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DECISION 2000 / AMERICA WAITS

Florida Lawmakers Cite Broad Power to Award Electors to Bush

November 28, 2000|RONALD BROWNSTEIN | TIMES POLITICAL WRITER

TALLAHASSEE, Fla. — Amid rising partisan tensions, the Republican majority in the Florida Legislature moved closer Monday toward an unprecedented effort to directly award the state's 25 electoral votes to George W. Bush.

In legal papers filed with the U.S. Supreme Court, the Legislature asserted broad authority to allocate Florida's electoral votes even if the state courts order further recounts of presidential ballots that could give the lead to Democrat Al Gore.

Speaker of the House Tom Feeney and Senate President John McKay, both Republicans close to Gov. Jeb Bush, signaled Monday that a special legislative committee meeting for the first time today would examine the Legislature's authority to appoint its own slate of electors.

"If this controversy is . . . unresolved by Dec. 12, the Legislature has the authority and may have the responsibility to step in," said McKay, who represents a Tampa, Fla., district.

Using even stronger language, Feeney--who served as Jeb Bush's running mate in his unsuccessful 1994 gubernatorial bid--insisted that the Florida Supreme Court had usurped the authority of the Legislature by permitting counties to conduct manual recounts through Sunday. He strongly hinted that the Legislature may move to name its own electors if the state courts don't quickly dismiss Gore's formal contest against Secretary of State Katherine Harris' certification of George W. Bush as the official winner in the state.

"I do not want to be the House speaker who presides over the undermining of the legitimate powers and authority of the Florida House," Feeney said.

Feeney offered only one hypothetical that might cause the Legislature not to appoint its own slate of electors: a U.S. Supreme Court decision overturning last week's Florida Supreme Court decision and reinstating Harris' effort to certify Bush as the winner on Nov. 14.

These signals from Republican leaders drew a sharp rebuke from Democrats. House Minority Leader Lois J. Frankel from Palm Beach, Fla., sent Feeney a sternly worded three-page letter Monday denouncing the Legislature's move toward intervention in the presidential race.

"The State Legislature should not become an arm of any one presidential campaign," she wrote. "We believe surrendering the independence and integrity of this great institution in this fashion would place a dark partisan stain on our Legislature."

Democrats, though, can do little more than complain: Republicans hold a 77-43 majority in the state House and a 25-15 advantage in the Senate.

In effect, the Legislature could be steaming toward a historic confrontation with the state courts. Under the formal contest to the election result that Gore filed Monday, state courts will determine whether to authorize further recounts that could give the vice president the lead in Florida--and thus possibly the 25 electoral votes he needs to win the presidency.

No state legislature has ever voted to authorize a slate of electors to compete with those chosen in a popular vote.

But in a brief they jointly filed with the U.S. Supreme Court on Monday, the Florida Senate and House aggressively claimed the constitutional power to do just that.

The brief argues that federal law gives the Legislature broad power to name its own slate of electors. It offers two distinct justifications for such a move: if the legal controversies surrounding the election are not settled in a "timely manner" or if the Legislature determines that the state court decisions effectively rewrote the rules for allocating Florida's electors after election day.

In a sweeping assertion of authority, the Legislature argues that the "Legislature itself, and not the courts," can determine when the state has failed to make a "timely" choice of its electors. Most often, legislators have suggested that they would act only if lawsuits challenging the Florida result are still unresolved on Dec. 12, the legal deadline for settling a state's electoral college representation. But legislative aides say the language in the brief means the Republican majority believes it has the constitutional right to appoint its own electors even if all litigation is settled before then.

And, trying to preempt further challenges, the Legislature asserts in the brief that Congress has no right to object to any slate of electors it might appoint, presumably even if the recounts produce a competing slate of electors for Gore: "Congress has a constitutional obligation to count the votes of any elector who was indisputably appointed by the Legislature," it argues.

Even more strikingly, the brief argues that if the U.S. Supreme Court says that the Florida Supreme Court was within its authority to extend the deadline for manual recounts, the Legislature could still decide the state court overstepped and use that to justify appointing its own electors.

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