Another Mess in Florida?

It sounds like there are already more lawyers down there than voters. Let's not forget, as NRO's Mark Levin pointed out today, that the state legislature has the final say in choosing the Electors for President. I certainly hope it doesn't come to that, but it's something for the Florida legislature to keep in its back pocket in case the lawyers don't behave themselves.

Here's what Article II Section 1 of the U.S. Constitution says (emphasis added):

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice-President, chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

In Bush v. Gore, the U.S. Supreme Court affirmed the long-standing interpretation that this section grants the state legislatures plenary (i.e. absolute and unqualified) power to appoint Electors (emphasis added):

The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. U. S. Const., Art. II, Section 1. This is the source for the statement in McPherson v. Blacker, 146 U. S. 1, 35 (1892), that the State legislature's power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by State legislatures in several States for many years after the Framing of our Constitution.

History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter.

The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. (''There is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated'') (quoting S. Rep. No. 395, 43d Cong., 1st Sess.). The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another. See, e.g., Harper v. Virginia Bd. of Elections, 383 U. S. 663, 665 (1966) (''Once the franchise is granted to the electorate, lines may not be drawnwhich are inconsistent with the Equal Protection Clause of the Fourteenth Amendment'').