The Scariest Part May Be Yet to Come

I once took a roller-coaster ride with one of my nephews. The most terrifying part was when, after barely hanging on through a series of nauseating loops and plummets, Michael turned to me and said, “Now here comes the really scary part.”

That same feeling returned this week as I watched events in Florida. While there is much talk of a final resolution as early as today, we could as easily be heading into a far more difficult period. In fact, we may look back fondly at the past month as a time of relative calm.

Eight years as understudy to President Clinton have taught Al Gore that he who hesitates in a presidential controversy is lost. Gore learned that it is possible to overcome controversy and even flourish--if you survive. For Gore, there remains one scenario where he, not Clinton, would be “the Comeback Kid” and secure the White House. This course, however, is not for the weak of stomach.

The endgame for Gore could well turn on Seminole and Martin counties. After all, the allegations about those counties involve the type of misconduct and possible fraud that Leon County Circuit Judge N. Sanders Sauls found so lacking in the Miami-Dade and Palm Beach counties contests. The key for Gore is to get a final ruling by the Dec. 12 deadline for states to appoint electors, before the Republican-controlled state Legislature has the most compelling claim to intervene. If that were to happen, there is likely to be a fast series of events that could push this controversy into a true crisis. The Florida Legislature is likely to intervene to prevent a Gore slate of electors from going to Washington. The Legislature could hold a special session in the coming week that delivers the state’s 25 electoral votes to George W. Bush.

The Gore camp likely would challenge that legislative action as unconstitutional and ask the U.S. Supreme Court to declare the Republican electors invalid. Gore lawyers already are circulating a letter from law professors in support of such a challenge, much like the letter of law professors that was submitted in opposition to Clinton’s impeachment. Notably, however, only 37 law professors signed the current letter, as opposed to the more than 400 signatures on Clinton’s.

Under this scenario, two sets of electors could then demand consideration on Jan. 5 when the box of electoral votes is opened and counted at a joint session of Congress. While this session ordinarily is purely ceremonial, members would be prepared to challenge the electoral votes and claim the right to determine the legitimate electors under their constitutional authority.

The U.S. Supreme Court and Congress then would be on a collision course. Congress could claim the right to render a political judgment on the legitimate electors. The court could claim the final authority as a matter of constitutional and statutory interpretation.

Gore lawyers believe that the state Legislature cannot reverse a decision of the Florida courts on the electors. Moreover, in its earlier remand of the Florida Supreme Court, the U.S. Supreme Court appeared to incorporate the Gore lawyers’ view that a federal law guarantees states that its electors will be counted if selected in the manner directed by state law. Since judicial review is part of the process in Florida, Gore argues that any electors established by judicial order are guaranteed “safe harbor,” or acceptance, in Congress.

For Gore, the mere controversy could be enough. If Congress refuses to accept the Gore electors, he could argue that the two sets of electors disqualify any Florida votes from being considered and thus he would need only the majority of the remaining electors, excluding Florida. In that case, Gore could win the White House.

Republicans always have believed that they could control any endgame because of their slim majority in Congress. At the end of this process, Congress has to accept and count the electoral votes. The problem for the Republicans is that both houses have to vote to disqualify any electoral votes. While the Republicans control the House of Representatives, the Senate will by then be divided 50-50. Vice President Gore, as Senate president, would not even have to break a tie because a tie is insufficient to disqualify votes.

Unless both houses agree with a challenge to disqualify electoral votes, the votes are counted. If two sets of electors are presented, however, and neither party can muster a majority to disqualify one set, yet another federal appeal would be inevitable. In such a case, Republicans are likely to argue that the presidency should be decided, as the U.S. Constitution specifies, by a vote of state delegations in the House--a certain victory for Bush.

Of course, we could see a continued series of judicial losses for Gore this week, with Gore conceding early next week. But if any one of these contests yields Gore a modest win, we could ultimately face the judicial and legislative branches of government in a confrontation over the selection of the head of the executive branch.

By any measure, that would be a serious crisis. In both constitutional cases and roller coasters, the most frightening part is often the finish that you do not expect.