Election 2000: The Legal Challenges

• Share

(5 of 6)

A 1948 federal statute holds that when the outcome of a presidential race is in doubt, a state's presidential electors "may be appointed...in such a manner as the legislature of such state may direct." Florida speaker of the house Tom Feeney ordered up a legal analysis that concludes that the legislature has the right to step in and select the state's 25 electors. If the outcome remains in doubt as the Dec. 12 deadline approaches, the Republican-dominated legislature may attempt simply to select the Bush electors. A more radical possibility is that if Gore is ahead of Bush in the final count, the legislature could overturn that result and certify the Bush electors.

No legislature has ever used the 1948 law to select electors, and it is not clear if the American public would accept it. Another potential minefield: passing a bill to select electors would require the approval of Governor Jeb Bush, the candidate's brother.

EQUAL PROTECTION

--Do hand recounts in some counties but not others violate the U.S. Constitution's guarantee of equal protection?

The Bush camp argued in federal court that ordering manual recounts in four counties selected by the Gore campaign denies equal protection of the law to voters in counties where no recounts have been ordered. In their briefs, the Republicans cite one-person, one-vote cases like Baker v. Carr, which struck down apportionment schemes that gave heavily populated urban districts the same representation as less populated rural ones. Here the Republicans flip the doctrine, saying that by ordering recounts in populous counties, the Gore campaign is depriving less populated counties of their right to equal representation.

The one-person, one-vote cases were aimed at laws that expressly gave some voters more representation than others. Florida's recount law, on the other hand, is designed to ensure that all voters in the state get the same vote. A recount should not give a county's voters more or less representation; it should simply ensure that everyone who cast a valid ballot is given a vote.

The two lower federal courts that heard the Republican equal-protection claim quickly dismissed it. When the U.S. Supreme Court accepted Bush's appeal last week on several other issues, it declined to hear that one.

CHECKS AND BALANCES

--Who would decide if Florida's branches of government don't agree?

One weakness of America's checks-and-balances system is the possibility of a constitutional crisis when any two branches of government are locked in conflict. It is conceivable that the Florida Supreme Court, which is heavily Democratic, and the Florida legislature, which is heavily Republican, could reach a deadlock about which set of electors rightfully represents the state.