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The Butterfly Flap That Led to Election Chaos

November 09, 2000|JONATHAN TURLEY | Jonathan Turley is a law professor at George Washington University Law School

The concept of a stalemate in a presidential election was legitimately viewed by most Americans as unthinkable until Tuesday night. Such an occurrence has long been only a mind-teaser for academics, a type of constitutional chaos theory in which a butterfly flaps its wings and causes an entire system to fail.

According to that chaos theory, a butterfly could beat its wings in the Amazon and, by disturbing the atmosphere, this minute action gradually could be magnified to the point that it causes a hurricane in the Atlantic. Constitutional law also has a chaos theory that was thought equally implausible. A state presidential election is held in which small localized violations of balloting occur with regard to a few hundred votes. The state then gives one of two candidates a slim majority of only a few hundred votes. Under the rules of the electoral college, the prevailing candidate then receives all the state's electoral votes.

Now, assume that the candidate is then elected by only one electoral vote, making the state's electoral votes essential to the final outcome. This is precisely the legal situation presented by Florida's cliffhanger election.

We now face a number of nightmare scenarios that would be triggered by a single event: a challenge by the loser of Florida's election. Assuming that the mandatory recount of the Florida ballots certifies George W. Bush to be the winner, Al Gore would be faced with perhaps the most difficult political decision of this century: whether to challenge the recount, as is done routinely in local and state elections.

For the Record
Los Angeles Times Monday November 13, 2000 Home Edition Metro Part B Page 7 Metro Desk 1 inches; 28 words Type of Material: Correction
Constitution--A proposal to repeal the electoral college would be the 28th Amendment to the Constitution. It was discussed incorrectly as the 27th Amendment in a Nov. 9 column by Jonathan Turley.

As the winner of the popular vote, the temptation to bring a standard court challenge may be irresistible for Gore. It is common for vote challenges to invalidate hundreds of votes on technicalities alone. In Florida, there are a host of potential challenges, including the allegation that thousands of votes were cast wrongly because of a defectively designed ballot. If Gore yields to this understandable temptation, a number of possible nightmare scenarios could occur.

Consider just two:

No. 1: Assume Gore challenges the election and a court finds that a sufficient number of ballots are invalid. Gore could move for a court to enjoin the electoral college from finalizing the outcome of the election on Dec. 18. This could prevent Bush's inauguration and potentially lead to a vacancy in the presidency. Under the 20th Amendment, President Clinton cannot continue in office beyond noon on Jan. 20, 2001. Under that same amendment and the Presidential Succession Act of 1947, either the House speaker or Senate president pro tem would then assume office as acting president. If the speaker could not take office, South Carolina Sen. Strom Thurmond (R-S.C) would then become our acting president.

No. 2: Assume Gore challenges the election and the challenge extends beyond the inauguration. After the inauguration and any appeals, a final order could be issued that invalidates the Florida results and calls for a new round of balloting for the state or an isolated area of the state. Now, assume that Gore then prevails. We then would face the prospect of a president who is challenged as illegitimate. The Constitution does not have a process to remove a president except through impeachment or disability. Neither applies in this case.

That would leave a federal court in the position of simply ordering the assemblage of a new electoral college to ratify the new electoral balance. Once ratified by the electoral college, the court might have to then order the removal of the sitting president and vice president and a new inauguration. All political appointees then would have to be removed.

Of course, all of these options would result in possible appeals and, even with a expedited process, there might not be a resolution for one or even two years.

The alternative is that Gore could simply waive his right to challenge the results of the final vote count in Florida. This was precisely the approach of Richard M. Nixon when he lost a highly questionable election to John F. Kennedy by a slim national margin. Gore, however, would then have to occupy himself with the real possibility that he was the legitimate president-elect. In such a case, one would hope that Gore would accept a lesser but worthy alternative office as the chairman of the Campaign for the 27th Amendment: the final repeal of the electoral college. Upon that subject, he could well secure the support of an overwhelming majority of Americans.

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