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Look who's talking in the Legislature

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© St. Petersburg Times, published December 3, 2000

TALLAHASSEE -- If hypocrisy were a hydrocarbon, there are people in the Florida Legislature who could put OPEC out of business.

They are threatening a special session that would make even Huey Long blush.

To hear some of them, it would be only to appoint a slate of electors -- George Bush's electors, of course -- in the event some court order leaves Florida without a valid slate on file at the National Archives on Dec. 12. As of now, of course, the duly certified Bush slate is the only Florida slate ensconced there.

But you can bet the farm that Tom Feeney & Co. intend also to prevent any court from substituting Al Gore's slate instead. The message: Don't bother recounting. It doesn't matter who really won Nov. 7. The fix is in.

"Heads, Bush wins. Tails, Gore loses," as one Democrat put it.

The Democrats might do the same if the roles were reversed, but for now it's the Republicans who are confusing power with principle.

Their sanctimonious mantra, as rehearsed endlessly in committee last week, is that they have a "duty to save 6-million Florida voters from being disenfranchised in the Electoral College."

Many of those 6-million would be delighted to be unrepresented in the Electoral College on Dec. 18. It would make our guy president, which would be better than being misrepresented, as we are about to be.

Counting all the also-rans, 136,810 more Floridians voted against Bush than for him. In fact, the Socialist Worker's Party got more votes than Bush's margin. But because Bush still had (officially) 537 more votes than anyone else, he gets the benefit of everyone's votes -- all 25 electors, which will make him our first runner-up president since Benjamin Harrison.

This is the electoral system as we know it. Regrettably.

Tom Rossin, the Florida Senate Democratic leader, served notice that if it goes to a special session, there'll be an amendment to apportion the electoral votes: 13 for Bush, 12 for Gore.

"If we have the power to name electors, why don't we just split them?" he said. Just as the voters did.

As that amendment would elect Gore, you know what will happen to it. So does Rossin. But the point will be made -- not just for now, but for future elections. As the Republicans themselves argue, states can set up the electoral vote any way they want.

The question of the moment in Tallahassee is whether they can also do it after the voters voted, in disregard of what a recount might show.

The GOP is relying on advice from a couple of lawyers whose advice they had to scour the country to find. Essentially, it's that the Legislature can do almost anything it pleases about presidential electors whenever it pleases no matter what its own laws, courts or state Constitution might say.

The point man for this point of view is Roger Magnuson, a Minnesota lawyer who is also dean of a correspondence law school based on Biblical principles, and who is better known for representing the Minnesota Twins and writing a book against homosexuality than for any expertise in constitutional law. His listing in the Martindale-Hubbell legal directory describes his practice areas as "shareholder litigation, shareholder law, securities law, white-collar crime law, business litigation." When Senate Democrats got conflicting advice from an acknowledged constitutional expert, Yale professor Bruce Ackerman, Magnuson attacked it as "eccentric."

Magnuson quoted from a 1892 Supreme Court opinion, McPherson vs. Blacker, to argue that the power to appoint electors, in the court's words, "is conferred upon the legislatures. . . . by the Constitution of the United States, and cannot be taken from them or modified by their State constitutions any more than can their power to elect Senators of the United States. . . ."

Trouble is, those weren't the court's own words. Magnuson didn't bother to tell the committee that the court was quoting a U.S. Senate report illustrating the history of the electoral system. Lawyers call this dicta. It's not binding.

"When you quote a 100-year-old decision, you need to be cautious on a couple of points," remarked Sen. Rod Smith, D-Gainesville, who was the only constitutional lawyer on the joint committee. "One, times have changed. Two, the court may have changed. Three, be sure you're not quoting dicta out of context."

Magnuson is also leading the Legislature onto the shaky limb of doing what they will do by resolution rather than by a bill that Gov. Jeb Bush would have to sign into law.

Magnuson neglected to mention a 1968 case in which the Supreme Court said the Ohio Legislature couldn't do what it pleased about electors if that meant denying George Wallace's party a fair chance to be on the ballot.

Justice John Marshall Harlan was in that majority. One of his law clerks that year was Bruce Ackerman. The same Ackerman whose opinion Magnuson calls "eccentric." That was like being called ugly by a frog.

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