In theory, perhaps. In the real world a legislative fiat would be challenged in court, where Al Gore’s lawyers would insist the state has until Dec. 18, when the votes are cast, to pick electors. (Not so, says Michael Glennon, an electoral expert at the University of California, Davis; he says it’s clear that the legislature can step in any time after Election Day.) But there’s no precedent for any of this, and that’s the point. Not since Congress reformed the electoral system in 1887 has the vote hinged for weeks on a single state, which means that a lot of scenarios that once seemed about as likely as an alien’s landing are now under scrutiny. Even if Florida certifies a winner this week, we could soon be watching for “faithless electors,” or dueling electors, or electors rejected by Congress. No one really knows where our long National Civics Lesson will end–or when.
A resolution in Florida could lead to even more drama. If Bush is ultimately certified as the winner, he’ll win the Electoral College by a mere four votes. But that’s assuming that all the GOP electors who cast their ballots on Dec. 18 actually vote for Bush. So-called faithless electors–people who are pledged to a candidate but then change their minds–are rare, but not unheard of. About half the states punish an elector who doesn’t honor his state’s popular vote, but even then, that often amounts to a modest fine. Bob Beckel, a longtime Democratic strategist, has been plotting to win over GOP electors by circulating a “statistical analysis” to appeal to their conscience; its conclusion is that Gore won the popular vote and should have won Florida. Beckel insists he won’t pressure electors to switch, and he says he doesn’t have the campaign’s blessing. The chances for success are remote, he concedes. “But you know, who woulda thunk we’d be here 14 days after the election?”
If Bush wins, it would take at least two renegade electors to force a tie in the Electoral College–and it wouldn’t end there. While they’re counting the votes on Jan. 6, members of the House and Senate could object to certain electors; then they’d vote on the objection. It happened in 1968, when members ultimately allowed a North Carolina elector pledged to Richard Nixon to vote instead for George Wallace. But the precedent there is murky: UC’s Glennon says Congress decided that the elector had never really been pledged to remain faithful under North Carolina law. Members left the question of what does constitute a pledge for another Congress–perhaps this one–to consider.
It may not take faithless electors, however, to throw Congress into the crisis. If the recount in Florida puts Gore back in the lead and the court rules in his favor, the state’s electors could be rejected by congressional Republicans. In that case, neither candidate would have the necessary 270 electoral votes, and the election would go to the House, where each state would cast a single vote. A deadlock there and in the Senate, which would pick the veep, would ultimately mean that the speaker of the House, Denny Hastert, could succeed to the presidency.
The slightly less improbable scenario is that Florida, plunged into deepening turmoil, is unable to certify any electors by the Dec. 18 vote. If that happened, Florida’s electors would be thrown out, and the required majority of electoral votes would drop to 257. Gore would win, assuming that the Florida Legislature didn’t step in first. Then again, in this election year, it’s probably safer not to assume anything.
