Florida's D-Day Approaches

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AP / CBS
Hardcore followers of the Florida recount controversy might want to mark this date on their calendars: December 12.

That's the deadline for all 50 states and the District of Columbia to officially name their presidential electors. The Constitution stipulates that Electoral College members meet on the first Monday after the second Wednesday in December - in this case, December 18 - to choose the next president. But the states must make their "final determination" about whether to certify a Bush or Gore slate of electors six days before that.

Those dates were swirling in the minds of the the Florida Supreme Court justices as they decided whether to force GOP Secretary of State Katherine Harris to include hand recounts from three largely Democratic counties in the Sunshine State's final presidential tally.
"What's the date, the outside date that we're looking at and which puts Florida's (electoral) votes in jeopardy?" Florida Supreme Court Chief Justice Charles Wells asked Paul Hancock, the state deputy attorney general arguing on the Gore side, at Monday's hearing.

While the court ruled late Tuesday to include the hand counts, still in the balance are Florida's 25 electoral votes - the key to whether Democrat Gore or Republican Bush captures the White House.

So what happens if no clear presidential winner emerges in Florida by December 12, and the state's electoral votes fall into limbo? Things could turn more tangled than they are even now. For example, federal law says if the election "has failed to make a choice," then a state's electors "may be appointed on a subsequent day in such manner as the legislature of such state may direct."

In Florida, the GOP controls the new legislature, which was sworn in Tuesday. And the House speaker is Tom Feeney, a Republican who in 1994 was the running mate of Jeb Bush, the Sunshine State's governor and the brother of George W. Bush.

Feeney confirmed to The Sun-Sentinel of Fort Lauderdale on Monday that state legislative leaders and Republican Party lawyers have been pondering a legal strategy for such a scenario, something he had once called "a very long shot."

"We don't know how to do this," he told the newspaper. "It is unchartered territory. We don't know when to do it, except that something would happen before December 18."

After the Florida Supreme Court's ruling, former U.S. Secretary of State James Baker - George W. Bush's point man in the recount saga - hinted the Bush camp was considering the legislature as an option to break the electoral deadlock.

"I would not be surprised to see the Legislature perhaps take some action to get back to the original statutory provisions," he said.

One influential GOP state lawmaker concurred.

"Our power has been challenged, not just for this election," said state Sen. Daniel Webster, a former House speaker. "If tey (the state supreme court) can make this arbitrary ruling on this statute, they can make it for anything. They have clearly gone beyond their power and by doing that have jeopardized all laws."

In doing so, Webster said, "it's up to the legislature to determine a new way to determine electors, not the court."

But some Florida Democrats deplored such talk.

"It would be a travesty," said state Sen. Debbie Wasserman Schultz. "It would be a smack in the face to Florida's citizens. If the Republican leadership has a problem with this decision, there is an appeals process and that process should be adhered to."

A special legislative session could happen one of two ways. The most likely is for Speaker Feeney and the GOP Senate president to jointly call one. Otherwise, Jeb Bush as governor would have to step in and issue a proclamation. Currently, Republicans hold a 77-43 majority in the House, and a 25-15 edge in the Senate.

A bill included in a special session call - such as to change Florida law on the method of choosing presidential electors - would need only a simple majority to pass. But to do it in a single day would require a vote of two-thirds of the members of each chamber to suspend the rules - 80 in the House and 27 in the Senate - slightly more votes than the Republicans have on strict partisan terms. If not passed in a single day, it could be passed in two days with a simple majority.

The U.S. Congress, which certifies all the nation's electoral votes and the next president on January 6, could get into the act, too.

On Capitol Hill, Republicans will control the House and maybe the Senate, although with only razor-thin majorities. Whatever the fate of Florida's electoral votes at that point - including the possibility of dueling sets of electors for Bush and Gore - members of Congress from either party could challenge those votes. Together, the House and the Senate could toss out the Sunshine State's electoral votes, as allowed by the Constitution.

And if that happens, the next question that could arise might be what an Electoral College majority really is. Assuming Florida is removed from the electoral map by Congress due to the deadlock, would 270 - a majority of all 538 electoral votes - remain the magic number to the White House? Or would a majority then become 264 - a majority of the remaining 513 electors sans Florida? The latter answer would make Gore - with his 267 electoral votes to Bush's 242 - the next president.

While that unprecedented outcome would probably be unlikely given the partisan picture of the next Congress, it gives you an idea of how this saga could drag on ... and on ... and on ....