2000, George W. Bush Defeats Al Gore, Ralph Nader: A Case Study On Choosing Electors – Guest Essayist: The Honorable John N. Hostettler

 

Congress Sets Times for Electors

Article II, Section 1. Clause 4:

The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

Title 3, Chapter 1 of the U.S. Code describes the timeframe for the choosing of and voting by members of the Electoral College.

Sec. 1: The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.18

Sec. 7: The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct.19 [emphasis added]

Choosing Electors: A Case Study

The presidential election of 2000 provided an excellent insight into the practical application of the Constitution’s provision for choosing electors for that office. After the polls closed on November 7, 2000, attention soon turned to the state of Florida and a growing controversy over punch-card ballots used in a few of its counties. The combined count of the electors from all of the states presumed to be assigned to the Democrat candidate Albert Gore, Jr. Republican candidate George W. Bush indicated that the race was going to be close that the results of the popular vote for president in Florida would determine the outcome of the race. This was due to the fact that the assignment of electors would be determined by that popular vote.

Concerned that the Florida vote count was going to be marred by the ballot controversy, attorneys for candidate Gore challenged the results of the statewide popular vote count in a Florida court of law. After the state’s statutory deadlines for certifying election results passed, the Secretary of State for Florida certified that George W. Bush was the winner of that state’s popular vote. Acting upon that certification, Florida’s governor notified federal authorities that Florida’s presidential electoral votes would be cast for Bush.

On December 12, 2000, in their opinion Bush v. Gore, the United States Supreme Court overturned a Florida Supreme Court opinion which reversed the lower state court’s rejection of Vice President Gore’s contest mentioned earlier. The federal High Court determined that a statewide manual recount of certain votes ordered by the Florida State Supreme Court was invalid due to “the use of standardless [sic] manual recounts” thereby creating “a violation of the Equal Protection Clause” of the United States Constitution’s Fourteenth Amendment.20 This opinion was delivered by the United States Supreme Court four days after the Bush campaign petitioned the High Court to hear arguments against the Florida Supreme Court’s decision. The turnaround time from petition to opinion was highly unusual for the highest court in the land – unusual but not surprising given the time constraint that the judiciary in the United States was facing.

Returning to the federal statutory deadline for electors to meet and cast their votes for president, in the year 2000 the “first Monday after the second Wednesday in December” was December 18. Following the election on November 7, the Republican Secretary of state of Florida certified the Republican candidate for president winner of the state’s popular vote. According to state law, the certification by the Florida Secretary of State effectively assigned electors who had been nominated by the Governor and had taken an oath to cast their ballots for the “ticket” which had been certified the winner of the popular vote.21 These electors were scheduled then to meet and cast their votes on December 18 according to federal law. Given that the Florida State Supreme Court ordered a statewide manual recount of certain ballots then days before the state’s election were statutorily bound to meet and cast their votes for president, it was highly unlikely that Florida would have waited until they manual recount concluded that thereby potentially failed to appoint their electors in a timely manner. Because as the Constitution says, not only does Congress set the time for the meeting of the electors to cast their votes, Congress also is obligated to set the timeframe for the actual appointment of the electors.

So it is that in the same Title 3 of the U.S. Code that established both the time for the meeting of the electors to cast their votes and the time for the appointment of the electors by the states, it also effectively established the deadline for the appointment of electors whose state has experienced a “controversy or contest concerning the appointment of all or any of the electors of such State.” That statutory deadline for appointment of electors whose appointment was subject to such a controversy or contest is “at least six days before the time fixed for the meeting of the electors” and has been so since 1948.22 [emphasis added] The question is: In the year 2000 which included a significant controversy concerning Florida’s appointment of presidential electors, what date was “six days before the time fixed for the meeting of the electors?” Asked in a different way, in the year 2000, what date was six days prior to December 18? The answer is: December 12, 2000 – the same day the United States Supreme Court issued their uncharacteristically speedy opinion in the case Bush v. Gore.

In the final analysis, the opinion of the United States Supreme Court in Bush v. Gore was apparently a moot one. By the time the highest court in the land issued their opinion on December 12, 2000, the Republican Florida Secretary of State had already certified the Republican candidate for president the winner of the state’s popular vote;23 the Republican Governor of Florida had already filed the necessary paperwork designating Florida’s electors pledged to the Republican candidate for president pursuant to federal law;24 and the Republican majority Florida House of Representatives had already vote to pledge all of Florida’s electors to the Republican candidate for president.25 Additionally, the opinion was apparently moot only because if the Supreme Court had taken one additional day to formulate that opinion it would have failed to decided prior to the statutory requirement that the state appoint its electors “at least six days before the time fixed for the meeting of the electors” rendering the opinion technically moot.

