Wednesday, August 09, 2006

In A Parallel Universe....

Imagine it's December 2000 all over again. The Florida Supreme Court just decided that the recount can continue. Now imagine the U.S. Supreme Court refused to grant certiorari (meaning they don't take the case), and the Florida court's decision stands. What might have happened?

Richard Posner paints (not available online) a picture of what might have happened: The recount continues and Gore wins (Posner actually argues that Gore probably would not have won statistically, but that assumes impartial counters, who don't exist). The Florida Supreme Court authorizes the governor, Jeb Bush, to certify the votes of the electors (who would vote for Gore) are to be submitted to Congress. Bush refuses, as does Florida's legislature under the Electoral Count Act which authorizes the legislature to choose the electors if normal elections procedures fail. The legislature then appoints its own slate of electors. Because the opposing slates are submitted after December 18, which is the cutoff date listed in the Constitution, it's unclear if either slates counts.

Next the ECA requires Congress to meet jointly to count the votes. The two houses do that, and they are later required to certify the votes, but because the House is Republican and the Senate is Democrat by virtue of the 50-50 tie and Gore's tiebreaker until January 20. When the two houses cannot agree the ECA requires the slate certified by the state governor to be authoritative. Bush would likely support his brother's slate, but the state court would hold him in contempt.

The two houses cannot agree which slate to accept, and are unsure what to do if both slates are not accepted. Gore would have more electoral votes, but he would not have a majority. If the Supreme Court stayed out until now, it's likely it would invoke the "political question" doctrine and stay out of this mess too. So Congress is deadlocked.

January 20 comes around and an acting president is appointed. No vice-president has been elected yet, so next in line is the Speaker of the House and the Senate President pro Tempore. Neither would accept because they cannot serve unless they resign their seats and politically that would be a bad move especially for Strom Thurmond, because it would give the Democrats control of the Senate. Next is Madeline Albright, but she can't serve because she's foreign born. Lawrence Summers is next in line as Secretary of the Treasury (guess he wouldn't have been president of Harvard). So Summers, as a weak acting President, controls the country.

The US Constitution provides that the President be able act quickly. As opposed to the legislature or the courts, the President must be on call all the time because a crisis does not take vacations. How effective would our executive branch be with an unelected President Summers and a deadlocked Congress? Imagine if 9/11 happened on January 21. How effective would our response be?

At some point the deadlock would be resolved. But the President would be weak, have no transition, and would come into power after months of partisan bickering. The executive branch would be weak for four years.

In essence Posner argues that the decision was poor but necessary. Pragmatic issues required Supreme Court intervention to stave off the possible crisis. We couldn't have a long transition period without a President because we need a President. Gore v. Bush, in that light, is defensible on pragmatic grounds.


Blogger Charlie Hall said...

'Gore would have more electoral votes, but he would not have a majority'

At that point wouldn't the House of Representatives be required to select the President, and the Senate the Vice-President? I think that would have resulted in a Bush-Lieberman administration. Lieberman would have resigned from the Senate to become V.P., and the Republican governor of Connecticut would have appointed a Republican seatwarmer and the Senate would have been 51-49 Republican.

8/10/2006 8:28 PM  
Blogger Nephtuli said...

You're right but other considerations would have thrown a wrench into the whole proceedings. The 12th Amendment requires, when no one candidate has a majority of the electoral votes counted, the House to decide. But if Florida's votes were not counted, it becomes unclear what should happen. If we don't count the votes, Gore has a majority and wins. If we do but are unsure which slate we are counting, then the House decides and Bush wins (because no one has a majority of the votes counted). How would the Democrats and Republicans decide that dispute? How could they come to a clear resolution?

And in regards to the Senate, it would be 50-50 and Gore could not break the tie because he's not a member of the Senate. So they can't pick a vice president either.

8/13/2006 12:41 PM  
Blogger Noyam said...

I think the argument rests on the assumption that Jeb Bush would steadfastly refuse to certify the electors.

Perhaps initially that would have happened, but it's also possible that an outcry of public opinion, based on the fact that we need a President, would have led him, perhaps urged by his brother, to concede and certify Gore's electors.

8/14/2006 2:16 PM  
Blogger Nephtuli said...

Perhaps initially that would have happened, but it's also possible that an outcry of public opinion, based on the fact that we need a President, would have led him, perhaps urged by his brother, to concede and certify Gore's electors.

Yeah, but public opinion in Florida and elsewhere is as least as likely to have supported being steadfast, because many backed Bush. Moreover, people were upset about Florida's supreme court's decision and might have supported the executive branch telling the judicial branch to "shove it."

8/14/2006 3:15 PM  
Anonymous woodrow said...

The whole argument overlooks one small fact: before January (when the new Senate was sworn in) the Senate was NOT 50-50. It was 55-45 R (the Rs lost a bunch of Senate seats in the 2000 elections).
So why doesn't the lame duck Senate ram Bush through?

Besides, I think the notion that anyone would refuse to be acting President is just silly.

8/21/2006 2:09 PM  
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