Next Electoral Deadline Clearly Specified; Untested in Courts
Wednesday, December 6, 2000
By Will Lester
WASHINGTON — Al Gore's uphill bid for the presidency is running headlong toward an Electoral College deadline for states to certify electors, but the law is untested in court and some question whether that deadline will stand.
Federal law specifies a state's electors should be certified by Dec. 12 if that state's choices are to be "deemed conclusive." Experts on the Electoral College admit they don't know exactly what that particular language means, but they think meeting the deadline would make it tougher for Congress not to accept state electors as submitted.
Gore staffers and some analysts of the college believe that Dec. 12 date may have some "wiggle room" and give Gore some leeway to finish the manual recounts he still seeks in Florida's Miami-Dade and Palm Beach counties — if he ultimately wins that right. Others see the date as a firm deadline to settle legal challenges and certify a slate of electors.
"The (Dec. 12) deadline has power, but it's unclear what happens if you don't meet it," said Trevor Potter, a former chairman of the Federal Election Commission.
More firm is the Dec. 18 date specified in federal law for the scheduled meeting of electors in state capitals across the country to cast their votes.
Gov. Jeb Bush already sent a slate of Republican electors to the national Archive Nov. 27, a day after Secretary of State Katherine Harris certified the Florida win for Bush.
So the Dec. 12 deadline becomes an issue only if the Florida election is still tied up in the courts by then — or if Gore ends up winning the vote count.
edit in:(which was Gore's hope)
"I see some wiggle room in the December 12th date, but I don't see any wiggle room in the December 18th date," said Robert Hardaway, a University of Denver law professor and author of "The Electoral College and the Constitution."
Most of the language on the Electoral College in the Constitution and in federal law is untested in court.
The rules about Dec. 18 requiring all electors to vote are not connected to Dec. 12, said Michael J. Glennon, a law professor at the University of California-Davis who has written extensively on the Electoral College.
"All that December 12th does is confer certain benefits to the state if it acts in time," said Glennon, noting the reference in federal law to the state's choices if certified in time "shall be conclusive."
The law does not outline penalties for missing the Dec. 12 deadline, he said.
"Is Congress not going to count Florida's electors if they are appointed December 14th?" Glennon said. "I don't think so."
At various points in the post-election struggle, the Gore campaign saw the Dec. 12 deadline as a possible ally because the Republican Congress would be more bound to accept a slate of Gore electors if election results were reversed and his electors were certified by that date.
But as the clock ticks down on Gore, Democrats have started viewing Dec. 12 as more of an obstacle.
The Florida Legislature is considering whether to convene a special session to choose a slate of electors it could send to Washington if the matter is still tied up in court on Dec. 12. Federal law allows state lawmakers to take action if that deadline can't be met.
The schedule for choosing electors who will determine the next president was set out in a federal law passed a decade after the tumultuous 1876 election when several states had disputes over who their electors would be.
The law says that electors are to meet in each state "on the first Monday after the second Wednesday in December," which is Dec. 18 this year. It also says that if a state has made a final determination of any controversy or contest at least six days before the electors meet (Dec. 12 this year) that determination "shall be conclusive."
Another important date is when Congress meets in joint session to count the electoral votes. That date is planned for Jan. 5. |
