- The Washington Times - Thursday, November 9, 2000

Now that some of the election-night dust has settled, it seems virtually certain that the next U.S. president will be the candidate who is certified as receiving the most popular votes in Florida. That candidate will thus be entitled to all of Florida's 25 electoral votes, which would be sufficient to catapult either George W. Bush or Al Gore over a constitutionally mandated threshold that requires the winning candidate to capture a majority (270) of votes in the Electoral College.

If, as expected, the Florida recount confirms Mr. Bush's slight lead of about 1,700 votes, then it may happen that Mr. Bush will have achieved his Electoral College majority (at least 271 out of 538) despite the very real possibility that Mr. Gore may have received a greater number of total popular votes throughout the country. Mr. Gore now leads the national popular vote by about 200,000 votes.

Quandaries of this nature have occurred in the past, in 1876 and 1888, and each time they were resolved according to the rules in the U.S. Constitution. The Framers of the Constitution specifically rejected proposals for the president to be chosen directly by either the national legislature or the people. Instead, the Framers intentionally established the Electoral College system as an indirect method of election.

A state has as many votes in the Electoral College as it has senators and representatives in the U.S. Congress. In a winner-take-all formula, 48 of the 50 states and the District of Columbia Maine and Nebraska are the exceptions award all of their Electoral College votes to the candidate receiving the most popular votes in the state. If no candidate receives a majority of Electoral College votes, the election of the president reverts to the U.S. House of Representatives, where each state is given a single vote.

In both the 1876 and the 1888 presidential elections, the candidates who received the greatest number of popular votes Samuel Tilden and incumbent President Grover Cleveland, respectively failed to win a majority in the Electoral College. On the other hand, despite having failed to win the most popular votes, their opponents Rutherford B. Hayes and Benjamin Harrison, respectively each captured a majority of Electoral College votes. And in each case, Hayes and Harrison won the presidency. So, the possibility that Mr. Bush will have won an Electoral College majority without receiving more popular votes than Mr. Gore would in no way be a constitutionally unique achievement.

The question is: Will Mr. Gore and his campaign honor the electoral procedure established by the U.S. Constitution, the basic law of the land, if a fraud-free Florida recount establishes that Mr. Bush received most of the state's popular votes?

Now, as it happens, Mr. Gore has in the past expressed an inclination to interpret the Constitution flexibly. During the first presidential debate, for example, Mr. Gore declared, "[T]he Constitution ought to be interpreted as a document that grows with … our country and our history." In other words, the Constitution can mean whatever its interpreters want it to mean, irrespective of however explicit and specific its declarations may be.

Mr. Gore's flexible attitude toward the Constitution could be problematic. Fortunately for the resolution of the potential problem at hand, however, Mr. Gore recently declared, unambiguously and for the record, what his constitutional position would be in the event such a dilemma arose. In an Oct. 29 interview with Mr. Gore and his wife, Tipper, CNN correspondent Jonathan Karl asked Mr. Gore about "the real possibility that we could have a situation where one candidate wins the popular vote and another candidate becomes president because he's won [a majority of] the Electoral [College] vote." At the time, with Mr. Bush leading in many of the nationwide polls but with the races in many of the most populous states considered to be statistical dead heats, the conventional wisdom held that only Mr. Gore could conceivably win a majority of votes in the Electoral College while failing to win the most popular votes. Mr. Gore called such a prospect "an attenuated hypothetical." Acknowledging that "it actually has happened before in our history," Mr. Gore argued that it was "unlikely to happen" in 2000.

Pressed by Mr. Karl, however, Mr. Gore finally gave a direct answer: "We won't know until November 7th. But in all such cases, we are fortunate as a people to have a Constitution that resolves all doubt as to what would happen in that situation." Lest there be no doubt where he stood on such an important constitutional issue, Mr. Gore reiterated his position: "If it did happen, I think the Constitution would be respected, as it always is." In a statement yesterday, Mr. Gore described the current situation as "an extraordinary moment for our democracy," and he essentially confirmed his understanding of the Electoral College. His spokesman, Chris Lehane, later pledged that the Gore campaign would "respect the Constitution."

In the likely event that the Florida recount confirms Mr. Bush's majority in the Electoral College, Mr. Gore and his spokesman, given their recently enunciated unambiguous views, will be expected to respect the Constitution's unequivocal election rules.

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