Victor Williams, Catholic University School of Law

If the appellate courts (federal and/or state)
allow either the counting of partially-punched,
spoiled ballots or fraudulently-mailed, overseas
absentee votes that run to Albert Gore’s favor,
Florida’s Republican dominated state legislature
should formally void the popular vote, and directly
appoint the state’s presidential electors. Direct
legislative appointment of the electoral slate would
moot all
ongoing litigation and related political jockeying.

The process would be quick and transparent: The state
legislature would choose to appoint either the Gore or
Bush electors through a recorded, simple-majority
vote. A formal voiding of Florida’s popular vote
would reduce concern about a conflicting national
popular vote tally. The resulting electoral college
victory would ensure a mandate, albeit very slim, for
one of the two tickets. The crucial work of
pre-inaugural transition could begin in earnest.

Chad-Molestation

Ballots with double-punches, pregnant chads,
swinging-door chads, tri chads, hanging chads, and
dimple chads all have something in common. They are
all spoiled ballots. Just read the Palm Beach County
ballot instructions that were mailed to each
registered voter: “After voting, check your ballot
card to be sure your voting selections are cleanly
punched and there are no chips left hanging on the
back of the card.”

The presence of any type of chad on a ballot
designed to be read by an optical scan is prima face
evidence of its spoilage. A voter who leaves a chad
hanging on his punch ballot has been at least
careless, and perhaps indolent in exercising the
franchise. Voters had an ample opportunity, and must
accept ultimate responsibility, to have checked their
ballots.

As Florida Secretary of State Katherine Harris knew
all along, and the rest of the nation is slowly coming
to understand, Florida law permits county canvassing
boards to determine whether the voting machines’
tabulation results “correctly reflect the votes cast.”
A partially-punched ballot is not a “vote cast.”

The initial recount proved that the tabulation
machines were properly functioning. A
partially-punched
ballot is not a “vote cast.” By attempting to
rehabilitate some partially-punched ballots,
the Palm Beach and other canvassing boards
capriciously exceeded their statutory authority.

Indeed, by intentionally removing the hanging
paper chads from ballot cards, as apparently
happened in Gore-dominant Pinellas counties,
election officials may have violated the very
election law that they enforce. It is unclear
what action would be taken against such individuals.
Perhaps the prospect of being forever labeled a
“chad-molester” by the late night television
comics is worse than any legal penalty.

Foreign Influence and Market Uncertainty

Election officials should also be concerned
about repeated complaints alleging a concerted
campaign to encourage Americans living in foreign
lands to fraudulently file nonwitnessed,
nonpostmarked overseas-absentee ballots. If such
fraudulent ballots were
to control the final result in the favor of the
Gore-Lieberman ticket, a full investigation
and further electoral delay could result.

Little wonder that America is being ridiculed across
the world. “Mickey Mouse Democracy” and “Send In the
Observers” read the banner international newspaper and
Internet headlines. Domestic and international
markets are rightly scared of the political chaos.
Scholars raise the real possibility that the election
may be defaulted into the U.S. House of
Representatives, where only one vote is given each
state delegation. Other experts warn of an Executive
Office vacancy on January 20, 2001; and Machiavellian
succession scenarios abound. The joke that Bill
Clinton is willing to stay in public housing for just
a little while longer is no longer amusing to many
Americans. Enough is enough.

Direct Appointment of the Electors

Bush supporters should recognize that
there exists a remedy – outside the judicial process.
The elected Florida state legislature has the
authority to provide a dignified, immediate, final
resolution to the state’s election debacle – by
directly appointing the state’s electors. There are
strong Republican majorities
in house of the Florida legislature.

Pursuant to the U.S. Constitution and a
longstanding federal law, the state legislature has a
duty to so act. Article II, Section 1 of the U.S.
Constitution mandates: “Each State shall appoint, in
such Manner as the Legislature thereof may direct, a
Number of Electors, equal to the whole Number of
Senators and Representatives.”

In years past, presidential electors were appointed
directly by the state legislatures. Today, as always,
each state legislature has the power to hold, or not
to hold, a popular vote. Each state legislature
determines how, or if, that popular vote is used in
the appointment of electors. This appointment
authority is absolute – before or after – any popular
election is held.

A controlling federal statute reaffirms this duty of
the state legislature. United States Code (Title 3,
Section 2) states: “Whenever 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.”

Florida’s electoral slate must be certified by
December 12 for the formal electoral college vote six
days later. The state legislature should prepare to
act as possible following its organizational sessions
scheduled for November 21, 2000.

After the new President is sworn-in next year, perhaps
the nation should rethink its antiquated electoral
processes. But, for now, the fate of the
constitutional order, the health of the national
economy, and the reputation of America
around the world rests on the shoulders of the elected
representatives of the Florida House and Senate.

If the courts ultimately allow either spoiled or
fraudulent ballots to control the final tally, all
Americans should send Florida legislature an
e-message: Honor your U.S. Constitutional duty, and
appoint your state’s presidential electors.

November 17, 2000

Victor Williams, J.D., LL.M., teaches Lawyering Skills at Catholic University’s
School of Law in Washington, D.C., and adjuncts at the
University of Virginia’s Northern Campus.