A Shifting Burden With Certification

A Shifting Burden With Certification

November 30, 2000
Originally published in The Washington Times

The most significant document prepared Sunday night has received almost no mention in the news.

The cameras showed the Florida Elections Canvassing Board signing the certification of the results of the election. But they did not show the next step, which was that this document was immediately sent to office of Gov. Jeb Bush. According to the staff of his legal office, he then signed a formal Certificate of Ascertainment appointing the Electors pledged to George Bush.

Early Monday morning, this Certificate of Ascertainment was deposited in the U.S. mail, registered, and addressed to the Archivist of the United States, as required by Section 6 of Title 3 of the United States Code.

The signing of the Certificate of Ascertainment is very important. The convoluted provisions of the post-Reconstruction federal statute that governs resolution of disputes over electoral vote-counting in the U.S. Congress place the Certificate in a central role, and its signing has transformed the dispute. [United States Code, Title 3, Sections 1-19.]

To begin, the media keep saying Florida must appoint its electors by Dec. 12. This is true, but irrelevant, because Florida now has electors. It might be possible for a Florida court to order the appointment of a competing slate, but it cannot undo the existing appointments. Even if it ordered Florida's governor to revoke his action and oust the electors from office, his power to do so is limited; the certificate has already gone to the Archivist of the United States in Washington, who will place it before Congress.

Of course, a Florida court might try to enjoin the electors certified by the governor from voting. But this would be unlikely to succeed, since the electors are performing federal constitutional functions, and since federal law quite clearly gives to the U.S. Congress the power to resolve disputes among competing slates of electors.

The best a Gore-leaning court could do would be to set up a conflict among competing slates. But, under the law, electors who hold a Certificate of Ascertainment signed by the governor have an immense advantage in any congressional dispute over the electoral vote count. The rules are tricky, but the bottom line is that a certificate signed by the executive of a state prevails unless it is rejected by both houses of Congress.

It is true that the federal law also provides that a determination of a dispute over the outcome of an election made by a state court acting under laws enacted before the election is conclusive. However, the U.S. Congress is the arbiter of disputes between competing slates. In which case, see the dispute resolution rules cited above. Unless both Houses were convinced that the court's judgment was legitimate, the governor's slate would win. The structure of the federal law seems designed to serve the explicit purpose of reserving to Congress the power and right to resolve quarrels among the different branches of a state government, a structure that puts a major check on any imperial ambitions of the Florida supreme court.

Another consequence of the signing is that Mr. Gore cannot try to run out the clock, delaying appointment of electors until after Jan. 6, then claiming he has a majority of the electors that were actually appointed, and that this (not the 270 voters constituting a majority of all possible electors) is all he needs.

Finally, the Florida legislature appears to be out of it. The U.S. Code says the legislature may appoint electors if the state has failed to make a choice on Election Day. But Florida has made a choice — as the certificate attests. Of course, the legislature could endorse either the existing slate of electors or ajudicially chosen alternative, an act that would carry great weight in the U.S. Congress even though it would not constitute a legally binding settlement.

In other words, so long as the U.S. House of Representatives remains convinced that George Bush is .the legitimate winner, the dispute is over.