//  10/28/20  //  In-Depth Analysis

In this series, we are examining very close presidential elections in three states at three different times to understand how a very close election should be decided. In the first post, we looked at what happened in Pennsylvania in 1796, which we concluded should not serve as a model for the modern era. In the second, we revisited the 1960 Kennedy-Nixon election in Hawaii, which provides a model for how a very close election should be determined. In this final post, we turn to the election in Florida in 2000.

In prior posts in this series, we have discussed the close elections for presidential electors in Pennsylvania in 1796 and Hawaii in 1960. In the end, nothing turned on their outcomes—the person who ascended to the presidency would not have changed if the results in those two states had. 

But Florida’s slate of twenty-five electors in 2000 was for the whole megillah. That’s why it’s so frustrating that the courts—and, perhaps, the parties too—misunderstood the Electoral Count Act and failed to learn from Hawaii’s experience in 1960. If courts, politicians, and election officials make the same mistake this year, we risk ending this hotly-contested election without properly counting all the valid votes. 

Let’s set the scene of the 2000 election. Pollsters were predicting a close race between George W. Bush and Vice President Al Gore—the polling average had Bush ahead a few percentage points nationally, but within the margin of error. The prediction of a close election turned out to be true: when voters woke up on November 8, 2000, there was no call. The morning edition of the New York Times had it Bush 256, Gore 238, with four uncalled states. Washington, Wisconsin, and Oregon, with 29 combined electoral votes, were still too close to call officially, but they were widely expected to (and did) go for Gore. But that gave Gore only 267 electoral votes, not the 270 he needed. Florida’s 25 electoral votes would be determinative. 

A day later, Bush “won” the election in Florida by a scant 1,734 votes, but all knew that number would change; an immediate recount was triggered under Florida law. Four days later, on November 11, an unofficial tally during the ongoing recount had Bush ahead by only 327 votes, while Bush and his advisers told Gore “not to stand in [his] way” by contesting the result. A day later, the tables had turned, in at least one respect, as the Bush camp started what would be a barrage of litigation. Palm Beach County announced it would start a full manual recount of all ballots cast in the count, but Bush sued to stop it.

Time was short. Battles statewide and in particular counties over recounts continued, but there was ostensibly a state-imposed deadline of Tuesday November 14 to certify results. The Florida Supreme Court ultimately extended that to Thanksgiving Sunday, November 26, and, on that date, Governor Jeb Bush—the winning candidate’s brother—certified the Republican slate of electors as having won the election by 537 votes. A Republican slate had officially been appointed. 

The Gore camp did not give up. They contested the election under Florida’s election contest statutes, and, on Friday, December 8, 2000, the Florida Supreme Court ruled that the certification was incomplete. In particular, the court held that Gore was entitled to a manual recount of the so-called “undervote” in Miami-Dade County—that is, a manual count of the ballots for which no vote for President had been recorded. The court also ordered a recount of all such ballots statewide that had not been recounted that way, so that all counties were operating under the same standard.

But an important deadline loomed—or so everyone thought. The federal safe harbor deadline that year was December 12, just four days after the Florida Supreme Court’s ruling. The safe harbor, as we mentioned previously in the context of the 1960 Hawaii recount, is a provision of federal law saying that 1) if an election contest is held and 2) it is concluded by six days before electors vote in the electoral college, then 3) Congress should treat those votes as valid, unless both Houses of Congress agree the votes were not “regularly given.” 

Everyone seemed to be acting as if this was a hard deadline. The dissent in the Florida Supreme Court noted that the state court earlier had appeared to construe December 12 as some sort of hard deadline, “and all of the parties agree that election controversies and contests must be finally and conclusively determined by December 12, 2000.” The Bush camp pushed this line hard, and in their brief to the U.S. Supreme Court objected to the recount ordered on December 8 because it was “only four days before the December 12 deadline imposed by [3 U.S.C.] § 5.” The Palm Beach County Canvassing Board itself had told the U.S. Supreme Court that December was the “date for determining Florida’s electors.” 

