Well, let's go through this statute bit by bit.
If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors . .
Said appointment takes place on "on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President. 3 USC §1. Thus §5 addresses the appointment of electors in each state on election day and not the meeting date at which the electors cast their ballot for President in December. See 3 USC §7.
So this part of the statute addresses LAWS ENACTED prior to the date of the state popular election.
. . . final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, . . .
. . . shall be conclusive
And this part of the statute addresses appointment pursuant to any CONTROVERSIES OR CONTESTS, either judicial or otherwise (i.e a recount), stating that such determination must be made six days prior to the meeting date of electors pursuant to 3 USC §7. The meeting date is Monday, December 18, meaning determination of all appointments following CONTROVERSY OR CONTEST must be made by December 12 in order to be judged CONCLUSIVE. . .
. . and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.
. . . for the purpose of counting of the electoral votes cast by each state.
Obviously, the operative language here is the first clause that provides for adherence to "laws enacted prior to the [election]" as necessary for the conclusive appointment of electors no later than six days prior to their meeting on December 18 in the instant case.
Well, the way I read this statute is to conclude that the conduct of the Florida Supreme Court, to rewrite the law following the election, was to remove the conclusive nature of any appointment of said electors on December 12. Even if the Florida Supreme Court ruling is upheld, it is certainly within the power of the Florida legislature to appoint its own electors since the electors appointed following an election whereby the laws governing the election were changed ex post facto, said appointment of such electors is NOT CONCLUSIVE as a matter of law.
Way to go, Florida Supreme Court. What the Court has done, if its ruling is upheld and certification based upon results as of November 27, rather than November 17 as required under Florida law, is to cast a cloud over the entire electoral appointment process in Florida arising out of the State's popular election. As a consequence, it is certainly within the purview of the Florida State Legislature to trump any appointment arising from the State's popular election as such appointment is inconclusive as a matter of Federal law. As I stated here earlier, the Florida Supreme Court ruling accomplished little since its ruling leads to an inevitable controversy requiring further judicial intervention and/or higher court review. I don't believe the Court accomplished what it intended to accomplish. But that's JMO.
If you think about it, because (1) the Florida Supreme Court chose to rewrite the law; (2) the US Supreme Court has decided to (a) grant cert and (b) hear oral arguments on December 1, it will unlikely rule on the controversy no earlier than December 4 or 5, making it extremely unlikely for any contest filed by the Democrats or Republicans, whichever the case, following certification this Monday morning, to have really have any chance of reaching resolution in time for a valid appointment of electors on December 12. |
