| January 21 |  |
Editor says, what if the Chief Justice had been off sick during the Florida recount? muses Patrick Popehat on the Popehat web site. Please note that the opinions expressed in this post do not necessarily reflect the views of the author(s). This story was published in the February 2011 edition of Changing the Times Magazine.
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In 2000, suppose that Rehnquist's back pain became so severe that, due to surgery or narcotics, he was temporarily unable to fulfill his duties as Chief Justice?
William Rehnquist suffers crippling back pain in December 2000Blogging is probably going to be light today, so I'll pose a hypothetical question that may never be answered.
First, we know that the late William Rehnquist, the former Chief Justice of the United States Supreme Court, did suffer from severe back pain for much of his career. Suppose that during the month of December 2000, Rehnquist's back pain became so severe that, due to surgery or narcotics, he was temporarily unable to fulfill his duties as Chief Justice.
On December 8, 2000, the Florida Supreme Court ordered a statewide manual recount of all ballots cast in the Presidential election held the month before. The Florida recount, according to some, might have taken months to complete and certify. President Bill Clinton was scheduled to leave office on January 20, 2001.
An article from Popehat: A Group Complaint about Law, Liberty, and LeisureOn December 12, 2000, the Supreme Court ordered a halt to the recount, handing an effective victory along with Florida's electoral votes to George W. Bush in the still controversial case of Bush v. Gore. The case was decided by a vote of 5 to 4, with Rehnquist in the majority.
Now, if any Justice in the majority, let's say Rehnquist, had been unable to decide the case for any reason, the vote would be 4 to 4, leaving the lower (Florida Supreme) Court's decision standing. The recount would go on. Let's say until March.
Which leads to another question: Who would be President on January 21, 2001?
You are armed with a copy of the United States Constitution, the most authoritative document which purports to answer this question. And I'll submit that its answer is not at all clear. You may use any school of legal reasoning to decide this question. You will receive extra credit for explaining your answer in detail, whether by reference to text, history, statute, or case law (assuming that, unlike me, you can find an applicable statute or case)..
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Patrick at Popehat
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Permalinks: Post, Day. Browse Thread: Politicians Source: Popehat Labels: Florida, Rehnquist, Bush, Gore, 2000 Election.
~ I think that recounts that went on after the deadline specified in Florida law would be considered invalid, and Bush would still get in.
~ Provided the count was still going to March, under presidential succession, we might get a filler for a couple of months from the Speaker of the House. 42 1/2 President Dennis Hastert.
~ 1. Florida law did not set hard-and-fast deadlines for recounts. The Dec. 12 "deadline" referred to an arcane "safe harbor" provision which, according to legal experts, was not disapositive.
2. But the Republican-controlled Florida legislature had threatened to name its own slate of Bush electors if any recount went Gore's way, and the Republican U.S. House of Representatives had threatened to refuse to recognize Gore electors if that failed. (Before the election, believing Gore might win in the Electoral College while losing the popular vote--the opposite of what actually happened--House Republicans researched how they could ignore the EC if they had to. Only when it became necessary to their victory did it suddenly become sacred.)
3. The recount had been well underway before the Supreme Court's late-night Dec. 12 Bush v. Gore ruling. The Court itself had felt forced to intervene to prevent the count from going the "wrong" way, by stopping the count with a stay order the weekend prior to issuing its final decree. If the count had been allowed to resume, it would almost certainly have been completed not only before Inauguration Day but well before Jan. 6, 2001, when the Senate would have read off the electoral votes.
4. Electoral disputes have dragged on before. Not until the first week in January 1961 were Hawaii's electors finally awarded to John F. Kennedy (and no, even if you threw in Illinois' electorsd too, switching them to Nixon wouldn't have put him over the top). Neither side in that election felt the need to deploy rent-a-mobs to get its way.
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