FOR CONGRESSIONAL CHALLENGE TO PRESIDENTIAL ELECTORS ____________________________________________________________________________________________ counsel for Democrats.com with the assistance of Michael North, member of the Advisory Board of Democrats.com
http://www.mediasense.com/itsnotover/congressbrief/
This document is intended to be of assistance to the United States Congress, in understanding the legal basis for a challenge of the Electors from the State of Florida in the Presidential election of 2000. We have established the following facts: 1. Congress has the power and obligation to determine whether Electors are "regularly chosen" by each State, and to reject slates of Electors not selected in accordance with the laws of their respective States. The precise times, dates, standards, procedures and manner of the determination are set forth by Federal statute, providing a clear roadmap in law for Congress as to how to proceed. 2. The current slate of Electors from Florida being submitted to Congress on January 6, 2000 was not chosen in accordance with Florida state law, as substantiated by decisions of both the Florida Supreme Court and the United States Supreme Court. 3. In addition, the manner of selection of the Florida Electors violated the United States Constitution in important respects, a fact also confirmed by decision of the United States Supreme Court. 4. These Electors may therefore be rejected by majority votes of the House and the Senate. 5. Careful evaluation of these facts is vital to the integrity of the rule of law in the United States, to basic principles of the Constitution and of democracy, and to future generations. We have been careful to document these points, and to avoid discussion of many of the partisan and political opinions and allegations of fact which, while important, are either not germane or not provable, from a legal standpoint. The matters discussed here are sufficient, in and of themselves, to require Congress to consider them carefully, and, after the debates mandated by law, to reject the Florida Electors. We offer this information in full realization of the seriousness of its import, in full respect for the sole independent right of the House and of the Senate to weigh all factors involved and to make their determinations according to the Constitution and Federal law. Our role is that of patriots concerned for the integrity and future of the American vision of democracy, and not as advocates for any candidate. The vitality of the law transcends the particular political fortunes of any man or party.
BEFORE THE HOUSES OF CONGRESS CONCERNING THE REGULARITY OF APPOINTMENT OF ELECTORS FROM THE STATE OF FLORIDA
I. CONGRESS MUST DETERMINE IF A STATE HAS "REGULARLY"
CHOSEN ELECTORS PURSUANT TO STATE LAW AND THE UNITED STATES CONSTITUTION. II. GENERAL CONSTITUTIONAL FRAMEWORK
III. THE ORIGINS OF THE 1887 FEDERAL LAW ON PRESIDENTIAL ELECTIONS:
IV. GENERAL STATUTORY FRAMEWORK OF THE 1887 LAW
V. FLORIDA'S ELECTORS WERE NOT ASCERTAINED AND CONTESTED IN ACCORDANCE WITH FLORIDA LAW.
Gore II, slip. op. at 2, reprinted in Appendix II hereto.
The Florida Supreme Court further held that the United States
the Supreme Court's mandate requiring the future "development
of a specific, uniform standard necessary to ensure equal application
and to secure the fundamental right to vote throughout the State
of Florida should be left to the body we believe best equipped
to study and address it, the Legislature." Gore II, slip.
op. at 3, reprinted in Appendix II hereto. VI. FLORIDA'S ELECTORS WERE NOT CERTIFIED IN ACCORDANCE WITH THE UNITED STATES CONSTITUTION.
VII. LEGAL IMPLICATIONS FOR REJECTION OF FLORIDA'S UNLAWFUL ELECTORAL SLATE; PRECEDENT FOR EXCLUSION OF A STATE FROM THE ELECTORAL PROCESS The Twelfth Amendment to the U.S. Constitution provides that
candidates for President and Vice-President with the greatest
number of votes are elected, "if such number be a majority
of the whole number of Electors appointed." But the number
of Electors appointed does not include those appointed in violation
of law. As 3 U.S.C. § 6 makes clear, appointments are only
valid if done pursuant to State Law and the U.S. Constitution.
