Either Way, Gore Facing Tough Choice

Vice President Al Gore is approaching an agonizing decision that could risk not only his future but his party’s: whether to mount a legal challenge to the Florida vote if the final count next week certifies George W. Bush as the winner in the state that will decide the next president.

Although Gore’s camp has spoken openly about pursuing litigation, aides made clear Friday that he has made no decision whether to join lawsuits filed by Florida residents challenging the ballot in Palm Beach County.

For Gore, despite apparently winning the popular vote, the choice could not be more excruciating. His campaign deeply believes that he trails in the state only because thousands of voters in Democratic-leaning Palm Beach County erroneously cast ballots for Reform Party candidate Pat Buchanan, or double-punched their ballot and were disqualified.

But if the campaign joins the lawsuits that Palm Beach residents have already filed to overturn the result, Gore risks appearing as though he is refusing to accept the voters’ will--an image that some Democrats are already grumbling could hurt the party in the 2002 election.

If Gore is committed to contesting the results at every stage, Democrats would have several more options for challenging Texas Gov. Bush--including, at the most unlikely extreme, lobbying individual members of the electoral college to switch their votes on Dec. 18 from Bush to Gore in the name of upholding the popular will.

The real issue is a question of political will: How far does Gore want to take the challenge? And how long will his party stand with him if it fears his efforts are alienating the public?

So far, Democrats have been supportive of Gore’s aggressive pursuit of a Florida recount. But a small, although growing, number are publicly expressing anxiety about pursuing the battle beyond that.

“For the sake of the country . . . there has to be some closure,” Leon E. Panetta, President Clinton’s former chief of staff, said Friday.

Democratic Sens. John B. Breaux (D-La.) and Robert Torricelli (D-N.J.) have offered similar advice--as have former Sens. Bill Bradley of New Jersey and Dale Bumpers of Arkansas and the editorial pages of the Washington Post and the New York Times, two papers ordinarily favorable to Democrats in their editorials.

But those around Gore say he is receiving private encouragement from other Democrats. One Democratic consultant close to the congressional leadership says that although there is some concern that an extended legal challenge could hurt the party in 2002--particularly if it fails--”all in all, I think Democrats would rather have a president than a good midterm election.”

In any case, Gore aides argue that the campaign’s opinion about how to proceed is less important than the desire of Palm Beach County voters to challenge a process they believe disenfranchised them.

“There’s nobody in a position to pull this plug; this is a process that goes on with or without us,” says Laura Quinn, the communications director at the Democratic National Committee and a close Gore advisor. “The equivalent of what people are asking from Gore right now is not a concession but a withdrawal. They are basically saying they want Al Gore to withdraw from the race before the race is concluded.”

The next step for the Gore campaign is clear: pressing for as exhaustive a recount as it can get in Florida. It has already urged four Democratic-leaning counties to recount ballots by hand; in theory, that could pick up ballots where voters did not punch the hole clearly enough to be read by a machine.

One Gore aide said that, in addition to potentially producing more votes for the vice president, the hand count could generate a critical piece of information. The Palm Beach County hand count, which will begin today, should give a sense of how many of the roughly 19,000 ballots disqualified for double-punching contained votes for both Gore and Buchanan, the aide said.

That information could be critical in the battle over public opinion. If a significant number of disqualified Palm Beach ballots contain votes for Gore and Buchanan, it could strengthen the vice president’s case that a fair count would give him enough votes to carry the state--and thus an electoral college majority. And that could make it politically easier for Gore to join litigation against the Palm Beach County ballot, aides believe.

But if Gore goes to court in Florida, Republicans made clear on Thursday and Friday that they would likely challenge the results in other states that the vice president narrowly carried--particularly Oregon, Iowa and Wisconsin. Democrats in New Hampshire, which was carried by Bush, have discussed the pursuit of a recount there.

The first break point for Gore could come by next Friday, when under state law, all absentee ballots must be received. Florida counties have another week--until Nov. 24--to certify those ballots, although given the magnitude of the stakes the counties are expected to act more quickly.

If he still trails after all those ballots are counted, that’s the point where Gore would decide whether to concede the election or join the ongoing legal challenges in Palm Beach County.

Some in Gore’s camp, like Quinn, argue that the vice president is in no position to stop local residents from suing if they believe their right to vote has been violated. But some other advisors say that if Gore publicly conceded the race after the initial Florida count is complete, most judges would probably dismiss the litigation as moot.

Legal scholars say that is probably, although not certainly, right.

“My hunch is that you cannot force a reluctant candidate to continue his campaign and his quest for elective office,” said former federal Appeals Court Judge William A. Norris, a Democrat now working as an appellate lawyer in Century City.

Pepperdine constitutional law professor Douglas Kmiec says that even if Gore conceded there would not be much he could do to stop lawsuits filed by others besides appealing to them to drop the suits.

From a purely legal point of view, the fact that Gore decides to concede would not invalidate the voter lawsuits, said Kmiec, who ran the office of Legal Counsel in the Department of Justice during the Reagan administration. But he added, “if Gore has conceded the election to Bush . . . it would be reasonable for a judge to say there is no available remedy and therefore dismiss the case.”

Depending on how far Democrats wanted to contest the results, the party could mount challenges even beyond the courtroom. One remote option would be to launch a public relations campaign to persuade individual electors to switch their vote from Bush to Gore when they gather Dec. 18 to formally cast their ballots for president.

If Gore holds his tenuous leads in Oregon and New Mexico, Bush would have only 271 electoral votes even if he wins Florida; that means Democrats would have to convert only three “faithless” Republican electors to give Gore a majority.

“Let’s say it becomes clear those [Palm Beach County] ballots are tainted and Gore should have won. Can you find three electors in the country who will say the right thing to do is to vote for the guy who won the election?” asked Democratic pollster Mark Mellman.

Other Democrats, however, have publicly recoiled from that idea--and in any case, it would be extremely difficult to find converts among the electors, most of whom are veteran party loyalists.

An even more distant, although still theoretical, possibility is that Gore could slip into the White House if Florida’s votes are not settled by the time the electoral college meets.

The issue is basically this: To win the electoral college, would Gore or Bush still have to have 270 votes or would he merely need a majority of the actual electoral votes cast when the electors meet. If Florida’s 25 votes aren’t counted, the electoral college would comprise just 513 votes, meaning either side could win with just 257.

The key passage in both Article II and the 12th Amendment to the Constitution reads as follows: “The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed.”

Kmiec and other legal experts said the meaning of the word “appointed” has never been ruled on by a court. However, he said that if the results in Florida are unresolved, then the most plausible argument would be that no electors from the state have been “appointed.”

Then what happens? Kmiec said that if Gore still has 267 electoral votes (assuming he holds New Mexico and Oregon), then the Gore forces might argue that the electoral vote should go forward. Consequently, he said, Gore could benefit by having the Florida situation tied up in court on Dec. 18, creating the possibility of an electoral vote with a lower base on Jan. 6, when the ballots are to be opened and counted in Congress.

On the other hand, this could create a gigantic problem if the Florida situation was resolved before Jan. 20, Inauguration Day, in Bush’s favor, which could trigger yet more litigation. If the situation is sufficiently muddied, scholars say, the election could be thrown into the House of Representatives, which would create a whole new series of legal questions.

Though all these disputes are fascinating for lawyers, most politicians still believe the dispute will be resolved long before it reaches that point--if only because such an exhaustive battle could be a Pyrrhic victory that undermines the presidency of whichever man survives it.