November 11, 2000
As the uncertainty continues in Florida, baseball wildcard fans are enjoying playing “What If.” Before the victor can be crowned, several issues must be determined. There are actually several electoral permutations. Here’s how – in a land where the Rule of Law determines all – the various Constitutional and Florida laws play out:
The Florida recount (minus some of the absentee ballots) is now complete: the vote total is 2,910,198 - 2,909,871, according to an unofficial tally by the Associated Press. That gives Bush a margin of advantage of a mere 327 votes cast in the State of Florida.
But Florida law gives a candidate the right to request a “recount by hand.” If the Gore camp pursues that option – and there is no reason to think they will not – look for them to seek a recount in four heavily Democratic counties. Whether the Bush camp makes similar requests is a strategic decision for them.
Each local election board has discretion whether to grant such a request. One would expect the “by hand request” to be granted, given the tightness of the race and the intense national and media scrutiny. That recount must be completed by Tuesday, November 14.
The closeness of the count – at least by AP’s numbers – throws this open to the absentee vote. In Florida, over 13,000 such ballots were requested; Since around 40% of the requested absentee ballots actually get mailed back at all, assume then about 5,000 or so will be counted. Most of these have probably already been received. But those ballots post-marked by Election Day (November 7), and received no later than 10 days after Election Day are still valid. That prevents an official declaration from Florida until the – Friday, November 17th.
Are you with me so far? Now consider the following: Florida state election officials must certify the State's results by that same date of November 17th. “A very close finish could also result in a run-off election or legal action to decide the winner,” according to the
National Archives and Records Administration FAQ on Presidential Elections.
Under Federal law (3 U.S.C. section 5), Florida State law then determine the selection of its Electors. “If States have laws to determine controversies or contests as to the selection of Electors, those determinations must be completed six days prior to the day the Electors meet.” That date? “The first Monday after the second Wednesday in December,” which this year, falls on
December 18.
Florida must, therefore, have these issues resolved by December 12th.
If Florida can determine who won the vote, and assuming the Palm Beach ballot brouhaha remains a non-issue, will their Electors’ be votes to the Electoral College. Incidentally, there is no Constitutional provision or Federal law requiring Electors to vote according to the popular vote in their States. Only 24 States (plus the District of Columbia) have laws requiring Electors to cast their votes according to the popular vote of their state. Electors in the other 26 states are free to vote their conscience. But since they are appointed by their respective parties in their states, and pledge to support them, they invariably follow the popular vote. Throughout our history as a nation, more than 99 percent of electors have voted that way.
Now here’s where things can get really intense: Suppose the Florida mess is not resolved by the December 12 deadline. The election board is tied up, there’s litigation, what ever. That then raises the following question: What happens if the Electoral College meets without Florida deciding on its electors?
The election does not, as some have suggested, go to a House vote. That happens only when there is a tie (i.e. 269 – 269 out of a possible 538) of all Electoral College votes.
But there is nothing magic about the 270 votes everyone focuses on; It merely represents an electoral college majority IF EVERY STATE CASTS its electoral votes. Article II, Section 1 of the Constitution, states that a simple majority of the electoral votes actually CAST determines the winner:
"The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed."
(You can see the full constitutional text here).
If Florida somehow does not certify its results, or does not appoint Electors by December 12, then the following happens: Gore wins the election, as he will garner the majority of the electoral votes cast: 260 – 246. This presumes the electors vote as expected.
Oregon's 7 electoral votes – still too close to call – will not tip the election; the closest they could make it would be 260 - 253, still an electoral majority for Gore.
Barry Ritholtz, an attorney, is the Investment Strategist at Auerbach, Pollak & Richardson." Under no circumstances does the information in this column represent a recommendation to buy or sell stocks.
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Copyright © 2001 Barry L. Ritholtz, All Rights Reserved worldwide. May not be copied, stored or redistributed without prior, written permission.
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