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No Regrets for Florida Legislature
Dec. 1, 2000

By James L. Hirsen, J.D., Ph.D.
contributor to

Now that the Florida Legislature is gearing up to appoint its own slate of presidential electors, a campaign to poison the constitutional waters and cast doubt about the authenticity of its endeavor is under way.

The Gore-Lieberman recount battalions and their cohorts in the media are attempting to taint public perception of the Florida Legislature's activities by using a slew of epithets. The task has been characterized as a "reckless strategy," a "misguided plan," "meddlesome," "extremely partisan" and, most insidiously, the "rigging of the Electoral College."

What seems to be lost in the description of the Florida Legislature's proceedings is the fact that the legislature is actually fulfilling a constitutional mandate to protect the efficacy of the state's electoral system.

In the event that the spin machine fails to intimidate the Florida Legislature, Al Gore's brigades of sleep-deprived lawyers have already filed briefs with the United States Supreme Court. These moving papers argue that the Florida Legislature has no legal warrant to appoint a slate of presidential electors at all.

The irony is that Gore's attorneys are enlisting the aid of the same federal statute that was brought up by the Bush campaign, Title 3, Section 5, which prohibits the changing of balloting rules after an election. If Gore's lawyers are successful in their arguments, they will inadvertently wind up supporting the Bush position that seeks to overrule the Florida State Supreme Court.

In its appointment of electors, the Florida Legislature is ensuring that the original legislative design is properly executed. It is providing a much-needed fallback plan to avoid the indefinite submersion of election results into legal quicksand.

The pertinent federal law states that the Florida Legislature is empowered to appoint electors if the state has failed to do so. However, the electors have been certified, and now Florida's Certificate of Ascertainment, which lists the 25 Republican electors, has been duly signed by the governor. It has been sent and received by the National Archives and is proudly on display at the Web site ( Under federal law, these 25 electors, who hold a Certificate of Ascertainment signed by the governor, will be the authentic slate unless rejected by both houses of Congress.

And so it appears that the Gore-Lieberman recount regiment, as well as the hefty segment of the media that continues a one-sided approach to journalism, has focused on the wrong legislature. The genuine arbiter of this election fracas is the United States House of Representatives. As long as that body maintains its will, and a plurality to accept the electors set forth in the Certificate of Ascertainment, George W. Bush will be inaugurated on Jan. 20, 2001.

We are hearing a great deal about Al Gore's "contest" in the Florida state courts. But the simple fact of the matter is, no matter what a Florida court attempts to do - enjoin the electors from voting, enjoin the Florida Legislature, order the governor to revoke his signature on the Certificate of Ascertainment, invent a slate of electors, or devise any number of creative alternatives - the court will still have no statute, no precedent and no controlling legal authority to accomplish any of these tasks.

It will be with sorrow if the American people should one day recall this episode in history, the frenetic appearances of Gore and Lieberman, the army of attorneys sullying the election process and the hyperactive media elevating "mischief" to an art form, as a tale told by idiots, "full of sound and fury, signifying nothing."

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Copyright © 2000
James L. Hirsen, J.D., Ph.D.
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