Count Act and the Election of 2000

To understand the congressional battlefield with regard to the counting of the 2000 presidential vote, we will need a (mercifully) brief review of the law and procedure of electoral vote counting, such as it is. For more comprehensive but less merciful discussions, see Stephen A. Siegel, The Conscientious Congressman’s Guide to the Electoral Count Act of 1887, 56 Fla. L. Rev. 541 (2004) and Vasan Kesavan, Is the Electoral Count Act Constitutional?, 80 N.C. L. Rev. 1653 (2002).

The Basic Counting Procedure

As discussed in my original post, the Constitution does not say who, if anybody, has the “power” to count electoral votes. It says “the votes shall . . . be counted,” apparently referring to a mathematical task that could be performed by anyone who has mastered addition. In current congressional practice, this task is performed by four tellers, who consist of two members of each house appointed by the presiding officers thereof (with one teller from each party in each house).

To see how this works in an ordinary and uncontested situation, see this video of the counting of the electoral vote from the 2012 presidential election. After the members of the House and Senate file in to the chamber, Vice President Biden calls the four tellers (Senators Chuck Schumer and Lamar Alexander and Representatives Candace Miller and Robert Brady, respectively the chairs and ranking members of the Senate Committee on Rules and Administration and the Committee on House Administration) to come forward. The opening and reading of the certificates of the states (plus the District of Columbia) is done one at a time, proceeding in alphabetical order.

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What the 1960 Hawaii Presidential Election Meant for Bush v. Gore

On December 11, 2000, the day before the Supreme Court issued its Bush v. Gore ruling, Congresswoman Patsy Mink (D-HI) circulated this Dear Colleague entitled “1960 Hawaii Presidential Election Provides Roadmap for Resolving Florida Election Dispute.” As Congresswoman Mink explained, in 1960 Richard Nixon was originally declared the winner in Hawaii by 141 votes over John F. Kennedy, and the Nixon electors were certified by the governor. The results were contested in court, and on elector balloting day both the certified Nixon electors and the uncertified Kennedy electors cast ballots.

Subsequently, the court-ordered recount resulted in Kennedy being declared the winner by 115 votes. The court entered judgment in favor of Kennedy, and the Republican governor of Hawaii certified the election of the Kennedy electors pursuant to the court judgment. When the certificates from Hawaii were presented during the electoral vote counting, the President of the Senate (i.e., Vice President Nixon) suggested that the certificate of the Kennedy electors be accepted. No one objected and Hawaii’s three electoral votes were counted for Kennedy.

How, one might ask, did this episode provide a “roadmap” for the resolution of the Florida recount? Surely Mink (a University of Chicago trained lawyer, after all) understood that the Hawaii governor’s certification of a particular 1960 election contest conducted under Hawaiian law says nothing about whether the Florida governor should or would certify a 2000 contest conducted under Florida law and presenting completely different factual and legal issues. To take just one example, the Hawaii case had no bearing on whether Florida law required that any presidential election contest be completed by the “safe harbor” date of December 12. See Bush v. Gore, 531 U.S. 98, 110-11 (2000) (stating that any contest that lasted beyond December 12 would constitute “action in violation of the Florida election code”).

As a matter of congressional precedent, one might argue that the disposition of the Hawaii electoral vote supports the proposition that the President of the Senate may determine that the certified result of an election contest should be preferred over the certified result of the initial count, even when the contest was not decided until after the electors voted. One might make this argument, except for a small detail omitted from Mink’s Dear Colleague. When it came time to count Hawaii’s vote, Nixon stated: “In order not to delay the further count of the electoral vote here, the Chair, without the intent of establishing a precedent, suggests that the electors named in the certificate of the Governor of Hawaii dated January 4, 1961, be considered as the lawful electors from the State of Hawaii.” 3 Deschler’s Precedents of the House of Representatives ch. 10, § 3.5 (emphasis added).

