Congress prepares for plot twists

If the Electoral College tally is ultimately disputed,lawmakers could have a say in who's president.

With the next president still unannounced, Congress is gearing up for what yet may be an important role in determining who will sit in the Oval Office.

For most of its history, Congress's counting of the electoral votes for president the first week of January has been as mundane as scrubbing floors.

But with the situation in Florida unsettled, lawmakers on Capitol Hill are now scrutinizing every aspect of their process - and even identifying points at which the Electoral College results could be challenged, if the outcome is not to the liking of Democrats or Republicans.

"If the Florida recount favors the vice president, there is a tremendous potential for a protracted legal battle," Rep. David Price (D) of North Carolina said yesterday at a Monitor breakfast with reporters.

That may be something of an understatement. The prospect that Al Gore could win Florida - and hence the election - has set off the equivalent of an arms race of the legal sort on Capitol Hill.

Early efforts to assess congressional rules and precedent signal that a smooth transition to the presidency is the most likely scenario. At the same time, historians say there are some gaps that could raise serious issues.

One point of conflict could be what to do if any electors do not cast their votes for the presidential candidate of their party. Some partisans have suggested that electors should switch their votes to support the man who wins the popular vote, rather than the one who won their state.

In 1969, a so-called faithless elector from North Carolina switched his vote from Richard Nixon to George Wallace. In the end, Congress allowed it to be counted. But it's not clear what precedent that set, experts say.

This occurrence is rare: Only 12 electors have cast "faithless" votes out of some 19,000 cast in presidential elections since 1788. Yet only 25 states require electors to pledge they will vote in accord with the election results in that state, and only five enforce it.

"It is entirely plausible that one or two electors could take the bull by the horns and do for the popular majority what the Electoral College will not, and switch sides," says Michael Glennon, a law professor at the University of California at Davis.

If Congress faces competing slates of electors from one state, the problem gets more challenging. As with faithless electors, current law provides that a majority of both the House and Senate can decide which slate to accept. When Hawaii submitted two slates of electors in 1960, the issue was not controversial. The second slate was the result of a recount that both parties viewed as legitimate, and it was quickly accepted.

But when the 1876 presidential vote produced long recounts in Florida, South Carolina, and Louisiana, Congress's electoral count bogged down over retaliatory challenges. Finally, Congress set up a commission that, after several months, awarded the election to Rutherford Hayes (R) hours before inauguration.

The Electoral Count Act of 1887 tried to preclude such a debacle by providing that the governor's certification in each state is the official one. Even so, Congress reserved the right to challenge electoral votes that are not "regularly given." Those two words, historians say, open a range of possibilities.

"If the Florida Legislature appoints electors of its own, Congress could be presented with two certificates from Florida - one signed by the governor and the other by the president of the state legislature. If that happened, someone would have to make a choice," says Senate historian Richard Baker.

If a state's electoral votes are rejected, it comes down to what constitutes a "majority of the whole number of electors appointed." There's nothing in current law that settles this issue - and the presidency could turn on it.

Democrats such as Sen. Patrick Leahy of Vermont say that if Florida's 25 electoral votes are excluded, the win would go to Mr. Gore, who would lead George W. Bush 267 to 246 in the electoral count.

But Republicans insist that a decision to exclude the electoral votes of a state does not change the 270 electoral votes now needed to elect a president. GOP leaders are saying that in such a case, the presidential election would be settled by a vote in the next House of Representatives. (In the next Congress, Republicans control a majority of state delegations - enough to elect Mr. Bush.)

"Our research suggests that a majority of electoral votes would still be 270," says a GOP leadership aide. "If we change that, it gives incentives to state legislatures controlled by the party whose candidate loses the state vote to delay certification of that state's electors. It creates a dangerous atmosphere."

Then there's the scenario by which the US Supreme Court enters the fray. "My research shows that there is no definitive precedent if Florida votes are excluded," says Representative Price. "That's an argument that the Supreme Court would then have to adjudicate."

Legislators on both sides insist that the dueling memos being faxed across Capitol Hill do not constitute a battle plan. "It would be the height of irresponsibility to wait until the last possible moment to do due-diligence," says Jonathan Barron, an aide to majority whip Tom DeLay.

(c) Copyright 2000. The Christian Science Publishing Society