The Gore camp resisted the idea that December 12 was a hard deadline, but with the benefit of hindsight, the team could have done more to explain how the dispute could still have been resolved fairly even if the recount was not complete by December 12. The Gore brief noted that the “statute’s only purpose and effect is to provide each State with a way to guarantee that its electors will not be subject to challenge in Congress.” It failed to explain how a recount practically would work if a state counted votes past December 12. Gore never proposed that Florida keep counting, have two slates vote if there was no official result by the day the electors were to vote, and then sort things out later, as happened in Hawaii in 1960.* Indeed, Hawaii 1960 was not discussed in any Supreme Court brief, as far as we can tell. Nor did the Gore camp bring to the Supreme Court’s attention 3 U.S.C. § 6, which requires the governor to send to Congress the final result of any election even if the contest was not decided until after the safe harbor day

Ultimately, the Supreme Court basically agreed with the Bush camp’s view that the safe harbor day was a hard deadline—or, at least, that the Florida Supreme Court had treated it as a deadline under state law, and the U.S. Supreme Court would enforce that and stop all vote-counting. The Supreme Court of Florida had said that “the legislature intended the State’s electors to participate fully in the federal electoral process, as provided in” the safe harbor provision of 3 U. S. C. § 5. But the Supreme Court’s decision was not issued until December 12, the very date of the safe harbor. Thus, “with that date . . . upon us, and “no recount procedure in place under the State Supreme Court’s order that comports with minimal constitutional standards,” it was pencils down. No more votes could be counted. Gore conceded the next day. 

In fact, federal law provided no reason to stop so soon. The presidential electors wouldn’t vote for another six days, and Congress wouldn’t count votes for another twenty-five.  As Michael Stern of the Point of Order blog points out, if the recount had continued, we would have had a redux of Hawaii in 2000 (assuming the count was not finished six days later). If that happened and Bush won, then there would be no issue at all. If Gore had won, though, then it’s true that his slate would not have had safe harbor status. But he would have been the winner of the legal contest, as determined by the Supreme Court. It’s very likely his electoral votes would have been counted. 

Stern objects to the result of that counterfactual, and it’s worth considering why he thinks things would not have gone as smoothly as they did with respect to Hawaii in 1960. He says: 

Given the numerous factual and legal controversies surrounding the recount and the Florida judicial process, it is difficult to imagine the Bush camp would have accepted a Gore victory based solely on the authority of the Florida Supreme Court. It is likewise highly doubtful that Florida Governor Bush would have certified the outcome (alternatively, he might have done so with such reservations as to deprive the certification of its utility). Furthermore, any attempt to have Florida’s electoral votes counted for Gore under these circumstances would have faced fierce resistance in Congress, specifically from the House of Representatives led by Republican Speaker Denny Hastert and Majority Leader Tom DeLay.

This is a serious objection. We acknowledge that fierce resistance would have been possible, but we don’t agree that it was likely to occur. The Electoral Count Act places the burden on states to conduct election contests and tell Congress the results. Indeed, as mentioned, it requires state governors to tell Congress immediately of the outcome of these judicial contests. If Al Gore would have been certified as the winner by the Florida Supreme Court, Jeb Bush would have had an obligation to tell Congress, and the Electoral Count Act puts a thumb on the scale of counting the electoral votes of the slate that state law determined were properly appointed by the votes of the people. 

Given that, here is what we think would have happened when the two houses of Congress assembled concurrently on January 6, 2001 with Vice President Gore presiding. Assuming a replay of the Hawaii 1960 scenario, when the counting reached Florida, Vice President Gore would have first opened the initial package of electoral votes with documents declaring the appointment of the Bush slate of electors and their votes cast for Bush and Cheney. Then he would have opened the late arriving package from Florida declaring just the opposite: appointment of a Democratic slate and their votes for Gore and Lieberman. Both packages would have contained a Certificate of Ascertainment signed by Governor Jeb Bush.

But the Gore votes would also have had a key document: a certification under 3 U.S.C. § 6 that the courts had determined the Gore slate to have been properly appointed. In reality, Jeb Bush did attach such a certificate to the Bush slate of electors, to officially notify Congress that, in Bush v. Gore, the Supreme Court determined Bush’s electors were properly appointed. 

