Electors Will Pick President,
Florida or No Florida
Tuesday, November 14, 2000
By Adrienne Mand
• More Election Stories and Video
If Florida's election results get mired in court challenges past this week, and neither Al Gore nor George W. Bush concedes defeat, various bizarre scenarios could determine the nation's next president.
Two possible outcomes would see either Speaker of the House Dennis Hastert, R-Ill., or Senate President Pro Tempore Strom Thurmond, R-S.C., as the new commander-in-chief. But those are both long shots.
In a more plausible situation, the Electoral College could simply vote on Dec. 18 without Florida, thus handing victory to Gore. Even that remains very unlikely, experts say, though there are no clear answers.
"We're all in unprecedented territory here," said Lawrence D. Longley, professor of government at Lawrence University in Appleton, Wis.
If Florida does not convene its slate of 25 electors on Dec. 18, the rest of the electoral college can proceed, with 257 electoral votes rather than 270 needed to win. Gore currently has 255 votes, and the state of New Mexico, with five electoral votes, is likely to go to him.
Matthew Hoffman, a litigator with the Washington, D.C., firm Shea & Gardner who has written about the Electoral College, said this most likely will not happen because it would disenfranchise all Florida voters.
But, he said, this election has the experts guessing along with the rest of America.
"The Constitution says that you have to have a majority of the electors appointed," he said. "It's not clear whether that means the number actually appointed, or the number that should have been appointed. I don't think anyone knows the answer."
He noted that the Dec. 12 deadline for deciding the slate of electors, as well as the Dec. 18 date, are crucial to upholding the fairness of the process.
"The framers really wanted to prevent any sort of collusion or intrigue among the electors," he said.
Michael White, director of legal affairs and policy at the Office of the Federal Register, also said this scenario would contradict the goal of the Electoral College itself.
"It seems to me that that's not a consequence that either the framers or federal lawmakers intended, because that would allow a state to manipulate the process," White said.
Florida could send both the Republican and Democratic slates of electors send their votes to Congress, where the legislators would figure it out.
This occurred in 1876, when Republican Rutherford B. Hayes, who lost the popular, and initially the electoral, vote, prevailed — by one electoral vote in a recount determined by a Congressional committee.
In an election this tight, there's always the possibility that some electors may change their votes for someone other than the candidates who carried their states.
They are legally allowed to do so by 24 states, and the 26 other states don't specify penalties for vote changes. There is no evidence of an elector's switched vote ever affecting the final decision.
Even this, too, would be a long shot, said Alex Keyssar, a Duke University professor and author of The Right to Vote: The Contested History of Democracy in the United States.
"We're talking about an era now in which electors are chosen for their party loyalty and are chosen by the parties, which is very different from what the designers of the electoral college had in mind," he said.
From here, the "what-ifs" become more bizarre. If the electors split their votes so Bush and Gore both have 269, the decision would go to the incoming Congress.
Each state House delegation would get one vote for president, while the Senate would decide on the vice president, who could potentially be from a different party than the president.
Furthermore if the Senate, which may end up being evenly split between Democrats and Republicans, became deadlocked, the current vice president — in this case, Al Gore — could cast the deciding vote.
"In most Senate votes, the vice president can break a tie," Keyssar said. "On the other hand, the wording in the Constitution says 'a majority of senators,' and Gore is [no longer] a senator."
In the event of a stalemate in the House, Speaker Hastert would assume the presidency under the law of succession. And, if for some reason the House Speaker were unable to assume the presidency at that time, the law of succession calls for the Speaker Pro Tempore of the Senate — 98-year-old Strom Thurmond — to become president.
In a book Longley co-authored questioning the usefulness of the electoral college, The Electoral College Primer 2000, the first chapter outlines an election "fantasy" where this actually occurs.
But he doesn't believe the scenarios will unwind to that point. "We have to wait and see what the vote tallies," Longley explains. "Obviously, patience is needed."
Hoffman said that whatever the outcome is, there will not be a crisis.
"When one person has 49.1 percent and the other has 49 percent, there's really very little moral imperative, particularly when half the people eligible to vote didn't vote in the first place," he said. "[This is] not going to be a serious blow to American democracy."
— Fox News' Paul Wagenseil contributed to this report |
