How to Steal it Back

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Friday afternoon, it was unclear whether Son of Daley’s Vote Stealing Operation would succeed in reaching its goal by the Sunday, 5:00 p.m. deadline. Even if Gore doesn’t steal the necessary votes by Sunday, he could still win in a "contest" proceeding. Let’s assume Gore steals the election. As a service to the republic, the Bush Campaign, and the liberal media who cannot seem to figure out the legal stuff even with a staff of law professors larger than the number of lies in Al Gore’s repertoire, graciously offers the following strategies for stealing it back.

No, President Bush should not have gone to the Supreme Court. (As this article was being written, they denied his appeal concerning selective manual recounts, but granted him permission to appeal concerning the extension of time to do manual recounts.) Bush has now lost in federal court three times and suffered in the public relations war in the process. A loss in the Supreme Court could damage his hopes of stealing it back. The federal courts have been reluctant to get involved because the equal protection case law is not favorable and because Bush lawyers did not ask for a manual recount in Republican counties. Ted Olson is a fine lawyer, but he’s leading Bush down the primrose path. Bush can try an election “contest,” but with Gore forces in control of the Florida Supreme Court, he is going to lose that too.

Bush cannot rely on the Congress to bail him out since the Senate is 50-50 and both houses are needed to reject a slate of electors. Also, I believe the rejection of the Florida slate would reduce the "majority" of appointed electors, allowing Gore to win with his non-Florida majority. I do not believe the State Legislature can cure the Florida Supreme Court’s decision, since the Court would come back and say that the law that governs is the law that was in effect on Election Day. Finally, the Florida Legislature should decline David Boies’ advice and not go to federal court where they would probably lose. Here’s how to win:

Option "A". If Gore wins the election and is certified, the State Legislature should nevertheless appoint its own pro-Bush slate. The rationale? 3 U. S. C. 5. A careful reading of this oblique statute could support the conclusion that it bars a state from resolving a contest over an election based on rules enacted after the election! Isn’t that what the Democrats are doing with their extensions of time to recount, restrictions on Bush’s time to contest and hold evidentiary hearings, and, most importantly, post hoc changes in rules concerning whether a hand recount can be held and post hoc changes in rules determining what "votes" are to be considered in manual recounts? The Gorons are violating this statute. The obvious remedy is for the State Legislature under its Constitutional and federal statutory authority to step in and appoint a Bush slate in response to this violation.

The Bush slate should vote and send its votes to Congress. On January 6, 2001, there would be two competing slates. The Senate would approve the Gore slate with Al "no recusal" Gore casting the tie-breaking vote, while the House would vote for the Bush slate. In that event, Governor Jeb Bush can certify the Bush slate according to 3 U. S. C. 15 and that decision must be accepted by the Congress:

"[I]f the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted."

Jeb Bush will be viciously attacked for doing this, but what’s a brother to do? If he refuses to act, Florida’s votes don’t count and Gore is elected. His only choice is to certify Gore or Bush! And for the dimwits in the liberal press, he is not required to recuse himself because he is not a judge!

Caveat. It has been suggested that the Democrats in the State Senate could block the appointment of a Bush slate by filibuster. Under the circumstances, I do not see this as an insurmountable obstacle. First, I believe it is possible to find two Democrats in marginal districts who will oppose a filibuster in order to avoid Florida being totally disenfranchised in the Electoral College (which will happen if the House rejects the Gore slate). Second, I believe public pressure against such a filibuster would be enormous. Third, the presiding officer need only recognize first a Bush supporter who could then control the debate (See, Senate Rule 8.2 and rent Mr. Smith Goes to Washington). Fourth, Senate Rule 8.5 puts a thirty minute limit on an individual Senator’s right to speak. Fifth, the Senate could change its rules by a majority vote. (This tactic smacks of unfairness, but it is less unfair than allowing an election to be stolen.) Finally, the presiding officer could rule, quite rightly, that the Senate Rules cannot be used to prevent the Legislature from fulfilling its Constitutional duty to ensure that Florida is represented in the Electoral College, and that ruling could be sustained by a majority vote.

Option "B". The U. S. Code allows the State Legislature to appoint electors if the state has failed to elect them. 3 U. S. C. 2. The Florida Supreme Court will ensure that Gore wins all court contests. They will also order the Secretary of State and Elections Canvassing Commission to certify the results of the election in favor of Gore. Unless the state "fails" to elect a slate of electors, the Legislature cannot act (but see, Option "A"). The election results must be certified by the Secretary of State ( 103.011) and the Elections Canvassing Commission. ( 102.121). If no certification is issued, the state has "failed" to elect. Thus, it is obvious that to trigger the Legislature’s right to appoint electors pursuant to 3 U. S. C. 2, there must be no certification. This can be accomplished in two ways (1) refusal to act, or, (2) resignation. If the officials refuse to act, they could be subject to contempt proceedings, however, they would also be eligible for pardons. However, if these officials were to resign prior to certification and before the ultimate outcome of the election is known, a contempt proceeding is highly unlikely.

This is a roadmap to stealing it back which relies exclusively on Republican elected officials acting in accordance with the law. No Democratic hacks, activist judges or liberal editorial writers need be consulted. Congratulations Mr. President, and tell Al Gore that you would be glad to meet him on January 20th at the Inauguration. (But guard the Presidential seal!)

November 25, 2000

James Ostrowski is an attorney practicing at 984 Ellicott Square, Buffalo, New York 14203; (716) 854-1440; FAX 853-1303. See his website at

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