Rivals Down to the Heavy Artillery

However bad it’s been, it’s about to get worse.

Any of the remaining options for George W. Bush and Al Gore after Sunday night’s certification of Bush as the winner in Florida promises even more polarization and acrimony than their battle already has generated.

In effect, both sides have exhausted all of their conventional weapons. Unless Gore concedes, all that is left are nuclear options: intervention by the U.S. Supreme Court, the Florida Legislature or the U.S. Congress for Bush; or another move by the Florida State Supreme Court to reopen the process for Gore.

Either way, the antagonism is likely to grow exponentially as the two parties unshoulder weapons that almost never have been deployed in presidential politics.

“I don’t see any pleasant ending to this at all,” said former state GOP chairman Tom Slade. “It is going to be hand-to-hand combat from here on in.”

Bush sought to preempt further challenges by emphatically declaring himself the victor in a speech in Austin, Texas. But few Republicans have much confidence that Gore will lay down his arms. Assuming Gore fights on, then almost all of the steps that could resolve the conflict are virtually unprecedented. No one has ever contested the result of a statewide election in Florida--as Gore aides indicate he is poised to do today.

The U.S. Supreme Court, which will hear Bush’s challenge Friday to the Florida recounts, has never ruled on a case that could determine the outcome of a presidential race, said Harvard law professor Heather Gerken, an expert on election law.

The Republican-controlled Florida Legislature is seriously considering appointing its own pro-Bush slate to the electoral college if the state courts authorize further recounts that give the lead to Gore; no state legislature apparently has ever taken such an action, said Columbia University historian Eric Foner.

And if such an action results in two sets of electors from Florida--a pro-Bush slate named by the state Legislature and a pro-Gore slate produced in the recount process authorized by the state courts--that would force Congress to choose between rival electors for the first time since the disputed election of 1876 between Rutherford B. Hayes and Samuel J. Tilden.

“If you think we’ve been in uncharted waters, I am becoming a believer in the Flat Earth Society: We’re actually about to fall off the edge,” said David Cardwell, the former Florida election commissioner.

To extend his metaphor, the waters ahead are not only uncharted but enormously turbulent.

Election Contest Is Gore’s Best Chance

With Bush declared the winner in Florida, Gore’s best remaining chance for victory is through the formal contest to the results that his campaign is planning to file as early as this morning.

In that process, Gore is planning to ask the courts to order a series of actions that could allow him to leapfrog past Bush, senior aides say. Key among them: Gore will seek the court appointment of special masters to complete the hand recount that Miami-Dade County abandoned last week and to review potentially thousands of ballots that the Palm Beach County canvassing board rejected as lacking clear evidence of voter intent.

Under Florida law, the contest procedure is handled entirely by state courts, with the final word belonging to the state Supreme Court. Republicans both here and around the country were incensed last week when the state high court--all of whose members were appointed by Democratic governors--overruled Republican Secretary of State Katherine Harris and allowed the recounts to continue until Sunday afternoon.

Perhaps the only broadly accepted ending to the process could come if the state courts give Gore the further recounts he is demanding and he still falls short.

But if the courts deny Gore further recounts, Democrats likely will believe he was robbed of votes that could have given him the state--and the presidency.

Conversely, if the state courts intervene again and give Gore a new breath of life by taking control of the recounts in Miami-Dade and Palm Beach counties, the Republican outrage is likely to be even greater.

State Legislature May Name Electors

Slade believes that if the state court grants Gore’s requests--and the U.S. Supreme Court doesn’t stop it--the Republican-controlled state Legislature is likely to respond by moving to name its own slate of electors.

Florida legislators took the first step toward that action last weekend by establishing a special committee to investigate the election results in the state; it will hold its first meeting Tuesday.

Key state lawmakers, led by GOP House Speaker Tom Feeney, Jeb Bush’s running mate in his unsuccessful 1994 gubernatorial campaign, argue that if the disputes over the election result aren’t resolved by Dec. 12, the Legislature may need to appoint electors to ensure that Florida can participate in the electoral college vote Dec. 18.

This route is pockmarked with land mines too. Analysts predict that Democrats--and perhaps many independents--likely would be outraged if a Republican-controlled state Legislature, headed by allies of the candidate’s brother, moved to grant Bush the state’s electoral votes even if Gore takes the lead in further recounts.

That “would have as its absolutely certain result the denial of legitimacy to whoever becomes president of the United States,” Sen. Bob Graham (D-Fla.) said Sunday.

Equally explosive is the possibility that the state Legislature would select one set of electors--presumably favoring Bush--and the process authorized by the state courts would produce another, possibly backing Gore. That circumstance, Slade worries, “would raise the conflict to a height we have never seen before in this nation.”

At that point, Congress would have to choose between the rival slates. In the bitter 1876 election, Republican-controlled election boards in Florida, South Carolina and Louisiana invalidated results from enough Democratic-leaning counties to tilt the states toward Hayes--and infuriated Democrats sent competing slates of pro-Tilden electors to Washington. Eventually, Congress sided with Hayes and he became president.

This time, Congress would resolve the dispute under rules that say that if even one legislator in both chambers objects to the Florida delegation, the full House and Senate will have to vote on which electors to seat, Gerken said.

The Republican-controlled House of Representatives presumably would select the slate favoring Bush; but if the Senate remains in a 50-50 tie (assuming Democrat Maria Cantwell holds her lead over Republican Slade Gorton during a recount in Washington state), Gore himself could cast the tie-breaking vote to reject the Republican slate in the Senate.

At that point, however, the Democrats would get caught in a legal Catch-22, Gerken said: If the two houses disagree over which electors to seat, the decision reverts to the governor of the state that sent them. And presumably Jeb Bush would select the electors that favor his brother.

If Jeb Bush must intervene to help give his brother the state, “his presidency would hardly be worth starting under those circumstances,” predicted Thomas E. Mann, a political scientist at the Brookings Institution, a nonpartisan think tank in Washington.

U.S. High Court Ruling May Hold Enough Sway

Looming over all these explosive options is the possibility of intervention by the U.S. Supreme Court. The court last week surprised many observers by agreeing to hear the Bush campaign’s challenge to the Florida Supreme Court decision authorizing the manual recounts.

Observers such as Mann and Gerken said that the Supreme Court may be the one institution with enough prestige to impose a widely accepted solution on the controversy. Yet it too is hardly immune from political second-guessing.

For years, a central thread in the court’s decisions has been a desire to limit what it sees as federal intrusion on state prerogatives.

If the U.S. Supreme Court--seven of whose members were appointed by Republican presidents--now overruled the state court, Democrats would likely be as outraged as Republicans were at the Florida Supreme Court ruling last week.

“It would be a big step for the court to reach out and second-guess the state Supreme Court on this issue,” Gerken said. “It would be enormously controversial in light of their prior stances.”

But not all that much more controversial than any of the other moves that remain on the table for Bush and Gore in an election that now seems long beyond happy endings.