The first of the big hurdles, next Tuesday, may be impossible for Gore to clear. Under federal law, all election disputes are supposed to be settled by then, and each state’s electors are “deemed conclusive” on that day. Florida, of course, has already certified George W. Bush as the winner. Gore has only this week to somehow conduct and win a court-ordered recount before the deadline, then convince the Florida Supreme Court to order that Bush’s slate of electors be replaced with his. If Gore fails to get his recounts, he may have one other farfetched hope left to win Florida: Seminole County. This week a liberal Democratic judge there will decide whether local GOP officials tampered with thousands of mail-in ballot applications. If she rules that those ballots should be disqualified, and the decision is upheld on appeal, Gore could suddenly take the lead, and presumably carry the state. But that’s a pretty big if, and Gore has stayed away from the case.
It’s conceivable that the courts could give Gore more time by ordering Florida officials to hold off sending the slate to Washington until the battle is over, but don’t count on it. Even the Gore-friendly Florida Supremes hinted they wouldn’t likely support challenges after Dec. 12, in order to make sure Florida’s electors aren’t left out of the count.
Suppose Gore does manage to win a recount–or prevail in the Seminole scenario. Even then, the vice president might still lose. Florida’s Republican Secretary of State Katherine Harris could refuse to recognize Gore’s electors, putting up a GOP slate to counter Gore’s. When electors around the country meet on Dec. 18 to cast their votes, Florida would have two competing tallies. The state’s crucial 25 electoral votes would remain in the air, and the whole mess would wind up in Washington for the final showdown.
Here’s where things could get really weird. When the newly elected House and Senate convene on Jan. 5 to officially count the electoral votes, any number of endgames could play themselves out. If Florida winds up sending Congress two competing slates, federal law says that both the House and Senate would have to agree in order to accept either slate. But in January, the House will be under Republican control, and the Senate will be split 50-50, with still-Sen. Joe Lieberman eligible to cast a vote and Al Gore–still vice president –breaking the tie for the Democrats. If the votes go along party lines, the House and Senate won’t be able to agree on either slate. In that case, the law says, the Congress must take the electoral slate certified by the state’s executive–Florida Gov. Jeb Bush. That means Bush wins, right? Well, maybe. If Secretary of State Harris had defied the court order to certify Gore’s electors, choosing instead to stick with her original certification, then Bush would win. But if she had obeyed the court order and changed the certification to Gore, Jeb Bush would find himself in the surreal position of naming Al Gore president.
We’re not quite done yet. Gore could–and we’re in the realm of the truly absurd here–lose even if his slate is the only one sent to Congress. Federal law allows Congress to reject state-certified electors that aren’t “regularly given”–in other words, if they don’t think they’re legitimate. If Republicans can coax just one Senate Democrat to defect to the GOP side, Florida’s electors could be thrown out altogether, sparking an arcane constitutional succession battle that could wind up seeing House Speaker Dennis Hastert appointed president.
Now, the good news. On the third Saturday in January we will have a new, official and entirely legal president. And his name may even be Al or George.