While the judicial proceedings on the state and federal level mad for good theater, the Republican-controlled Florida state government was not going to make history by missing the deadlines for including the votes of their state’s electors in the combined count conducted by the president of the Senate of the United States. The United States Supreme Court knew this, hence the timeliness of their opinion. They knew two additional things as well. First, the United States Constitution gives no authority to either the federal or state judiciaries in the determination of the president and the vice president. Second, Article II, Section 1 of the United States Constitution gives explicit authority in the regulation of the choice of and voting by electors exclusively to the Congress and the states “any thing in the constitution or laws of any state to the contrary notwithstanding” according to the Supremacy Clause of Article VI of the US Constitution.

Choosing Electors: A Final Word

Today it’s the practice of every state of the Union to provide “ballot access” to every party which meets certain requirements pursuant to the laws of the respective states. This concept of ballot access simply means that as long as a candidate from a particular party has previously acquired the requisite level of public support in a prior election or petition process in the state or United States, that party is eligible for inclusion on a ballot without having to rely on the voters to “write in” the name of a candidate of the party in question. This access is available for candidates for president and vice president of the United States as well as candidates for the federal House of Representatives and Senate, the state House of Representatives and Senate, state governors, city mayors, county sheriffs, etc.

So it is that eligible voters in every one of the United States may directly cast a vote for candidates seeking the office of the president and vice president of the United States. When the polls close on Election Day, the votes for president and vice president are counted and in all but a few states, the candidate for president of the United States who receives the most votes in a state is effectively promised the support – for himself and his vice presidential running mate – of all of the electors eligible to be appointed by that state. This promise is according to the law of the state and is realized by the appointment of the promised electors by the state legislature.

As an aside, the two current exceptions to this all or nothing assignment of electors are the states of Maine26 and Nebraska.27 In the case of these two states, the statewide winners receive 2 electoral votes – equivalent to the number Constitutionally assigned to each state for the number of electors from the state – and the winners of each of the congressional districts receive 1 electoral vote per district won according to the number Constitutionally assigned to each state for the number of representatives from the state. Although the numerical assignment of electors in the state of Maine and Nebraska are different than that of the other states, that assignment of electors is still done for their respective state legislatures.

The actual votes of the electors chosen by all states is preliminarily based not so much on a guarantee as it is a good faith promise by the individuals chosen by the states’ legislatures to serve as members of the Electoral College. The reality that a presumed pledge made by any person considered by a state’s legislature to support one particular candidate for president is no more than a good faith promise is based on the fact that the Constitution to this day places no requirements on the electors appointed by the states. Therefore, electors are free to cast their ballots for whomever they wish regardless of any good faith promise that a state’s legislature may have presumed to have been made. This reality is borne out in the history of the Electoral College in that there have been instances of so-called “faithless electors.” The ignominious title of “faithless elector” has been applied to those few past members of the Electoral College who ultimately gave their votes to a candidate for president other than the person to whom the state legislature that appointed the elector believed that elector had pledged support. However, this supposed act of faithlessness has no penalty assigned to it because, once again, the Constitution has assigned no presupposed requirements on the appointed electors except adherence to the few qualifications for the office of president (i.e. citizenship, age, and residence). The electors for president are just as much free agents today as they were when they chose George Washington to be the first president of the United States.

The one significant departure from the exclusively appropriate wording used by the Constitution’s framers is that the state legislatures today appoint the electors in a similar way that the state legislatures originally chose federal senators. But while the Constitution originally stated that “the Senate…shall be composed of two senators from each state, chosen by the legislature thereof,” the Constitutional requirement for selection of presidential electors requires that “each state shall appoint, in such manner as the legislature may direct, a number of electors” who shall then vote for president and vice president. The state legislatures are not to choose presidential electors. The state legislatures are to direct the manner in which their respective states (i.e. the people) are to appoint presidential electors. Forty-five years after Constitutional Convention delegate Alexander Hamilton wrote that “the people of each State shall choose a number of persons as electors…who shall assemble within the State, and vote for some fit person as President,” Joseph Story observed that the “appointment of the president…is delegated to persons chosen by the immediate act of the people, for that sole and temporary purpose…The president…would be far more independent, than if chosen by a legislative body [e.g. state legislature].”28

While it may be argued that the appointment of presidential electors by the state legislatures is not equal to the legislatures choosing the president directly, it’s not at all the same as the electors being “chosen by the immediate act of the people for that sole and temporary purpose.” By effectively democratizing a process which was originally established to protect against what Hamilton referred to as the “tumult and disorder” that would accompany a direct popular election of the president, the state legislatures have guaranteed that the candidates for that office would exhibit what he called the “talents for …the little arts of popularity” which sacrifice the long term prosperity of the Republic for short term deference to the desires of the masses.

The Honorable John N. Hostettler is a former Congressman from Indiana, and currently serves as Director of the D. James Kennedy Center for Christian Statesmanship. He is the author of Ordained and Established: A Statesman-Citizen’s Guide to the United States Constitution.

Excerpt from Chapter 3 entitled, “The Executive,” from Ordained and Established: A Statesman-Citizen’s Guide to the United States Constitution by The Honorable John Hostettler, reprinted with permission.