If a state's electoral slate is not "lawfully certified,"
no electors are lawfully appointed, and any votes cast by them
may be rejected by Congress. 3 U.S.C. § 15. If Congress
rejects the Florida electoral slate as not certified according
to law, the election of the President and Vice-President would
be determined by whomever receives a majority of the 513 appointed
electors lawfully certified and appointed. VIII. PROCEDURE FOR REJECTING UNLAWFUL ELECTORAL VOTES A. Place and Time
Respectfully submitted, MARK H. LEVINE
(1877), in U.S. history, commission created by Congress to resolve the disputed presidential election of 1876 between Republican Rutherford B. Hayes and Democrat Samuel J. Tilden. For the first time since before the Civil War the Democrats had polled a majority of the popular vote, and preliminary returns showed Tilden with 184 electoral votes of the 185 needed to win, while Hayes had 165. Three states were in doubt: Florida, Louisiana, and South Carolina, with 19 electoral votes among them. The status of one of Oregon's three electors--that had already been given to Tilden--was also in question. Hayes and most of his associates were ready to concede when a New Hampshire Republican leader, William E. Chandler, observed that if Hayes were awarded every one of the doubtful votes, he would defeat Tilden 185-184. Both parties claimed victory in all three Southern states and sent teams of observers and lawyers into all three in hopes of influencing the official canvass. The responsibility for resolving the conflicting claims rested with Congress--which was more evenly divided between the parties than it had been in decades. The U.S. Constitution provided that each state send its electoral certificate to the president of the Senate, who "shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted." But it shed no light on whether Congress might, in a disputed election, go behind a state's certificate and review the acts of its certifying officials or even if it might examine the choice of electors. If it had such powers, might it delegate them to a commission? The impasse continued on December 6, the appointed date for electors to meet in the states. When Congress convened the next day there were rival reports from the doubtful states. For more than six weeks maneuvering and acrimony prevailed in Congress and out, punctuated by threats of civil war. Finally, Congress created an Electoral Commission (Jan. 29, 1877) to pass on the contests. The Commission was given "the same powers, if any," possessed by Congress in the matter, and its decisions were to be final unless rejected by both houses. The Commission was to have five members from the House of Representatives, five from the Senate, and four members from the Supreme Court. Congressional and court contingents were divided evenly between Republicans and Democrats, and the four associate justices were to name a fifth, tacitly but universally understood to be the noted independent from Illinois, David Davis. At this stage the Republican-controlled legislature of Illinois elected Davis to the state's vacant U.S. Senate seat, and he refused the commission appointment, although he stayed on the Supreme Court until March 3. Thereupon the four justices picked their colleague Joseph P. Bradley, a Republican whose record made him acceptable to the Democrats. Bradley leaned toward Tilden's convincing claim to the Florida vote, the Commission's first action, but Republican pressures swayed him, and the Florida tally went to Hayes, who had almost certainly lost it in fact. Thenceforward all votes followed Florida, on a straight party-line 8-7 basis. (Hayes's claim to Oregon was clearly legitimate, and fraud and intimidation by both parties had been widespread in Louisiana and South Carolina.) The final vote was reported to Congress on February 23. After a week of ominous bluster, which Tilden did much to quiet among his aggrieved followers, a tumultuous session of Congress convened March 1 to count the electoral vote and after 4 Am the next day declared Hayes elected; he was sworn in on the following day. The verdict was received bitterly by Democrats in the North and philosophically by those in the South, who had been promised by Hayes's allies that federal troops would be removed promptly from the former Confederate states, as in fact they were before the end of April. The threats of violence that had recurred throughout the dispute came to naught, giving a welcome sense of assurance to both factions that, even so soon after the Civil War, self-government and domestic peace were not incompatible. © 1999-2000 Britannica.com and Encyclopædia Britannica, Inc.
