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Constitutional crisis over Electors? Bob Poe says Florida’s been there, done that

Donald Trump reportedly wants states to certify Electors for him regardless of popular vote.

In December 2000, Florida Democratic Party Chairman Bob Poe was ready to fly to Washington D.C. at the last second to try to formally submit names of Florida’s 25 Presidential Electors who were to vote for Al Gore in the Electoral College, and hand him the presidency.

The key verb in Poe’s recollection of that time is that he was prepared to “try” to submit the names of Florida’s Electors. That attempt could have sparked a constitutional crisis, one that is emerging again this year, as a possibility for the 2020 presidential election, Poe said Thursday.

“Nobody knows what would have happened if we had submitted our list of Electors,” Poe recalled to Florida Politics on Thursday. “It’s very likely that we would have had a constitutional crisis.”

The scenario Poe described for 2000 would have been followed only if the Supreme Court of the United States had ruled that Gore had won Florida’s popular vote in the General Election. Ultimately, after 36 days of nail-biting, the High Court did not do so. The matter was  famously close until the end, with George W. Bush officially winning Florida and the presidency only when Gore finally conceded, rather than pursue yet another round of legal challenges.

Meanwhile, Gov. Jeb Bush — George W. Bush’s brother — already had submitted names of 25 Electors loyal to the Republican to serve as Florida’s representatives to the Electoral College, which actually elects the President. Jeb Bush had done so even before Florida’s popular vote winner was finally determined.

Poe recalled that many people assumed that Jeb Bush also had done so regardless of the popular vote winner being determined.

“They did it preemptively,” Poe charged.

All of this was on Poe’s mind after this week’s reports in The Atlantic — some of it confirmed by other media — that President Donald Trump‘s reelection campaign has been encouraging various state Republican parties and legislative leaders to submit lists of Electors loyal to Trump regardless whether he or Democrat Joe Biden wins the popular vote in their states.

“The chair of the Pennsylvania Republican Party even went on record … that having the state’s legislature simply give Trump its electoral votes is ‘one of the available legal options’ they’re considering,” The Atlantic reported on Sept. 23.

That’s apparently legal, Poe said. Florida was on the verge of battling for the precedent 20 years ago.

“The Atlantic article pointed to these ‘loyal Electors’ in states like North Carolina and talked about it never happening before, at least never happening in the last century. But in fact it has, right there in Florida, in 2000,” said Poe, a longtime Orlando resident who now lives in California.

In 2000, with the presidential election outcome in the balance, Florida dove into the nightmare of recounts and state and federal litigation that made Florida forever the poster child of election chaos.

Secretary of State Katherine Harris certified the election results with George W. Bush winning. It was her election certification, however, that was being contested in court. Yet Jeb Bush signed the formal federal documents, the “Certificate of Ascertainment” with the list of presidential Electors, and shipped them to Congress on Nov. 27.

That left Poe, Gore, his legal team, and Florida Democrats with the possibility that, should the Supreme Court have ruled that Gore had won Florida’s popular vote, any list of Gore Electors that Poe might try to submit could be rejected. After all, Florida already had submitted its list.

“It’s always been done by tradition in Florida that the Republican Party submits its list if the Republican wins, and the Democratic Party submits its list if the Democrat wins. But the law says that the Legislature is the one that makes the ultimate decision, and they could do whatever the hell they want,” Poe said. “The popular vote be damned. They don’t have to adhere to that.”

There was no time for the Legislature to act anyway.

Federal law requires that the Certificate of Ascertainment and the Electors’ names to be submitted by the “Safe Harbor Day,” which was Dec. 12, 2000. That’s why Poe’s bags were packed.

The Supreme Court did not make its final ruling until Dec. 12.

The High Court ruled for Bush. Gore quickly conceded.

Poe missed his flight.

Written By

Scott Powers is an Orlando-based political journalist with 30+ years’ experience, mostly at newspapers such as the Orlando Sentinel and the Columbus Dispatch. He covers local, state and federal politics and space news across much of Central Florida. His career earned numerous journalism awards for stories ranging from the Space Shuttle Columbia disaster to presidential elections to misplaced nuclear waste. He and his wife Connie have three grown children. Besides them, he’s into mystery and suspense books and movies, rock, blues, basketball, baseball, writing unpublished novels, and being amused. Email him at scott@floridapolitics.com.

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