Electors May Have the Last Word

By Charles Lane

When all the votes are counted in Florida and the fate of its 25 electoral votes is decided, the 2000 presidential election will finally be over.

Or maybe, just maybe, the politics will only be beginning.

The 538 members of the electoral college still have to cast their ballots on Dec. 18, and the new Congress, sitting in joint session on Jan. 6, will have to count them.

And while it is almost certain that the members of the electoral college will indeed, vote for the candidates to whom they have pledged support, it is not absolutely certain.

Only the thinnest legal barriers prevent a "faithless elector" from voting for someone other than the candidate who won the popular vote in his or her state.

And that fact suddenly takes on an intriguing relevance when you assume that, if Bush is declared the winner in Florida and ends up as the top popular vote-getter in states with a total of 271 electoral votes, it would only take a switch of votes by three "faithless" Bush electors to make Al Gore the president.

If just two electors broke ranks--either by voting for Gore or for someone else--then no candidate would have a majority and the election would be decided by the newly elected House, with each state casting a single vote.

To be sure, none of this delicious speculation matters if Gore wins Florida, because he would then have a comfortable margin in the electoral college to go with his narrow edge in the popular vote. And Bush could get a maximum of 278 votes if Oregon also breaks his way.

Also, it's hard to imagine why any Bush elector would want to betray the Texas governor's cause and set off political chaos. The parties generally choose their electors from the ranks of the party faithful, precisely to prevent anyone from becoming a "faithless elector."

In Florida, for example, state law prescribes that electors be chosen by the respective parties' state executive committees. But what if Bush held a 271-268 electoral college edge after the final Florida popular vote count--and one or more GOP electors, from Florida or elsewhere, felt pangs of conscience at the fact that Bush might win the presidency even though Gore got more popular votes?

There could be "someone in a state who really felt strongly this should be done by popular vote," said Arkansas's secretary of state, Sharon Priest (D), adding that she considered this a very long shot.

Or, in a truly close electoral vote contest like this year's, electors might realize they have the upper hand on the two parties--and one or more could conceivably exact a price of some kind in return for their votes. "It just seems to me that the temptation is there for that elector in a very tight race to really negotiate quite a bunch," then-Sen. Robert J. Dole testified in a 1977 hearing.

Twenty-six states have no legal prohibition against "faithless electors." Some 24 states and the District do have such laws, but these laws' enforceability is highly debatable.

Florida requires its electors to swear an oath of support to their party's candidate, but prescribes no penalty for those who might break the oath. Only five states do, according to Michael Glennon, an election-law specialist at the University of California at Davis.

There have been about a dozen examples of faithless electors in American history, some quite recent. In 1988, for example, an elector from West Virginia who had pledged to support Michael S. Dukakis for president voted instead for the Massachusetts governor's vice-presidential running mate, Lloyd Bentsen, and penciled in Dukakis for veep.

In 1968, an elector from North Carolina deserted Richard M. Nixon in favor of George Wallace. In 1976, a Washington elector cast his vote for Ronald Reagan instead of Gerald R. Ford.

Any state could attempt to unseat and replace a faithless elector who announced his intentions before the Dec. 18 vote. Otherwise, it would ultimately be up to the new Congress to deal with any faithless electors.

Under a federal statute passed in the wake of the 1876 political crisis, which resulted in a congressionally appointed commission's awarding Republican Rutherford B. Hayes a 185-184 victory in the electoral college over Democrat Samuel B. Tilden, members of Congress have the right to object to any electoral vote not "regularly given."

There is little precedent to give meaning to that formulation--but what little there is gives rise to intriguing possibilities.

In 1960, the new state of Hawaii sent the votes of two different sets of electors to Washington. One set, pledged to the Republican candidate, then-Vice President Nixon, had been certified to represent the state after a first popular-vote count showed Nixon the winner of the state by a mere 141 votes. The second after a recount gave the state to Kennedy by 115.

On Jan. 6, 1961, Nixon, presiding over a joint session of Congress in his capacity as president of the senate, recommended that the votes of the pro-Kennedy electors be counted without objection.

Nixon could afford to be magnanimous because Hawaii's votes would have made no difference in the ultimate result.

But would the presiding officer next Jan. 6 feel the same way? Given the uncertainty, including accusations of irregularities, surrounding Florida's vote count this time--and given the fact that its 25 votes are decisive, not superfluous--it is at least theoretically possible that some members of the new Congress might find a reason to object that the Sunshine State's electoral votes are not "regularly given."

Who knows? If Bush wins Florida, perhaps the objection could be raised by the man who holds the right to occupy one of Connecticut's seats in the next Senate--Joseph I. Lieberman.

And if it should come to that, all eyes will be on the president of the Senate, who, like Nixon before him, will wield the gavel as the electoral votes are tallied: Vice President Gore.

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