State Legislatures Magazine: February 2001

Editor's Note: This article appeared in the February 2001 issue of NCSL's magazine, State Legislatures. To order copies or to subscribe, contact the marketing department at (303) 364-7700.

Trial by Fire: Florida Legislators Feel the Heat

Fear of No Legitimate Elector Slate
Lawsuits Drag On
Senate Saved from Vote

Election Reform Will Dominate the Session

Speaker Tom Feeney

Senate President John McKay

Trial by Fire: Florida Legislators Feel the Heat

Nothing had prepared the Florida Legislature (full of freshman lawmakers) for the role of picking the president.

By Lucy Morgan
It's not what they expected. Florida legislators were due in Tallahassee for training sessions designed to help 64 freshmen learn how to handle life as lawmakers. In office only two weeks, they suddenly found themselves caught up in the middle of a worldwide drama that was about to force them to pick a new president of the United States.

They had no Capitol offices, no telephones, temporary parking places, and were learning how to cope with state-issued laptop computers when they arrived in Tallahassee in early December and found CNN, CBS, NBC, ABC and FOX news laying siege to the Capitol.

After days of counting and recounting ballots in several south Florida counties, George W. Bush led Al Gore by 537 votes in a state where 6 million voters turned out. Florida's vote would determine the presidency, and legislative leaders were pushing for a special session to approve the Bush electors and ensure a Republican victory.

"It almost feels like the freshman class of Congress whose first vote was to go into war-Desert Storm,'' said Republican Representative Bob Allen. He manages rocket scientists in a space technology business and is in his first month as a citizen legislator.

Thanks to eight-year term limits approved by voters in 1992, 51 members of the House and 11 members of the Senate were tossed out of office in November. The House wound up with 63 new members, and 12 new senators were elected. All but one of the senators previously served in the House, but only two members of the House had previous legislative service.

They had expected to face serious budget problems and a continuing war between trial lawyers who want the right to sue HMOs and business lobbyists who want to limit litigation-but nothing had prepared them for a role in picking a president.

The possibility of legislative intervention was initially floated by House Speaker Tom Feeney when he learned that a little known provision of the U.S. Constitution called on legislators to appoint presidential electors when all else failed to give a state's electors "safe harbor.'' It was a provision of law that had not been used in modern times and legal experts disagreed over how it should be used.

FEAR OF NO LEGITIMATE ELECTOR SLATE
As lawsuits flared up in Miami, West Palm Beach, Sanford, Tallahassee, Deland and Fort Lauderdale, Feeney and Senate President John McKay began talking to experts and looking at the possibility that Florida would not have a legitimate slate of electors by the time they were scheduled to vote on Dec. 18.

Legislative leaders initially feared that so many new members would create a situation that would be hard to control, but it quickly became clear that the new members would vote along partisan lines.

Several freshman Republicans were faced with the possibility of voting for electors pledged to George W. Bush, despite the fact that a majority of the voters in their districts voted for Al Gore.

"My district went for Gore, but I'm going to vote Republican," said Representative Holly Benson of Pensacola. "I'm kind of disappointed. I campaigned on a bipartisan message. It's really hard for my first decision to be a partisan one."

Some freshman House members were so eager to join the fray, they started a petition campaign to call a special session. Under an inconspicuous state law that had never been successfully used, they tried to get 32 identical letters from members asking Secretary of State Katherine Harris, who was already under fire from Democrats, to call a session.

Some of the freshmen feared House and Senate leaders were under so much pressure that they would not call the special session a number of experts said was necessary to guarantee Florida had a secure slate of electors for Bush.

"Several of us felt we should have had a special session earlier in the game," said Republican Representative Michael Bennett. "I think it's really a grass roots thing from members of the House and Senate."

In the end it wasn't necessary. Speaker Feeney and President McKay called a special session to begin Friday, Dec. 9, after getting a recommendation from a joint committee that heard from a series of experts. Feeney had been ready to plunge in for more than a week, but McKay moved with more caution, saying he was reluctant to force a vote on legislators if Bush could win in the courts.

LAWSUITS DRAG ON
But when the highly publicized lawsuits dragged on and on and the campaign rhetoric escalated, McKay capitulated and agreed to the special session. But he insisted that it be spread across a weekend so the vote would be postponed until the last possible minute, allowing time for the courts to act.

After the Florida Supreme Court backed Gore with a controversial 4-3 ruling on the same day lawmakers convened, it appeared that legislators would have to take a vote to guarantee a slate of Florida electors by Dec. 18.

Committees met throughout Monday, Dec. 11, listening to experts and witnesses who had been brought to Tallahassee in buses by the Democratic National Committee, as well as the Republicans. Outside, protestors led by the Reverend Jesse Jackson railed against a special session and accused Florida's leaders of discriminating against black voters.

On the same day in Washington, D.C., the U.S. Supreme Court heard oral arguments from lawyers for Bush and Gore. A day later, following hours of speeches, House members voted for a resolution that would send a slate of electors pledged to Bush to Washington.

House Democrats denounced the measure as illegal and accused the Republicans of precipitating a constitutional crisis that could result in dueling slates of electors and a vote by Congress.

The 79-41 vote included two cross-over Democrats from conservative districts and all 77 Republicans voting for a slate of Bush electors. Democrats vehemently denounced the vote, predicting that it would create chaos and division in the months to come.