Excerpted from:ENCYCLOPÆDIA BRITANNICA RUTHERFORD BIRCHARD HAYES: 19th president of the United States (1877-81), who brought post-Civil War Reconstruction to an end in the South and who tried to establish new standards of official integrity after eight years of corruption in Washington, D.C. He was the only president to hold office by decision of an extraordinary commission of congressmen and Supreme Court justices appointed to rule on contested electoral ballots. Hayes's unblemished public record and high moral tone offered a striking contrast to widely publicized accusations of corruption in the administration of President Ulysses S. Grant (1869-77). An economic depression, however, and Northern disenchantment with Reconstruction policies in the South combined to give Hayes's Democratic opponent, Samuel J. Tilden, a popular majority, and early returns indicated a Democratic victory in the electoral college as well. However, Hayes's campaign managers challenged the validity of the returns from South Carolina, Florida, and Louisiana, and as a result two sets of ballots were submitted from the three states. The ensuing electoral dispute became known as the Tilden-Hayes affair. Eventually a bipartisan majority of Congress created a special Electoral Commission to decide which votes should be counted. As originally conceived, the commission was to comprise seven Democrats, seven Republicans, and one independent, the Supreme Court justice David Davis. Davis refused to serve, however, and the Republican Joseph P. Bradley was named in his place. While the commission was deliberating, Republican allies of Hayes engaged in secret negotiations with moderate Southern Democrats aimed at securing acquiescence to Hayes's election. On March 2, 1875, the commission voted along strict party lines to award all the contested electoral votes to Hayes, who was thus elected with 185 electoral votes to Tilden's 184. The result was greeted with outrage and bitterness by some Northern Democrats, who thereafter referred to Hayes as "His Fraudulency." As president, Hayes promptly made good on the secret pledges made during the electoral dispute. He withdrew federal troops from states still under military occupation, thus ending the era of Reconstruction (1865-77). His promise not to interfere with elections in the former Confederacy ensured a return there of traditional white Democratic supremacy. He appointed Southerners to federal positions, and he made financial appropriations for Southern improvements. © 1999-2000 Britannica.com and Encyclopædia Britannica, Inc. Excerpted from: ENCYCLOPÆDIA BRITANNICA In 1876 Tilden was the Democratic nominee for the presidency. The bitterly fought campaign ended in a disputed election in which Florida, Louisiana, South Carolina, and Oregon reported two sets of returns. To settle the controversy, an Electoral Commission was created by Congress. Tilden reluctantly consented to the formation of the commission but failed to provide vigorous and direct leadership in the crisis. The commission decided all questions by a strictly partisan vote, thus giving the presidency to the Republican candidate, Rutherford B. Hayes. There is evidence that the Republicans entered into a secret deal with Southern Democratic leaders to withdraw Federal troops from the South (where they were safeguarding Reconstruction) if the disputed electoral votes could be counted for Hayes. Tilden, who had received a clear majority of the popular vote, nevertheless accepted the verdict to avoid possible violence. © 1999-2000 Britannica.com and Encyclopædia Britannica, Inc.
APPENDIX 2: FLORIDA SUPREME COURT'S PER CURIAM OPINION ON REMAND IN BUSH V. GORE (December 22, 2000) The following three-page Opinion on Remand of the Florida Supreme Court (December 22, 2000) is followed by 28 pages of concurring opinions. The full document is available here: http://www.flcourts.org/pubinfo/election/ APPENDIX 3: A PARTIAL INDEX OF ALLEGATIONS OF IMPROPRIETY IN THE compiled by democrats.com Substantial, credible allegations of impropriety in the conduct
of Florida's Presidential Election before, during and after November
7, 2000 have been made by public officials, the press, public
advocacy organizations, and private individuals. Many of these
allegations have not yet been sufficiently proved, to the high
legal standard sufficient to merit consideration by Congress
at this time to cause the disqualification of the Florida Electors.