Even if Nixon had not made this reservation, the precedential value of the Hawaii episode would have been minimal. Nixon did not purport to make a ruling or exercise any power as presiding officer; he merely made a proposal, against his own interest, as to how to treat three electoral votes that would not have changed the outcome of the election anyway. Moreover, no one objected to his proposal. It is therefore difficult to see how this would have had any precedential effect, either as to procedure or substance, in an actual dispute over counting Florida’s electoral votes.

The Hawaii episode, however, does help to illustrate the two paths by which Congress, absent intervention by SCOTUS, might have resolved the 2000 presidential election in a relatively smooth manner (i.e., without a “constitutional crisis”). The first path would have involved Vice President Gore accepting Bush’s victory and proposing, as President of the Senate, that the votes of Florida’s Bush electors be counted. This likely would have happened if the Florida recount/contest had confirmed Bush as the winner.

The second path would have involved the Florida courts deciding the contest in Gore’s favor and the Florida governor (who happened to also be Bush’s brother) following the example of the Hawaii governor and certifying the result of the election contest. As a legal matter, the conclusiveness of an election contest judgment plus certification is debatable, but politically the certification would presumably have signaled the willingness of the Bush camp to accept Gore’s victory.

In hindsight, we know that there was a reasonable possibility that events would have unfolded along the first path if the Supreme Court had not intervened to stop the Florida recount. Subsequent media analysis indicated that if the recount had taken place in the manner ordered by the Florida courts (without further changes or modifications), Bush would have won. Of course, there was no way to know this in advance and even today we cannot be sure what would have happened.

On the other hand, we can say with a high degree of assurance that events would not have followed the second path. Given the numerous factual and legal controversies surrounding the recount and the Florida judicial process, it is difficult to imagine the Bush camp would have accepted a Gore victory based solely on the authority of the Florida supreme court. It is likewise highly doubtful that Florida Governor Bush would have certified the outcome (alternatively, he might have done so with such reservations as to deprive the certification of its utility).

Furthermore, any attempt to have Florida’s electoral votes counted for Gore under these circumstances would have faced fierce resistance in Congress, specifically from the House of Representatives led by Speaker Hastert and Majority Leader Delay. As I will discuss in my next post, the House had a number of options for blocking (or attempting to block) Gore’s ascension to the presidency and there is reason to believe it would have employed some or all of them.

Nobody for President

This is not an endorsement, but the title of an article written by a University of Virginia law professor in the immediate aftermath of the 2000 presidential election. See John Harrison, Nobody for President, 16 J. L. & Pol. 699 (2000). Professor Harrison rejects the claim that “Congress is the final judge of electoral votes,” contending that under the Constitution “Congress has no such authority, nor does anyone else.” Id. at 701. He acknowledges that Congress’s unique role in the counting of electoral votes may make it the de facto decisionmaker in some circumstances, but he argues that in those cases “Congress to a large extent would be acting, not as the legislature established by the Constitution, but as an extraordinary political body seeking to hammer out an extra-constitutional solution to a problem the Constitution cannot solve.” Id. at 707. This, he suggests, is basically what happened when Congress created a special Electoral Commission to resolve disputed electoral votes from the Hayes-Tilden election of 1876. Id.

I bring this up because I recently attended a program held by the American Constitution Society to commemorate the 15th anniversary of the Supreme Court’s decision in Bush v. Gore, 531 U.S. 98 (2000). (I guess the appropriate anniversary gift would be a crystal ball). The panel consisted of Judith Browne Dianis, Rick Hasen, Pam Karlan and Curt Levey, with Joan Biskupic moderating. You can watch the whole program here.

Contra Professor Harrison, a number of participants in the ACS program seemed to take it for granted that the Constitution assigns to Congress the role of resolving controversies such as that which arose over Florida’s electoral votes in 2000. Professors Hasen and Karlan, in particular, suggested that the Supreme Court should have deferred to Congress and declined to intervene in the Florida recount. Doing so, they said, would not have resulted in a “constitutional crisis,” but simply in the ultimate decision being made by a political body as the Framers intended.

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