WASHINGTON — If Al Gore takes Oregon and New Mexico’s electoral votes, which appears possible, then he would have 267 electoral votes to George W. Bush’s 246.
And if Florida does not appoint its 25 electors, then a candidate would need only 257 votes to win, because neither the Constitution (Article II, Sec. 1 & Amends. XII & XX) nor the applicable statute (U.S.C. Title 3, Ch. 1) says that a majority of all possible electoral votes is necessary to elect a president.
The Constitution says that whoever gets the “majority of the whole number of electors appointed” wins. The statute on the vote-counting process contains elaborate provisions for settling disputes over competing slates of electors or over the legitimacy of challenged votes, but it does not say that a state must have countable electoral votes.
The language of the law contemplates that a situation could arise in which both houses of Congress agree that a state’s votes are illegitimate and should be thrown out and replaced with nothing. Indeed, in 1864, 11 states failed to send electoral votes, and the election was held without them.
So what happens if Gore loses in Florida and challenges the result in court, with a view toward preventing Florida from casting any electoral votes? And what if no judicial decision has been rendered by January?
Under the statute, both houses of Congress assemble on Jan. 6. The certificates and papers from each state are opened in alphabetical order (“beginning with the letter A,” says the law — Congress can speak clearly when it wants to). As the certificates from each state are read, the president of the U.S. Senate (named Al Gore) calls for objections.
If any are made, then the houses separate and resolve them before continuing on to the next state. If no proper objections are registered, the tally continues. The law makes no provision for an objection if there is no paper from a state that purports to be a certificate of electoral votes.
So the tally might simply skip Florida and move on. The final total of 267 to 246 would be announced and Gore would declare himself the winner. When the tally skipped Florida (or at the end, or in both instances) then surely all hell would break loose on the floor. The proceedings might be suspended and legal decision sought.
But the decision would appear to be legally correct. In any event, even if it is dubious, suppose the president of the Senate (Gore) ruled objections out of order, since there was no certificate from Florida before the body and the statute provides only for objections to certificates and papers?
Then he could continue and certify the count over the objections of the dissenting members. And declare the winner: Al Gore. Arguably, by the way, the statute also says that this announcement is conclusive, not subject to judicial review.
It is difficult to imagine the Republicans playing out this scenario, and several responses would be available. The governor of Florida, looking into this abyss, might certify electors regardless of the state of play in the courts.
Under the federal law, this certification would be final unless overturned by both houses of Congress. Of course, Florida Gov. Jeb Bush might decline, given the uproar this would cause. If Jeb Bush recused himself, a Democratic secretary of state could certify Al Gore.
The U.S. House might reject this effort, but what happens if the Senate is tied, 50-50, and ties are broken by the vote of its president, Vice President Al Gore? Then the certification would stand. Or a state official other than Jeb might certify George W. Bush rather than Gore.
This would be upheld in the House (the Senate is not needed to uphold, only to reject). But the uproar would ring for centuries.
So imagine Florida is indeed paralyzed and no certificate is issued by anyone. Then the Republicans could play tit-for-tat. If Gore stalls Florida’s vote, Republicans could move to knock out states that gave the edge to Gore.
Even a Republican governor might be reluctant to go along with a ploy that denigrated the legitimacy of his state’s procedures, but the situation is unusual. The Democrats would counter, of course, and the race would be on. A final response to a failure of certification by Florida would be a quick new law resolving the situation. Fat chance.
And if the situation is not resolved by Jan. 20, then meet President Dennis Hastert, who takes office if neither a president nor a vice president is selected.
At that point, of course, new laws become possible. There are other possibilities, including actions by the Florida Legislature, competing slates of electors, faithless electors, further complexities in the federal review process and so on. But surely there is no point in continuing.
All this must be only a nightmare — it’s inconceivable that either of our major parties would even think about bringing this on the nation. Surely both will agree to abide by the Florida recount, and will reject the option of a broad challenge that ties things up in the courts past the vote counting on Jan. 6.