1. Before the election, Florida Secretary of State Katherine Harris spent $4 million of taxpayer funds to hire a firm to purge voters who were allegedly felons. The list of "felons" included 8,000 American citizens -- mostly minorities -- who committed only misdemeanors, and thousands of innocent people -- again mostly minorities -- with the same names as felons. By this action up to 58,000 U.S. citizens were denied due process and the right to vote. 2. Secretary Harris unlawfully certified the election results from 20 of Florida's 67 counties without requiring -- as mandated under Florida law for elections decided by one half of one percent or less -- that they conduct automatic machine recounts. 3. Secretary Harris unlawfully accepted and certified the results of hand recounts in six Florida counties that produced more than 400 votes for George W. Bush while rejecting the results of hand recounts in other counties. 4. In Duval County, a pre-election purge of the voter rolls unlawfully removed at least 22,000 voters -- mostly African-Americans -- who voted in the primary election in August 2000 but were denied the right to vote in November. Another 27,000 votes cast on election day were discarded, primarily in African-American sections of Jacksonville,representing as much as one-fourth of the votes in certain precincts. The Supervisor of Elections unlawfully withheld these facts from local Democrats until the deadline for requesting a recount in Duval County had passed. 5. The county canvassing board in Lake County rejected all ballots in which the voter not only correctly penciled in his or herPresidential choice in the appropriate oval beside the candidate's name but also emphasized that choice by writing in the candidate's name or the Vice-Presidential choice, just below a line that carries the instruction "WRITE IN." This is a violation of the state of Florida's election law directing that ballots be counted where the clear intent of the voter is evident. 6. Investigations by news organizations in Miami-Dade County have uncovered several hundred ineligible persons, including non-American citizens, who were permitted to vote on election day. These investigations of only a fraction of the Miami-Dade election districts suggest several thousandineligible persons may have been allowed to vote. In addition, methods used to secure and vote absentee ballots specifically found by the Florida Supreme Court to be unlawful in 1998 were repeated in the 2000election, resulting in an as-yet-unknown number of fraudulent ballots. 7. There is persuasive evidence in Broward County of the introduction of pre-punched ballots into certain precincts, the creation of false absentee ballots, and unlawful activities to suppress voter turnout including the purposeful assignment of non-working voting machines to precincts that have strong African-American populations. 8. Election supervisors in Seminole and Martin Counties have admitted to providing favorable treatment for Republican voters who requested absentee ballots that was denied to Democratic and independent voters. Republican election workers were permitted to correct incomplete absentee ballot requests, and those requests were honored even when the Republican election workers failed to correctly complete the forms. 9. The election supervisor in Okaloosa County directed that optical scanning machines be programmed not to reject erroneous ballots, resulting in an inflated number of uncounted and overcounted ballots. 10. Examination by democrats.com of ballots in four other Florida counties has produced evidence of post-election ballot tampering, apparently intended to reduce the number of overvotes (Jackson County), massively inflated number of overvotes in only the presidential race (Gadsden), and statistical anomalies in the election results (Liberty and Calhoun Counties). 11. The NAACP convened public hearings on Nov. 11, 2000 in Miami after receiving hundreds of complaints from minority voters in Florida as well as nationwide. The Association made a public record of these complaints by submitting them to the Justice Department on November 16. For details, see http://www.naacp.org/
This catalog is not intended to be complete or definitive; other substantial, credible allegations of election impropriety have been made, by a number of organizations.
APPENDIX 4: Sample Written Objections in the Presidential Election of 2000 [3 U.S.C. § 15] beginning on following page
107th Congress of the United States OBJECTION We, a Senator and a Member of the House of Representatives of the United States of America, do hereby object to the electoral votes proffered from the State of Florida for President of the United States and for Vice-President of the United States on the ground that the electoral votes so proffered have not been regularly given by electors whose appointment has been certified in accordance with Florida Law. 3 U.S.C. §§ 15, 6.
/s/ __________________________ Senator ______________________
/s/ __________________________ Congressman/woman ______________________
107th Congress of the United States OBJECTION We, a Senator and a Member of the House of Representatives of the United States of America, do hereby object to the electoral votes proffered from the State of Florida for President of the United States and for Vice-President of the United States on the ground that the electoral votes so proffered have not been regularly given by electors who were appointed in such Manner as the Legislature of Florida directed prior to November 7, 2000, the Time Congress determined for the choosing of the Electors. Article II, Sec. 1 of the United States Constitution
/s/ __________________________ Senator ______________________
/s/ __________________________ Congressman/woman ______________________
107th Congress of the United States OBJECTION We, a Senator and a Member of the House of Representatives of the United States of America, do hereby object to the electoral votes proffered from the State of Florida for President of the United States and for Vice-President of the United States on the ground that the electoral votes so proffered have not been regularly given by electors who were lawfully appointed by election by the voters in Florida in such a manner as to be consistent with the equal protection of the laws guaranteed by the Fourteenth Amendment, Section 1 of the United States Constitution.
