According to the US Suprement Court, even if Florida did fix the equal protection problem by implementing a uniform ballot review standard, it wouldn’t matter because there is no constitutional way to allow the deadline for electors to be chosen and/or to vote to be extended.
“In discussing so-called deadlines, some experts cite the case of Hawaii in 1960, when the state did not certify electors for John F. Kennedy until Dec. 28. The governor initially certified Richard Nixon as the winner, but a recount showed the state’s three electoral votes–not sufficient to affect the outcome–belonged to Kennedy. Congress accepted the Kennedy slate unanimously since Nixon had conceded.”
Congress has the discretion to accept any slate of electors. Why not keep counting and let Congress decide? Why are the 5 Supremes so confident that a late count is unconstitutional?
The short answer is that the majority opinion did not say that choosing electors after Dec. 12 was unconstitutional. I’m posting a full analysis of the decision in another thread (probably the one started by RTFirefly). But what they said is that the Florida Supreme Court in the case Palm Beach County Canvassing Board v. Harris, issued 11/21/00, asserted that the scheme for choosing electors was intended to allow them to participate fully in the electoral process. The majority then concluded this meant that the electors had to be able to take advantage of the ‘safe harbor’ provision of 3 U.S.C. §5 (which prevents Congress from challenging the validity of electors selected no later than Dec. 12 this year). The majority went on to conclude that the Florida Supreme Court was unable to meet this ‘deadline’ with the proposed remedy of allowing the lower court to set constitutionally permissible vote-counting guidelines, so the whole judgment of the Florida Supreme Court was reversed, specifically as to the fact it allows a ‘recount’ of the votes in the Nov. 7 election.
Does this make sense? No, and I’ll explain why elsewhere. I will simply for this thread note that the conclusion is based on some pretty sloppy reasoning, especially the attempt to make it seem like the Florida Supreme Court has declared that the Dec. 12 date was vital.
But even if the scheme devised by the Florida Legislature (the statutes governing Florida elections) was intended to meet the provisions of 3 U.S.C. §5 (as any good election law should intend), why would not meeting the deadline make the action unconstitutional?
These are “safe harbor” dates, not all-or-nothing deadlines as the 1960 Hawaii precendent establishes. Let Congress vote on accepting an electoral slate if there is any question about its validity.
If Dec. 12th were some kind of “drop dead date” as the court implied, 21 states would be in deep trouble today.
According to AP 21 states missed yesterdays deadline to submit their slate of electors, and the only real casualty seems to be the Gore candidacy. I think perhaps the court is trying to put something over on us ?
The Supreme Court did not rule that the Dec. 12 deadline was constitutionally mandated. The Hawaii case is inapposite; the Hawaiian electors were not selected through an unconstitutional process.
Squink, the Dec. 12 date is not the date by which certification of a slate must reach the federal government.
3 U.S.C. §6 does require that copies of the certificate of ascertainment be delivered to the selected electors no later than the date that they are scheduled to vote. This year, that is Dec. 18.