"This might be the most important issue any of us ever vote on in our lives," Feeney told House members after the vote. "We've never done this before. I hope the U.S. Supreme Court will render moot what we've done today."

SENATE SAVED FROM VOTE
Late Tuesday night, just hours after the House vote, a sharply divided U.S. Supreme Court overturned the Florida Supreme Court decision, effectively awarding the presidency to Bush. McKay, the Senate leader, conferred with lawyers and staff and decided to postpone a scheduled Senate vote, waiting for the next move by the Gore campaign.

The delay saved the Senate from taking a partisan vote that might have had long-range implications for a chamber that has historically seen Republicans and Democrats work together. On Wednesday night, Vice President Gore conceded and halted all legal action. On Thursday, McKay, determined to keep the Senate out of the fray, adjourned without taking a vote on the House resolution.

"We've had an extraordinarily close glimpse of history," McKay told members of the Senate after announcing the session would end without a vote. "It is now time to turn our attention back to the issues that are most important to the people we serve."

Black legislators remain bitter. Democrats say the animosity caused by the fight will carry over to other issues when lawmakers return for their annual 60-day session in March.

"The good news is that it's over," said newly elected Senator Rod Smith, a Democrat from Gainesville. "We knew the process would work."

McKay praised a system created more than 200 years ago that withstood the tests of time.

"It's a pretty darn neat civics lesson," he added.

Lucy Morgan, Tallahassee bureau chief for the St. Petersburg Times, has covered the Florida Legislature for many years.

Election Reform Will Dominate the Session

The worldwide focus on Florida for 37 days after the election put a harsh spotlight on the state's voting process. Confusing ballots in Palm Beach apparently led several thousand voters to vote for Reform Party candidate Pat Buchanan. Others voted for two candidates, and some voters who thought they had registered under the state's "motor voter" law found they weren't registered at all.

Black voters and the Reverend Jesse Jackson marched on the state Capitol to complain that some of them were threatened and intimidated and unable to vote. The U.S. Civil Rights Commission is investigating.

Elections officials in Broward County counted ballots using one set of criteria while officials in Palm Beach used another. The differences meant some ballots with hanging chads were counted and others weren't. Debate raged over the counting of "dimpled chads."

The election flaws that made the national spotlight are likely to dominate the 2001 legislative session, which was already expected to be historic because it marks the first session since term limits kicked out 51 members of the House and 11 from the Senate.

Legislators and a special task force appointed by Governor Jeb Bush already are scrambling to figure out how to restore confidence in elections. Former Secretary of State Jim Smith and University of Miami President Tad Foote will chair the 21-member task force. It will include members of the House and Senate, elections supervisors, judges and other state and county officials.

Officials hope to have some reforms in place by the 2002 election when Florida next goes to the polls to elect a governor, but fear many of the improvements won't be made before 2004.

Dozens of bills are being filed to change the way the state votes. Some lawmakers want uniform ballots and clear guidelines for counting them. Others want to get rid of the controversial punch card ballots used in 27 of the state's 67 counties.

State officials estimate it will cost up to $200 million to replace the outdated equipment in many Florida counties. But there are legislators reluctant to spend state money on equipment traditionally purchased by county government, particularly when some counties have already spent money to update their own equipment and others have not.

And the need comes in a year when lawmakers are already facing a $900 million budget shortfall and a request for cutbacks in the state's $50 billion budget.

Legislators had planned to spend their next session dealing with budget problems, a nursing home crisis, the increasing cost of medical care and prescription drugs, and other problems facing the state, but now fear those issues will take a back seat to election reform.

Traditionally, election bills are the hardest of all to pass, and lawmakers are usually reluctant to make substantial changes in the system that put them in office. But after being the butt of jokes on "Saturday Night Live" for weeks, lawmakers say they are determined to fix the problems as soon as possible.

Republican legislative leaders say they believe the partisan differences of November and December can be laid aside as they join forces to deal with important problems that face the state.

Democrats are less certain.

Speaker Tom Feeney

House Speaker Tom Feeney, 42, is a veteran of Florida political fights. He was initially elected to the House of Representatives in 1990 and left the office in 1994 to run for lieutenant governor with Republican Jeb Bush. They lost that race, in part because Governor Lawton Chiles relentlessly poked fun at Feeney and some of his radical ideas.

Feeney came back to the House after a special election in 1996 and quickly gained respect as a prospective leader in a House that was under the control of Republicans for the first time since Reconstruction.

A lawyer who is quick to comment and always open and friendly, Feeney is part of the House's religious right and generally supports pro-business issues. Under his leadership the House has grown slightly more Republican, picking up a net of two seats in the 2000 election.

Tradition in the House calls for a speaker to serve a two-year term and then leave office.

Senate President John McKay

Senate President John McKay, 52, was elected to the Florida Senate in 1990. It is his first-and last-public office. A real estate broker and developer from Bradenton, Republican McKay says he'll return to his private business when his two-year term as president ends.

McKay is a deliberative, soft-spoken senator who keeps a low profile. During a decade in the state Senate, he has taken an interest in education and developing a pro-business climate throughout the state.

"John McKay has emerged from this crisis as a much stronger leader," says Senate Rules Chairman Tom Lee. "He established himself as someone who can handle a tough issue and move deliberatively."

McKay comes from an old Florida family that has been active in the Tampa Bay area since the early 1900s. He is unfailingly polite and says he expects the Senate over which he presides to set the standard for cordiality.

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