When Vice President Nixon presided over the counting of the certificates from the 1960 election and received certificates from competing slates, he said he was “convinced” that the Kennedy “certificate . . . properly and legally portrays the facts with respect to the electors chosen,” and he suggested that the Kennedy slate be counted without objection. That is what happened. Vice President Gore could have tried to follow Richard Nixon’s example in our hypothetical scenario, but it probably wouldn’t have worked. All it takes is an objection from a single member in each chamber to force the houses to separate and vote on which set of electoral votes to accept are whether to accept any electoral votes at all from Florida. 

We suspect that at least one Republican in each chamber would have objected. That would have caused the two chambers to separate and decide which set of electoral votes to accept using rules set out in 3 U.S.C. § 15 that have never been tested. We believe that the clear cut choice would have been the Gore slate, because they would have been “cast by lawful electors appointed in accordance with the laws of the State.” 

If the Republicans wanted to contest this and vote for the Bush slate, they would have been at a serious disadvantage. It would have been undisputed that Gore won the nationwide popular vote. And Gore would have won the recount according to Florida’s own courts. The Republicans’ argument could only be that the recounted votes should never have been counted—but why not? Shouldn’t all valid votes be counted? The public pressure at that point would have been overwhelming to accept Gore as the President, just as it was when the U.S. Supreme Court essentially declared Bush the winner. If the Houses met to consider objections and agreed on the Gore slate, those votes would have been accepted.

That said, reasonable minds could disagree on the what-if, and it’s possible to play out a constitutional hardball scenario with Members of Congress putting party loyalty ahead of the best reading of the law. This could have been calamitous.

At the time, Republicans held a ten seat advantage in the House, and the Senate was evenly divided between Democrats and Republicans. As Vice President, Al Gore himself would break any 50-50 tie. If they voted purely along partisan lines, we don’t quite know what would have happened. Normally if both Houses do not agree, the votes counted are supposed to be the slate certified by the governor, but it’s possible that neither slate would have been accepted since both sets of electoral votes would have been certified by the Governor, albeit at different times. Perhaps Florida’s twenty-five electors should not have been added into the denominator needed to determine whether anyone had received a number of electoral votes constituting “a majority of the whole number of electors appointed.” That would have made the count Gore 267, Bush 246, electors appointed 514, giving Al Gore a majority. But if it came down to purely partisan political math, Al Gore may have been forced to cast the deciding vote whether to give himself the presidency—and it’s unclear whether he could have, or would have, done that. 

The bottom-line is this. In a world controlled by anything resembling good faith, where our political actors are attentive to the results of the election as determined by processes run under the rule of law, the “safe harbor day” is not some kind of strict deadline, when all votes must stop being counted. An election can be resolved fairly and under law even if a contest goes past that date. So, if there is a very close election this year, we can all hope that whatever state court conducts the election contest doesn’t fall for that trap again. All votes should be counted, and then Congress should count the electoral votes of whatever slate was truly appointed by the people.

Let's hope we don't have a redux of Florida in 2000. But if we do, it looks like the DoubleTree Tallahassee has availability on December 14, the day the electors vote. Florida law says only that the electors have to be in Tallahassee, and that hotel’s only a block from the Capitol, so it should work just fine in a pinch as a place to cast electoral votes. And just remember: if that happens, it's okay. It's not a glitch. It may well be the best through.

* As Michael Stern of Point of Order blog points out, Congresswoman Patsy Mink drew the history to Congress’s attention in a “Dear Colleague” letter on December 11. 

Versus Trump: Going to Church In Times of COVID

12/7/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Versus Trump: Legal Update + The GSA Travesty

11/17/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the status of Trump's legal challenges to the election (going nowhere) and the Trump Administration's dangerous and illegal refusal to designate Biden as the President-elect and therefore give his team resources for a smooth transition. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Trump's Lawyers Should Be Sanctioned

11/11/20  //  Commentary

Lawyers who bring cases without evidence solely to harass or delay should be sanctioned. It's what Justice Scalia would have wanted.

Jason Harrow

Gerstein Harrow LLP