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Gore, Try to Remember

November 12, 2000|the Will of the People and DOUGLAS W. KMIEC | Douglas W. Kmiec is a professor of constitutional law at Pepperdine University and a former constitutional legal counsel to President Reagan

Al Gore and Bill Daley must stop inviting a constitutional crisis. They have announced that they do not intend to abide by the will of the people; rather, they are seeking to govern by the will of a Florida judge.

Vice President Gore had his opportunity to be a statesman. Contrary to popular belief, Florida law would not have required a recount if Gore had declined one.

It is not clear what will follow if Gore persists, but it is frightening enough to spin out some of the constitutionally unclear possibilities.

Assume Florida's recount is extended for months, as litigation over ballot design and other forms of overstated "disenfranchisement" continue. With the Florida electoral vote tied up in the courts, mid-December arrives, and Florida is unable to transfer its electoral votes to the Congress, as required by federal statute.

What then? If neither candidate has received a majority of electoral votes--270--selecting between Gore and Bush is commonly thought to be handed off to the House under the 12th Amendment. But will it be that simple?

The 12th Amendment reads that "the majority" referred to is "a majority of the whole number of electors appointed." Are Florida's electors "appointed" if their own election has not been certified? If not, it is hardly facetious to argue that the number of possible electors is 538 minus 25, or 513, which means only 257 electors would be needed to win.

On Friday, without Florida, the tally was Bush, 246; Gore, 255, which would have made the election hinge on two slow-reporting states. Gore was leading in these states. So why wouldn't he want to stall by litigation and, in essence, disqualify Florida by delay? Thus, in the name of litigating to prevent disenfranchisement of a handful of confused Palm Beach County voters, Gore could disenfranchise the entire state. Way to go, Al.

Of course, if Bush ultimately retains a popular majority in Florida, he would understandably expect to be president. But why should the litigious Gore let it go at that?

At this point, the constitutional drama likely would entangle not just the state court but the federal court as well. It is a federal question whether Florida electors who are certified late because of a delay over litigation have been properly appointed to the electoral college. This is an issue that could go all the way to the U.S. Supreme Court.

Getting the Supreme Court involved would surely push us way past Jan. 20. With no president by Inauguration Day, the Constitution might be read as sending us back to the House to find one.

But what if the House can't choose--hardly an inconceivable proposition, since voting in the House is done by state delegations, and multiple delegations--Connecticut, Illinois and Maryland, for example--are deadlocked by party affiliation. (Ironically, Bush's Texas delegation has more Democrats, and Gore's Tennessee delegation more Republicans.)

If neither Bush nor Gore received an affirmative nod from 26 out of the 50 state delegations, the Constitution provides that the vice president-elect shall serve as acting president. But, without a president-elect, do we even have a vice president-elect? The 12th Amendment says to select a new vice president from between Dick Cheney or Joseph I. Lieberman in a case where neither had received a "majority of the electors appointed." But if we still do not know what that phrase means, Rep. J. Dennis Hastert (R-Ill.), the speaker of the House, becomes acting president under federal statute. To further confuse things, some constitutional scholars claim that the succession statute itself is unconstitutional since it would appoint a legislative officer to an executive position.

So there you have it: Bush will claim to be president if he ultimately prevails in the Florida vote count and the state courts toss out the voter-confusion lawsuits. By contrast, Gore will claim to be president if the Florida litigation drags on past the date to certify electors, and his existing totals are thereby asserted to be sufficient. And Acting-President Hastert's temp job is possibly unconstitutional. Whether the Supreme Court will be enticed to get into any of this is anybody's guess, but it gives new meaning to the proposition that the court is an important issue in the election.

Vice President Gore, stop this nightmare before it is too late. Agree to be bound by the Florida recount and the absentee ballots and, whatever you do, keep this decision out of the courts.

Yes, ours is a rule of law, but shame on anyone who doesn't understand that in matters of a presidential election, it is "we, the people" who govern.

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