[Congressional Record Volume 146, Number 155 (Friday, December 15, 2000)]
[Extensions of Remarks]
[Pages E2211-E2212]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                  FLORIDA LEGISLATURE HAS GONE TO FAR

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                         HON. JOHN CONYERS, JR.

                              of michigan

                    in the house of representatives

                       Friday, December 15, 2000

  Mr. CONYERS. Mr. Speaker, today I commend Bruce Ackerman, a professor 
at Yale Law School. Mr. Ackerman, in his December 12, 2000 New York 
Times editorial, points out that the Florida legislature, if allowed to 
name electors on its own authority would establish a ``devastating 
precedent.'' His argument is very straight forward and clear: ``it is 
absurd to believe that the United States Constitution would allow one 
state legislature to usurp a national election.'' Article II of the 
Constitution grants Congress power to set the day on which electors are 
selected. This is why in 1845 Congress established a level playing 
field among the states by requiring them to hold elections on the same 
day. Not since 1845, Mr. Ackerman points out, has a state legislature 
``tried the trick that Florida's legislature is now attempting-
intervening to swing the election to its favored candidate.'' I 
strongly agree with Mr. Ackerman's argument that the Florida State 
legislature's attempt to choose it's own electors is illegal under 
Article II of U.S. Constitution. I submit the following article into 
the Congressional Record.

       [From the New York Times OP-ED Tuesday, December 12, 2000]

                            As Florida Goes

                          (By Bruce Ackerman)

       While the Supreme Court may ultimately determine the fate 
     of this election, Florida's Legislature is determining the 
     destiny of future presidential contests.
       The constitutional issues raised by the Legislature's 
     impending action to name a slate of presidential electors for 
     Gov. George W. Bush are far more important than whether Mr. 
     Bush or Vice President Al Gore gets to the White House. If 
     the Legislature is allowed to name electors on its own 
     authority, it will establish a devastating precedent.
       In the next close presidential election, what is to prevent 
     party leaders in a swing state from deciding the election 
     once the Florida strategy has been legitimized? The dominant 
     party in such a state could simply string out a final tally 
     until the end and then rush into special legislative session 
     to vote in a partisan slate of electors at the finish line. 
     If one state legislature succumbs to this temptation, another 
     legislature--controlled by the opposing party--may well 
     follow suit, creating a partisan battle far worse than what 
     we have already witnessed in Florida.
       The Florida Legislature may believe it has the power to 
     name the state's electors. But it is absurd to believe that 
     the United States Constitution would allow one state 
     legislature to usurp a national election. An examination of 
     two provisions in Article II of the Constitution shows why.
       One provision grants state legislatures power over the 
     manner in which electors are chosen. A second grants Congress 
     power to set the day on which these electors are selected. 
     The first provision appears to give the Florida Legislature 
     the right to name its own slate. Many legislatures exercised 
     this power during the early decades of the Republic. And as 
     far as the Constitution is concerned, there would be no legal 
     obstacle if Florida's Legislature decided that in future 
     elections it would deprive its citizens of the direct right 
     to vote on Presidential electors.
       But the Florida Legislature is perfectly happy to have its 
     citizens vote for President. It simply wants to preempt the 
     Florida Supreme Court's effort to figure out who won the 
     election last month. And in trying to act retroactively, the 
     legislature violates the second constitutional provision, 
     which grants Congress power to set a uniform national day for 
     choosing electors.
       Acting under this power in 1845, Congress established a 
     level playing field among the

[[Page E2212]]

     states by requiring them to hold elections on the same day--
     which is why we all go to the polls on the first Tuesday 
     after the first Monday in November. Before 1845, states 
     competed with one another for influence by setting their 
     election dates as late as possible, thereby swinging close 
     elections by voting last. But since then, nobody has tried 
     the trick that Florida's Legislature is now attempting--
     intervening to swing the election to its favored candidate.
       This effort is illegal under the statute established by 
     Congress in 1845. Congress has allowed one narrow exception 
     to its insistence on a uniform election day: It allows a 
     state legislature to step in only when the state has failed 
     to make a choice of its electors.
       That is not the case in Florida. The state made a choice 
     when Gov. Jeb Bush signed a formal notification that the 
     state's 25 votes go to a slate of Republican electors. Since 
     Florida has not failed to choose, its legislature cannot, 
     under federal law, intervene further.
       Even if the Florida courts ultimately find that Mr. Gore 
     wins the state's electoral votes, Florida will not have 
     ``failed to choose.'' They will simply have determined that 
     the voters chose him rather than Mr. Bush.
       Florida's legislative leaders may want to end the election 
     chaos by fiat. But the vote that occurred on Nov. 7 was 
     properly cast by Floridians on the same day their fellow 
     Americans cast their ballots. If Florida's Legislature is 
     allowed to overrule that vote, other states may ponder the 
     same power play four years from now.

     

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