Today’s Electoral College Deadline Has ‘Wiggle Room,’ Experts Say

Tonight at midnight is the deadline established by federal law for the selection of electoral college delegates who will vote their choice for president on Monday.

But how can this be done with the last five weeks of protracted legal proceedings? In the opinion of several constitutional law experts, there is no practical way for Florida to meet that deadline unless it certifies electors pledged to Texas Gov. George W. Bush.

That is because the clock will run out even if the Supreme Court should lift its freeze on the hand-counting of votes across Florida, as urged by attorneys for Vice President Al Gore.

“I thought it would be difficult to meet the Dec. 12 deadline even after the Florida Supreme Court ordered hand counting last Friday,” said Daniel Lowenstein, a UCLA law professor who has written a textbook on election law.

“But now it seems impossible.”

Could the Supreme Court extend the deadline if it ordered a continuation of the count?

Some experts believe there would be nothing to stop the high court from ordering a recount to continue until Dec. 18, when electors from all the states meet, or even later. Until Congress meets on Jan. 6 to count electoral votes, courts might be able to order Florida officials, including Gov. Jeb Bush, to certify Gore as the winner of Florida’s 25 electors if he won the popular vote, some believe.

Lowenstein said that he doubts such an action by the Supreme Court could be challenged by anyone except Congress when it meets to accept the balloting. Today’s deadline, in fact, has never been tested in court.

There is considerable doubt about how firm that deadline really is.

Robert Hardaway, a University of Denver law professor and author of “The Electoral College and the Constitution,” said: “I see some wiggle room in the Dec. 12 date, but I don’t see any wiggle room in the Dec. 18 date.”

Although the Constitution itself does not set dates, a century-old federal law says that members of the electoral college must cast their votes on the first Monday after the second Wednesday in December. This year, that is Dec. 18.

The same law says that if a state has made a “final determination” of any electoral dispute six days earlier--today, Dec. 12, in this case--that determination “shall be conclusive.” In other words, Congress cannot challenge a slate selected by today. This is the “safe harbor” provision of election law that lawyers and judges have referred to in recent weeks.

David Kairys, a constitutional law professor at Temple University’s Beasley School of Law, blames the media for interpreting Dec. 12 as “an ironclad date.”

“That’s wrong,” Kairys said. “All it means is, if a state certifies its electors by that date, Congress is not allowed to question them.”

But federal law also says that, if a state has “failed to make a choice” of electors by Dec. 12, the legislature may appoint them. Thus, electors can be chosen--or even replaced--after today, according to legal authorities. Congress just doesn’t have to accept them.

Leaders of the GOP-controlled Florida Legislature, however, seem confident that their brethren in the Republican-controlled Congress next month would ratify any Bush electors that might be chosen.

In discussing so-called deadlines, some experts cite the case of Hawaii in 1960, when the state did not certify electors for John F. Kennedy until Dec. 28. The governor initially certified Richard Nixon as the winner, but a recount showed the state’s three electoral votes--not sufficient to affect the outcome--belonged to Kennedy. Congress accepted the Kennedy slate unanimously since Nixon had conceded.