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Instead of grabbing a sandwich and heading for the lawns at lunchtime on Tuesday, many of UC Berkeley’s law students took their brown bags and bottled water and headed for Booth Auditorium at Boalt Law School.  

The reason: to hear three of their professors discuss the legal issues surrounding last week’s presidential election and the Florida recount. 

The professors, Jesse Choper, John Yoo and Philip Frickey discussed topics they felt the media haven’t covered such as the laws in Florida that will shape the outcome of the recount, and how the electoral college works.  

“I liked it when they quoted the statutes because it helped me see what the law actually says about the recount and until now I haven’t really known,” said second year law student Tim Worrall. 

Choper quoted two conflicting statutes that apply to the recount in Florida neither of which, he said, have received much play in the media. 

The first states that the county canvassing board shall file results immediately after certification. If not, such returns may be ignored. This statute, 102.112, leaves up to the discretion of the Secretary of State the question of whether the 5 p.m. deadline to turn in hand counts is the final deadline. 

“He or she may ignore the counts or may certify them,” Choper said. 

The second statute stands in direct conflict with the first. It states that if the count is not received by deadline all votes shall be ignored. 

“This plays badly for those who are impatient,” Choper said. “We need to let the Florida law run it’s course.”  

The question of what happens if Florida does not certify its votes was answered by professor John Yoo. 

“I will try to be partisan, arbitrary, but be definitive,” he quipped as he took the microphone.  

If the vote of the electorate is set aside, the president will have to be elected by a majority of the House of Representatives, he said. 

If that ended with a tie, the vote would go to the senate. If there was a tie vote in the Senate, Al Gore would cast the deciding vote. And if Gore recused himself the Constitution says the statute that determines who takes office in the case of the death of the president should be followed – that would be the Speaker of the House.  

The panelists also addressed the accuracy of counting the vote. 

“We will never know who won the popular vote,” Choper said. “The media reports that the manufacturer of the vote counting machine said that there is a 10 percent error factor. We won’t have a totally accurate vote count. Not in Florida and not in the country.” 

Student Jeff Schwartz said that he doesn’t think we should ever move to abolish the electoral college. 

“I think it would be a really bad idea. It would mean that the president was elected by big cities. Regional issues would be ignored. It’s just not a good idea.” 

Choper ended by saying he thought that the winner would ultimately be decided through politics. 

“It’s politics and politics are going to decide it. All a lawyer can do is inform the court in the best way they can,” he said, concluding, “I don’t think it would be a bad idea to flip a coin.”