- The Washington Times - Monday, November 1, 2004

By now, most Americans are braced for the possibility that by tomorrow morning we still may not know who our next president is. There is a real chance that registration or recount challenges will be mounted in one or more hotly contested states if the votes are close. Both parties have prepared multiple-state contingency plans should things come down to the wire. We could end up with several contests of shorter duration than Florida in 2000 but equivalent in terms of importance and acrimony. The Democrats have said publicly they’re prepared to do battle in five states simultaneously, and Republicans vow they’re ready to counter them. Tomorrow, we’ll know for certain.

There are many variables at work that could yield a temporary no-decision. For one, polls show that the spreads in 8 states are still smaller than the margin of error. A computer analysis by The Washington Post found no fewer than 33 combinations in which 11 states in contention 2 weeks ago could yield a 269-269 tie in electoral votes.

The law is clear on what happens with an electoral vote tie: The 12th Amendment stipulates that the House of Representatives chooses the president by delegation in cases where neither candidate receives 270 electoral votes. That would likely yield a Bush victory. But a legal challenge to any states’ count could delay such a move or prevent it altogether by causing a reversal of a given state vote tally.

There are other complications, too. For example, in Colorado, a ballot initiative asks voters whether the state should join two others (Nebraska and Maine) that split the electoral vote by formulae other than winner-take-all. Polling data suggests the initiative is unlikely to pass. But if it does, assuming the Bush victory margin of around 5 percent predicted by polls, three or four of Colorado’s nine electoral votes go to whomever loses the state. If the measure had been in place in 2000, the state’s votes would have made the national electoral-vote total inconclusive even after Florida was tallied for George W. Bush — the vote would have been 269-268 in favor of Al Gore. That would have sent the decision to the House. But in such a case, it is anyone’s guess as to whether challenges to vote tallies outside Florida would have arisen given the razor-thin margin of defeat. And that might have prolonged the 2000 electoral circus even longer.

The good news is that the chances of either candidate winning the popular vote but losing the electoral vote for a second election in a row are slim. For all practical purposes, a candidate would need to win the popular vote by less than 1 percent — as happened in 2000 — for the electoral-vote tally to differ from the popular vote.

We concur with Walter Berns of the American Enterprise Institute when he said last week, as quoted in The Washington Post, “Let us hope for a wide victory by one of the two; the alternative is too awful to contemplate.” Awful indeed.

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