Salon: How Jeb Bush cheated America & helped deliver the presidency to W

[Samantha]

33. Yes, the legislature determines the slate, but the Florida state constitution stipulated that the

makeup of that slate would be determined by the outcome of the popular vote. So if the recount had in fact been allowed to be completed as the Florida Supreme Court had ordered, whatever the result of that recount turned out to be as far as Republican votes and Democratic votes, the Florida legislature had by its own law to assemble the composition of Electoral College Votes to reflect the results of the popular vote.

So the Legislature has you say the ultimate authority, but it was required to determine the law by inserting the rules in the state Constitution prior to the election (which it had done). It is not allowed after the election if one did not like the results to ab-lib in the moment and verbally make new laws. That is Unconstitutional. Florida is among the 48 states that is "winner take all." So if a Democrat were determined to have been the winner of the election after the recount, all of the slate would have been Democratic. Same if the recount reflected a Republican winner. The Legislature at that critical point had no legal backing to step in and change the rules.

The winner does not have to reach 270. The winner must win a majority. If the Florida slate were thrown out (discounted), the winner of the majority would have been Gore. I know there are those that say what your words reflect above, but experts at the time said 270 was the number needed only if Florida's votes were counted (electoral college votes). If they were excluded, that number would have been reduced by 25 and Gore would have held the majority. The election would have gone to the House of Representatives had there been a tie.

http://www.npr.org/sections/itsallpolitics/2012/10/31/163950264/presidential-race-what-if-there-are-two-winners

There's a small chance that the Electoral College could wind up in a tie, throwing the election decision to the House of Representatives. And there's a greater chance that one of the candidates (likely Obama) could carry the Electoral College — and with it, victory — even while losing the popular vote nationwide.

All of this being said, I am not an election law expert nor an attorney, and I do not play one on DU. For every fact you and I have both written, the other can refute it with examples in our electoral college history which ended up in an unorthodox manner.

But the best thing is, I believe, it is very healthy to hammer some of these questions out and what the basic law is because we might need a lot of sudden familiarity with this issue in 2016, and it is guaranteed that all the "experts" we hear commenting will be saying different things. This is what happened in 2000, so we need to know the laws ourselves.

Sam