New York Times
November 10, 2000

Electoral College Vote Need Not Include Florida

by Adam Clymer

Dec. 18, the day that presidential electors are to meet in 50 state capitals and the District of Columbia, may produce a political crisis if Florida's 25 votes are still in dispute. But the crisis will not be constitutional, scholars say, for the Constitution enables a president to be chosen even if a big state like Florida does not vote.

Some commentators have suggested that the election would be thrown to the Republican-controlled House of Representatives if neither Vice President Al Gore nor Gov. George W. Bush of Texas gets a majority of the 538 electors for whom Americans voted on Tuesday.

But the Constitution requires only that a winning candidate have the votes of "a majority of the whole number of electors appointed." If Florida's votes are not resolved by then, or if a legal restraining order bars Gov. Jeb Bush from filing a certificate listing Florida's electors, then Mr. Gore has enough votes from other states, if current vote totals stand and if his electors keep their pledges, to reach a majority of the 513 electors actually appointed.

In either of those cases, or if either Mr. Gore or Mr. Bush gets Florida's votes, the House of Representatives would have no role in choosing a president, other than to participate in a Jan. 6 ceremonial counting of the votes in a joint session with the Senate.

The time gaps between actual voting, Electoral College meetings, Congressional certification of votes and an actual inauguration were dictated by bad roads in an era when it took President John Adams 17 days to get to the White House from Boston in 1800.

In fact the four months provided in the coach era were shortened in 1934, the railroad era, but only to 10 weeks. Inauguration Day was moved up from March 4 to Jan. 20 to reduce, though hardly eliminate, the lame- duck period in which an administration either ending voluntarily or rejected by voters continued in power.

In the nation's early decades, the results of a presidential election did not become known for three or four weeks. In the 20th century, the latest when the winner became known was at 11 a.m. on the day after Election Day in 1960. In 1916, however, Charles Evans Hughes went to sleep believing that he had won, and awoke to discover that he had lost California and the election.

The 21st century has beaten that record. Whatever the Florida count is when Mr. Gore and Mr. Bush go to bed tonight, both sides have made it clear that they are not finished.

But there are five weeks for the electors to be "appointed," or, to use an even more arcane term, for governors to issue Certificates of Ascertainment, advising the National Archives and both houses of Congress who was elected in their state.

Those documents, comparable to certificates of election that are issued to advise Congress of the election of its members, must be submitted by Dec. 18, the date set by federal law for the electors to meet.

Walter Dellinger, professor of law at Duke University, said the reason the Constitution requires the votes of only a majority of those electors actually appointed to elect a President was that in the earliest days of the Union a state might neglect to appoint electors, and there was no reason for the process to be held hostage by that omission.

The rules for electors and the role of the House were spelled out in the 12th Amendment, ratified in 1804. The House has a role only if the ceremonial counting presided over by the vice president shows that no one had a majority of the electoral vote. That could happen either because of a tie between two candidates or a split among three. The House would vote, with each state casting one ballot, for one of the three candidates with the most electoral votes.

That vote, however, would have to amount to a majority of all 50 states. So if 24 states backed one candidate, 21 backed another, and 9 did not vote because their members split, no one would be elected, and the House would keep on voting until someone won.

It is theoretically possible that by tying up the Florida situation in the courts, the Gore campaign could deny the state a voice in the electoral vote. But that would ensure a political backlash and infuriate a Republican Congress.

The only time actual vote counts threw an election in doubt was in 1876, when disputed counts in Florida, Louisiana and South Carolina led to party-line votes by a Republican Congress to elect Rutherford B. Hayes. Joel Silbey, professor of history at Cornell University, recalled that Democrats, sure that they had been cheated, threatened to riot outside the Capitol. But their candidate, Gov. Samuel Tilden of New York, insisted that they drop their protest at that point and Mr. Hayes was inaugurated.

Steve Hess, a presidential scholar who has written about President Nixon's decision not to challenge what many Republicans said was fraudulent voting in 1960 in Illinois and Texas, said the decision to forego such a challenge was statesmanlike and essential to Mr. Nixon's eventual election in 1968.

But he said he was getting phone calls from other countries all week asking if there was a constitutional crisis now. He said he told them that Mr. Gore "has an absolute obligation to play out the string, an obligation to his party and his voters." But after the Florida count is completed next week with absentee ballots from abroad, he said, whoever is behind has an obligation to consider the consequences of delay for the country and for a new president who is already losing time from an orderly transition.

"We can wait for 10 days, for heaven's sake," he said.

And in any case, Professor Dellinger said, "the problem we have is a Florida problem." If the president were elected by a direct popular vote like all other federal officials, he said, a national recount would be required in an election this close. "This is less of a problem than we would have had if we had a nationwide recount," he said. "At least we know the problem is isolated in

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