18 Act of June 25, 1948, Public Law 80-771, U.S. Statutes at Large 62 (1948): 672.

19 Ibid., 673.

20 Bush v. Gore, 531 U.S. 98, 103 (2000).

21 Florida Statutes, Title IX, Ch. 103, http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0100-0199/0103/0103.html (accessed June 20, 2013).

22 Act of June 25, 1948, 673.

23 Todd S. Purdium, “COUNTING THE VOTE THE OVERVIEW; BUSH IS DECLARED WINNER IN FLORIDA, BUT GORE VOWS TO CONTEST RESULTS,” New York Times, November 27, 2000.

24 David Barstow and Somini Sengupta, “CONTESTING THE VOTE: THE FLORIDA LEGISLATURE; Jeb Bush Is Said to Be Willing to Sign Bill Ensuring Republican Victory in Florida,” New York Times, November 28, 2000.

25 John Wildermuth and Robert Salladay, “Florida House Votes to Pick Bush Electors / Legislators passed resolution 79 to 41 after rancorous debate,” San Francisco Chronicle, December 12, 2000.

26 Maine Revised Statutes, Title 21–A, §805, http://www.mainelegislature.org/legis/statutes/21-a/title21-Asec805.html (accessed June 19, 2013).

27 Nebraska Revised Statutes, Title 32, §714, http://nebraskalegislature.gov/laws/statutes.php?statute-32-714 (accessed June 19, 2013).

28 Story, Commentaries on the Constitution of the United States, Vol. 3, Book 3, Ch. 36, §1451, 316, 317.

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2 Responses to “2000, George W. Bush Defeats Al Gore, Ralph Nader: A Case Study On Choosing Electors – Guest Essayist: The Honorable John N. Hostettler”

  1. Publius Senex Dassault says:

    I think Nebraska and Maine have the best approach. Here is why:

    1) The all or nothing approach is mathematically absurd. CA had 12,000,000 voters in 2012. If 6,000,001 voted for Obama while 5,999,999 voted for Romney, 2 voters decided that all Californians and all 55 goes to Obama. That is 10.2% of all Electoral votes, and 20% of the required Electoral votes needed to win. 2 people control 20% of needed votes! To those who say this analysis is unrealistic, Florida was decided based on just few hanging chads. Using NE system, Obama would have received 33 districts plus 2 Senate votes for 35, 6.5% of all EC votes, and 13% of required to win.

    2) States are not homogeneous. They weren’t when the Constitution was ratified. See James Madison and the Struggle for the Bill of Rights where Virginia’s support varied by district. New Orleans, Lafayette, Baton Rouge, Shreveport are all different. New York City does not represent Buffalo or Adirondacks.

    3) The party and candidate campaigning activity reveal the system is skewed towards a few high population, toss-up, winner take all States. They do not even target big, traditional state strongholds like CA because winning 50.00001%, 52% or 61% is all the same. They would fight for every toss district instead of a few toss up states.

    4) It takes 7 LA size states [8 EC votes] to equal 50.01% of CA voters. Under the district system a district in LA = a district in CA, TX, NY, MI, FL, OH, IL, PA.

    5) Using districts reduces problems noted under a pure popular vote system. If fraud occurs in a district, it is reduced to 0.19% of the population.

    I do not support a pure popular vote system. But the current WTA system is skewed badly to a few voters deciding all. MY LA VOTE IS IRRELEVANT.

    BTW – kudos to SCOTUS for reigning in the Presidential Executive Order on Immigration. Now Congress do your job so the next President doesn’t feel like she/he needs to go all Caesar on us.

    PSD.

  2. Publius Senex Dassault says:

    I have argued previously that the current winner take all Electoral College alienates and disenfranchises whole groups [States]. BUT …

    I acknowledge an EC process as “originally established” would “protect against what Hamilton referred to as the “tumult and disorder” that would accompany a direct popular election of the president.” However, the current modified EC provides too much protection from chaos to the point where it now anesthetizes many voters. Furthermore, I am concerned that the guardians of the people and Constitution [Congress] modified the process so they could use it to THEIR advantage. I’ll confess this may be more perception/emotion than fact, but perception formed by observing elections being decided by a few large, on the fence States.

    “a process which was originally established …” where “… the state legislatures have guaranteed that the candidates for that office would exhibit what he called the ‘talents for …the little arts of popularity’ which sacrifice the long term prosperity of the Republic for short term deference to the desires of the masses.” I am struggling to see how the current EC process accomplishes what Hamilton correctly warned against, protecting us from weak, pitiful candidates due to mass popularity. This may be the result of the primary process, but the EC is not a protection in the current form. Appropriately redundant, see J. Turner’s essay#1.

    Side note: Britons stunned the pun dents today voting to exit the EU. National sovereignty won out over perceived security. I think our 2016 election will come down to a referendum on whether to continue the two decade path towards global harmonization or an America 1st priority. The Brit’s may embolden Americans to choose an wild card [A. Jackson] over a no surprise politician [H. Clay]. I apologize to A.J and H.C, whom I knew, and DT and HC, you are no AJ or HC :).

    PSD

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