It Seems Electoral Rules Were Made to Be Bent

The administrative procedures for installing the winner of a presidential election usually are carried out far from public view and are of little interest.

In this unusual presidential election, however, usually obscure procedures are drawing intense attention because of the opportunities they may present for a frustrated candidate or his partisans to keep a presidential bid alive.

These rules can be used lawfully to buy time, to obstruct an opponent and, in some circumstances, to install or unseat electors.

And while their use for such purposes is uncertain, “it’s not entirely fanciful . . . when you look at what’s happened just in the past week,” said Norman Ornstein, a congressional scholar at American Enterprise Institute, a conservative think tank here. The outcome of the election “could be challenged at many points along the way” between now and Jan. 6, when Congress conducts the official tally of the electoral vote.

The rules, for example, provide an opportunity for Vice President Al Gore’s sympathizers in southeast Florida to buy precious time to allow the hand recount of votes to continue.

Under the law, when the count is complete, Florida Secretary of State Katherine Harris is supposed to issue a final written statement “certifying” the results in a document that she sends to Florida Gov. Jeb Bush. The Republican camp has hoped that Harris will certify the state election results as soon as possible to deflate Democrats’ hopes and build public pressure for Gore to concede.

The rules also could be used by the Republican Florida Legislature to short-circuit the process and choose their own slate of electors to cast Florida’s 25 electoral votes.

Under federal law, states are required to choose a slate of electors by a specific date, in this case, Dec. 12. The law says that, if the election has failed to identify electors, they are to be chosen “on a subsequent day in such a manner as the Legislature may direct.”

If legal wrangling over the election outcome continues into December, the Legislature could use this law as the authority to name its own slate, Ornstein said.

Partisans also might use the rules during the electoral endgame in January, when the electoral votes are about to be counted.

The new Congress must be seated on Jan. 3. On Jan. 6, the new House and Senate are to meet in joint session to formally anoint the new president in a ceremony that will be presided over by Vice President Gore.

Under the procedures, the vote of each state is entered into the record and the vice president asks for any objections. The rules allow members to challenge the seating or qualifications of the electors in written statements, provided such challenges have the support of one member of the House and one member of the Senate. If the challengers can muster a majority vote of each chamber, they can deny a seat to a challenged elector.

Some analysts said they can foresee scenarios in which electors may be challenged. If, for example, a slate of Democratic electors was chosen for Florida based on a controversial recount, angry Republicans might attempt to mount such a challenge, arguing that the certification was unlawful.

Another possibility is that Congress might be confronted with two separate slates of electors. The courts might compel the Florida secretary of state to certify one slate of electors, based on a recount.

At the same time, the Florida Legislature, reacting to what it may regard as an attempt to steal the election, might send along a second slate, speculated Thomas E. Mann, a scholar at the nonpartisan, centrist Brookings Institution in Washington. “And at that point, it gets really interesting.”

And partisans also could use the rules governing the actions of electors to try to exert pressure on them to vote a certain way.

Nothing in federal law or the Constitution prohibits electors from voting according to their consciences. About half the states have laws requiring electors to vote as the popular vote in their states dictates, prescribing fines and other penalties if they don’t. However, the penalties have never been applied.

Some analysts believe that the campaigns might be able to successfully mount efforts to convince a few electors on the other side that, to avoid having an election “stolen,” they should change their vote.

And in this election, they noted, two or three votes could shift the outcome.

Changing an elector’s vote in this way is “not a very likely scenario,” Mann said. Yet “we’re not going to know that this is really all done until it’s done.”