To avoid chaos, courts must prepare for election suits

What is past is prologue. Events from the presidential election 20 years ago may have a direct bearing on this year’s Nov. 3 election.

This fall, every state must be ready to act quickly, with short deadlines, to safeguard voters’ rights in the 2020 presidential election. The clock will be rapidly ticking with only 35 days for election disputes to be finally decided by the state. Essential to safeguarding voters’ rights in the 2020 presidential is preparation by courts in every state as to the law of presidential elections.

This is the lesson I learned presiding over the legal cases in Bush v. Gore in 2000. There are two fundamentals.

The first is that the election laws of each state control the voting, counting of votes and reporting of votes in that state. I learned that the same law applied to voting for president is applied to voting for Florida’s governor, state cabinet officers, county sheriffs and other Florida offices.

The second, and of crucial importance, is that the United States code controls voting by the state’s electors in the Electoral College. State courts must be aware of, and plan to meet, the demanding requirements of Title 3 United States Code Section 5. This is what is known as the “Safe Harbor Provision.”

The section provides that if all controversies are finally determined by a state at least six days before the meeting of the electors, that determination shall be conclusive and shall govern the counting of the electoral votes.

In 2000, this meant that the crucial date was Dec. 12. For 2020, the electors will meet on Dec. 14, which means controversies must be resolved by Dec. 8.

Florida had many controversies in 2000, with lawsuits filed in literally every jurisdiction — county, circuit and federal. At the Florida Supreme Court, we had oral arguments in two cases. As I point out in my 2013 book, “Inside Bush v. Gore,” the first question I asked lawyers representing then-Gov. Bush and then-Vice President Gore was when all controversies had to be resolved so that Florida’s electors would be able to participate in the Electoral College.

I asked this question because I had become aware of the very real problems and incalculable delays that would arise if the time requirements of the safe harbor provision were not met. Not meeting the time requirements would have triggered Section 15 of the United States code that was adopted following the 1876 election in which controversies had to be resolved through Congressional negotiations.

I concluded in 2000 that Section 15 was very difficult to understand and would lead to further litigation and delays in determining who had won the election.

Fortunately, with the good work and extraordinary efforts of my colleagues and superb work of the staff at the Florida Supreme Court, we issued a decision on Dec. 8, 2000, that allowed the U.S. Supreme Court to enforce the “safe harbor” provision, ending any further delays in who would be president on Jan. 20, 2001.

In its decision issued on the crucial date of Dec. 12, 2000, the court noted that even though the Florida Supreme Court had on occasion taken over a year to resolve disputes over local elections (16 months in the election of a sheriff ), we had heard and decided the appeals in the present case with great promptness. Chief Justice William Rehnquist stated that “the federal deadlines for the presidential election simply do not permit even such a shortened process.”

In halting the Florida recount, the Chief Justice Rehnquist made clear he was concerned it could not be accomplished in time to meet the Dec. 12 deadlines, and introducing “the very real possibility of disenfranchising (Florida’s) nearly six million voters who are able to cast their ballots on election day.”

I continue to believe this is a vital lesson as we approach election day 2020.

The 2020 presidential election will not tolerate a delay that would exceed this year’s Dec. 8 deadline. Exceeding that date will move our country into uncharted complications and delays.

It is plain we must have a president on Jan. 20, 2021.

State courts are vital to making this happen, and they must prepare to make it happen.

This fall, every state must be ready to act quickly, with short deadlines, to safeguard voters’ rights in the 2020 presidential election.