Are the Florida Electors Unconstitutional?

The Layman's Guide to the Congressional Challenge of Florida's Electoral Votes

Mark H. Levine
Attorney at Law

Q: So I read that it is now "unofficial" that Gore got the most votes in Florida.

A: The evidence is overwhelming, even though very few US newspapers (mostly in Florida) feel that democracy is important enough to report on who actually won the election. Indeed, the best articles I've seen on Gore's Florida win come from the UK. See, for example,,4273,4109842,00.html

Q: But even though Gore won Florida, I guess it's too late to do anything about it, right?

A: No. There's still time. On Saturday, January 6, Congress must accept Florida's electoral state for the votes to be counted. Recall that in 1961, Hawaii's votes were also submitted in early January, and the were counted.

Q: Yeah, but Gore's already conceded. Congress will never challenge the results.

A: Actually, Gore is REQUIRED BY LAW as President of the Senate (whether he likes it or not) to ask if there are any challenges to any State's electoral votes when he reads each state in alphabetical order. The entire procedure is laid out in detail under Federal Law. (3 USC Sect. 15)

Q: How many members of Congress does it take to make a challenge?

A: Two.

Q: Just two????

A: Yep. Only one Congressman/woman and one Senator.

Q: Then what happens?

A: Each House is required by law to debate the issue for 2 hours, then both sides must vote. If a majority vote to uphold the challenge in each House, Florida's votes aren't counted, and Gore wins by 267 to 246.

Q: I thought Gore needed 270 to win.

A: Nope. The Twelfth Amendment to the US Constitution only requires "a majority of the whole number of Electors appointed." If no Florida Electors are lawfully "appointed," Gore would just need a majority of the remaining 513 Electoral Votes.

Q: Have states ever been left out of the Electoral College before?

A: Yes. In 1864, President Lincoln was re-elected, even though eleven rebel Southern states did not send electoral votes to Washington, DC.

Q: So what is the standard for rejecting Florida's electoral slate?

A: The slate can be rejected if the electors have not been "lawfully certified." (3 USC Sect. 15)

Q: What does that mean?

A: That the electors must be chosen "under and in pursuance of the laws" of Florida. (3 USC 6)

Q: C'mon, lawyer. Get to the point.

A: If electors were not chosen based on Florida law as it existed on Election Day, then Florida's electoral vote can and should be challenged and not counted.

Q: What was Florida law on Election Day?

A: That the counties could use a variety of voting systems and a variety of counting systems, as long as they looked at the "totality of the circumstances" to determine the "intent of the voter."

Q: But the US Supreme Court held that was unconstitutional.

A: Exactly.

Q: Now one thing I never understood: was the count certified by Katherine Harris unconstitutional or was the recount ordered by the Florida Supreme Court unconstitutional?

A: Both were unconstitutional. Indeed, several justices who disagreed with the Florida Supreme Court recount decision conceded that it was more fair than Harris's count, just not fair enough. One thing's for certain though: under neither count were all the counties treated equally, not by a long-shot. Some counties were handcounted (such as 6 Republican counties, giving Bush 400+ votes); some were not (Miami-Dade comes to mind). Even the optical scanning counties did not count their votes in the same manner. If Lake County, for example, had handcounted its optical-scanning equipment using the exact same method that Orange County used (by counting voters who both filled in the Presidential oval and wrote in their Vice-Presidential choice instead of just discarding their ballots), Gore would have gotten an additional 130 votes. See:

Q: So neither the Harris-count nor the Florida Supreme Court count was constitutional.

A: Not according to the US Supreme Court.

Q: Was either count legal under Florida law?

A: The Florida Supreme Court is the final arbiter of Florida law, and they rejected the Harris certification as illegal under Florida law. Although their recount was legal under Florida law, it was declared unconstitutional and prevented by the US Supreme Court, who insisted that Florida's law be changed after Election Day.

Q: I thought if Florida's law was changed after Election Day, it was subject to challenge by Congress.

A: Exactly. So since the US Supreme Court changed Florida Law after Election Day, Federal Law REQUIRES Congress to reject the Florida electoral vote.

Q: So you're saying that Florida's votes have NEVER been counted legally, either under Florida law or under the Constitution.

A: I'm not just saying it. Even the Conservative Scalia Five back me up on it. Florida's entire system was rejected as unconstitutional. Thus, Congress must reject Florida's slate.

Q: Isn't the US Supreme Court the final arbiter here?

A: Not at all.

Q: No???

A: No! Article 3, Chapter 1 of the Federal Code makes clear that Congress makes the final decision on electors and the US Supreme Court has no power to change it. Indeed, following the disputed election of 1876, Congress made explicit in legislative history that these political decisions must be made by the political branches of government as required by the Constitution, and NOT by the Supreme Court that acted so politically in 1876 that Rutherford B. Hayes was called His Fraudulency during his weak, one-term Presidency.

Q: And all Congress has to do is determine whether Florida's electoral votes were "regularly given" under Florida law.

A: Right. You've seen all the news reports: the hanging chads, the butterfly ballots, the Republican modification of improperly-completed absentee ballot requests, the African-Americans turned away at the polls due to Katherine Harris's false "felony list." And these are just the tip of the iceberg. Do you think that even a Republican member of Congress can honestly say that Florida's votes were "regularly given" under the law?

Q: So what can I do?

A: Get on the phones; see the list below. Call your Congressman/woman and your Senators (especially your Democratic Senators) and urge them to do what is required by law: challenge Florida's electoral votes. If you don't have a Democratic Senator, or just have some extra time, please call Ted Kennedy, Paul Wellstone, Barbara Boxer, and Tom Daschle.

Mark H. Levine
Author of The Gore Exception: A Layman's Guide to Bush v. Gore