Is This A Job For Your State Rep?

One of the very few issues not dividing the country down the middle now is the prospect of the Florida legislature selecting the state's 25 electors. Almost everyone thinks that is a lousy idea - except for the most partisan Republicans. And even for them it's the last resort.

This says much about the country's deep distaste for politics and for democratic decision-making. For most, the choice about who should resolve the disputed Florida election is a no-brainer - judges should, not politicians.

Indeed, the notion of intervention by the Florida legislature is often treated as a political heist. Joe Lieberman said it "is just wrong and sets a terrible precedent...It threatens to put us into a constitutional crisis which we are not in now by any stretch of the word."

In this case, ironically, the politician's words are quite typical.

The editorialists at The New York Times, for example, accuse the Republicans of the Florida legislature of trying to "rig the Electoral College" and perpetrate an "end run around democracy and the legal process." When asked by pollsters, respondents this week disapproved of the Legislature getting involved by a 2-1 margin.

Contrary to the weight of public sentiment, intervention by the legislature is by no means a crackpot scheme. Legal experts are, in fact, quite divided over whether the legislature has the authority to name electors.

Those who argue that the legislature does have the power to select electors in an unresolved election cite for authority Article II, Section 1 of the Constitution: "Each State shall appoint in such Manner as the Legislature thereof may direct, a Number of Electors…"

The specific authorization of state legislatures to govern the appointment of presidential electors stands in notable contrast to provisions in Article I of the Constitution that give Congress, not the states, specific authority to regulate elections to the United States House and Senate.

The other basis of their argument comes from laws Congress passed in 1887. These laws were a direct attempt to avoid repetitions of the disastrous Hayes-Tilden contested election 1876. This law (3 U.S.C. Section 2) says that if a state's electors are not appointed by the constitutionally designated time, then "the electors may be appointed on a subsequent day in such a manner as the legislature of such state may direct."

Advocates in the Florida case conclude that if there are still court decisions and appeals pending on Dec. 12, when electors must be named, the legislature should appoint electors because it is specifically authorized to do so in the 1887 law, and more generally sanctioned by the Constitution's basic grant of power to state legislatures in selecting electors.

If all legal contests have finished by Dec. 12, the legislature would have no grounds to act. That seems unlikely.

Opponents of the Florida legislature's right to act in any/I> circumstances argue that the proper resolution of these cases comes from interpreting the state laws governing elections, which is exactly what courts are supposed to do. They add that nothing in Article II or in the 1887 takes away the courts authority to resolve this kind of dispute.

But their more flamboyant argument is that intervention by the Florida legislature would court future disaster. Bruce Ackerman, a leading constitutional expert at Yale University, told a special committee of the Florida legislature that if they take action, "it will be setting a precedent for future state legislatures to intervene in every close election. This is a recipe for continuing instability in the process of presidential selection."

This obviously comports with much public sentiment. So much so that the notion of having Florida lawmakers appoint electors strikes most people as loopy.

But there are some who think that political disputes should be settled by political means.

Larry Kramer is a prominent legal scholar at New York University with a special expertise in the role of political parties under the Constitution. Kramer says his current research of the founding era "reveals how much more democratic the founders were than we are." He is not at all surprised that pro-judicial, anti-democratic or anti-legislative predilections dominate this public debate "because democracy has fallen out of favor with liberals and conservatives alike."

Kramer says that in a philosophic sense, "I think it preferable to have the state legislature decide. Parties and politics have infested both branches of government, but we still generally see the legislature as the place to resolve fundamental political controversies, and this is fundamentally a political controversy."

Further, there is a far better way for voters to "appeal" a political decision in this case than a judicial decision - they can vote to throw the bastards out in two years, whoever they are. "We must leave it to politics to the extent possible and count on voters to say what they think in 2002 and 2004," Kramer said. "That's really the only way to think about resolving a irresolvable problem."