John Clark argued that "The constitution says that the new president will be
the man who receives a majority of electors OFFICIALLY APPOINTED by December
18. . . . All Gore has to do is drag things out with lawsuits in the courts
until December 18 and then nobody would get Florida's 25 vote and Gore would
be president." For reasons I'll explain, I don't think John is quite right.
I do think he raises an interesting question, though.
Amendment. XII specifies that the president shall be *not* the candidate
elected by a majority of *all possible* electoral votes but rather merely the
candidate who gets "the greatest number of votes for President, if such
number be a majority of the whole number of Electors appointed . . . ." Thus
the question: Could Gore's legal machinations delay the appointment of
Florida's electors past some crucial date so as to allow him to prevail with
the majority of the remaining delegates? The Constitution does not specify a
particular date on which electors shall be appointed. Rather, art. II, s.1,
cl. 3 provides that "Congress may determine the Time of chusing the Electors,
and the Day on which they shall give their votes; which Day shall be the same
throughout the United States."
(An aside regarding the unconstitutionality of the entire election: That the
second "Day" in art. II, s. 1, cl. 3 speaks in the singular strongly implies
that delegates must vote on the same day that the voters choose them. To the
contrary, however, under current practice voters choose delegates on the
first Tuesday following the first Monday in November, 3 USCS s. 1 (2000), and
delegates cast their votes on the first Monday after the second Wednesday in
the December following the election, id. s. 3. For the sake of the current
discussion, however, let us charitably assume that the current practice
passes constitutional muster. We've got smaller fish to fry.)
The question then turns on this: When is an elector "appointed" for the
purposes of Amendment XII? Note that art. I, s. 1, cl. 3 speaks solely of
"chusing" electors. If that equates to appointment, then it might well prove
true that a state could by dint of an unresolved vote count fail to appoint
electors by the December deadline. In other words, Gore could by delaying
the Florida outcome win on the votes of the remaining delegates.
But if "appointment" means "selection through some sort of state-level
process--a reasonable interpretation, given that delegates are state
officials--then a delay in resolving a state's vote would not leave delegates
from other state's to decide the vote. What would happen on this latter
interpretation were Florida's delegates unable or unwilling to cast their
votes by the specified deadline? The passage from Article XII quoted above
continues thus: "and if no person have such a majority [of all appointed
electors], then . . ." the House shall choose the President. In that event,
no doubt, Gore would lose.
I'll leave you with this last uncertainty: the just-cited provision clearly
aims at resolving the problems raised by a vote split between three or more
presidential candidates none of which has won more than 50% of the vote. It
does not at all seem designed to handle the problem I've described, that
raised when less than a majority of electors split their votes between two
candidates. A constitutional crisis? Well, a conundrum, at least.
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