/s/ __________________________ Senator ______________________
/s/ __________________________ Congressman/woman ______________________
107th Congress of the United States OBJECTION We, a Senator and a Member of the House of Representatives of the United States of America, do hereby object to the electoral votes proffered from the State of Florida for President of the United States and for Vice-President of the United States on the ground that the electoral votes so proffered have not been regularly given by electors who were lawfully appointed by election by the voters in the absence of illegal disenfranchisement of a portion of the Florida electorate.
/s/ __________________________ Senator ______________________
/s/ __________________________ Congressman/woman ______________________
107th Congress of the United States OBJECTION We, a Senator and a Member of the House of Representatives of the United States of America, do hereby object to the electoral votes proffered from the State of Florida for President of the United States and for Vice-President of the United States on the ground that the electoral votes so proffered have not been regularly given by electors who were lawfully appointed by the voters in an election free from systematic discrimination and inadequate and unequal voting systems that placed in doubt the true outcome of the election.
/s/ __________________________ Senator ______________________
/s/ __________________________ Congressman/woman ______________________
Footnotes: 1. The Constitutional and Statutory Procedures and Guidelines
for such a determination are set out respectively in Parts II,
IV, and IX below. 2. For the Election of 2000, Congress has determined "the
Time of chusing the Electors" to be November 7, 2000, 3
U.S.C. § 1; Congress has determined "the Day on which
they shall give their Votes" to be December 18, 2000,
3 U.S.C. § 7. 3. "The Vice President of the United States shall be
President of the Senate, but shall have no Vote, unless they
be equally divided." United States Constitution, Article
I, Section 3. 4. Historical information is drawn in part from excerpts of
entries on "Electoral Commission" and "Rutherford
B. Hayes" in Encyclopædia Britannica (1999-2000 Brittanica.com,
Inc.), attached as Appendix 1 hereto, from which all the historical
quotations in this Part are taken. 5. 3 U.S.C. § 15 provides (emphasis added): 6. 3 U.S.C. § 6 provides (emphasis added): 7. 3 U.S.C. § 5 provides (emphasis added): 8. "Although error cannot be completely eliminated
in any tabulation of the ballots, our society has not yet gone
so far as to place blind faith in machines. In almost all endeavors,
including elections, humans routinely correct the errors of machines.
For this very reason Florida law provides a human check on both
the malfunction of tabulation equipment and error in failing
to accurately count the ballots. Thus, we find that the Division's
opinion DE 00-13 regarding the ability of county canvassing boards
to authorize a manual recount is contrary to the plain language
of the statute." Harris II, slip op. at 14-15. 9. Orlando Sentinel, http://www.mediasense.com/itsnotover/congressbrief/Orlando-Sentinel.pdf 10. Salon Magazine, http://www.salon.com/politics/feature/2000/12/04/voter_file/index.html ("Madison County's elections supervisor, Linda Howell, had a peculiarly personal reason for distrusting the central voter file: She had received a letter saying that since she had committed a felony, she would not be allowed to vote. Howell, who said she has never committed a felony, said the letter she received in March shook her faith in the process.")
12. Punchcard voting systems systematically discard at least
five, if not ten times the ballots of optical-scanning systems.
The usual location of inadequate voting systems in poorer districts
caused a systematic bias against the Democratic candidate, in
an order of magnitude greater than either candidate's margin
of victory in Florida. A thorough discussion of technical and
operational problems associated with the Vote-o-Matic punch-card
system in use in several Florida counties was prepared by Computer
Professionals for Social Responsibility, at http://www.cpsr.org/issues/vote-o-matic.html. 13. Additional credible allegations of negligent or intentional
impropriety in the conduct of the Florida Election of 2000 are
discussed in Appendix 3 hereto. 14. In the event Florida's electoral votes are rejected by Congress, Vice President Albert Gore, Jr. would win the Presidency, and Senator Joseph Lieberman would win the Vice-Presidency, by a margin of 267 to 246 votes in the Electoral College. counsel for Democrats.com with the assistance of Michael North, member of the Advisory Board of Democrats.com
http://www.mediasense.com/itsnotover/congressbrief/ |