- The Washington Times - Wednesday, November 15, 2000

The question of who will be president for the next four years, Texas Gov. George W. Bush or Vice President Al Gore, may depend upon the resolution of one constitutional issue: if Florida's 25 electoral votes are not certified by the time the electoral college is scheduled to vote in December, will the candidate with a "majority" of the remaining votes, currently Mr. Gore, be elected president? Despite arguments to the contrary, the answer to this question is a resounding no. It takes 270 electoral votes to be elected president by the Electoral College, and not one vote fewer will do. If Florida's 25 electoral votes are not cast when the Electoral College meets, then neither candidate will be elected, and the House of Representatives will choose the next president.

The Constitution is very clear on this point. Under the 12th amendment (adopted to address these issues in 1804), "[t]he Person having the greatest number of [electoral] votes for President, shall be the President, if such number be a majority of the whole number of electors appointed." That number is 270. This is because the number of "electors appointed" is determined through application of an automatic formula, set forth in Article II, 1, of the Constitution. Article II, 1, provides that "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress." This provision is mandatory and establishes the actual number of electors in the Electoral College. Currently, that number is 538 calculated by adding 435 (the membership of the House of Representatives), plus 100 (members of the Senate), and three electors from the District of Columbia pursuant to the 23rd Amendment. On election day, voters merely select the individuals pledged to one candidate or the other who will fill each of these offices.

Thus, "who" is "appointed" an elector is a matter of the election; "how many" are "appointed" is a matter the Constitution settles in Article II. This number cannot be affected by malicious tampering with an election, inadvertent incompetence, or Acts of God. It cannot change merely because one or more states fail to select individuals (for whatever reason) to fill the office of elector, any more than it would change if one or more of the individuals selected as an elector failed to vote on the appointed day. This is why a bare majority of the individual electors is not enough to elect as president either Mr. Gore or Mr. Bush.

The requirement of an absolute majority in the Electoral College is just one piece of a larger requirement that insists that our national chief executive be elected by an absolute majority of "electors" ideally, reflecting a national consensus in all cases. Thus, for example, where no candidate commands an absolute majority in the electoral college, the House of Representatives chooses the president. In such cases, again under the 12th Amendment, a candidate must receive an absolute majority not merely of the votes cast, but of all possible votes. On this point, the Constitution's language is crystal clear. The House selects a president voting by delegation meaning each state has one vote "and a majority of all the States shall be necessary to a choice." Thus, if the delegation of one or more states fails to vote, an absolute majority of the 50 potential votes, or a total of 26 votes, is still required to win the presidency.

Similarly, if no candidate for vice president receives at least 270 votes in the electoral college, then the Senate will choose a vice president. Here, the 12th Amendment provides that, as in the House, a vice president can be selected only if one candidate receives the votes of an absolute majority of senators: "the Senate shall choose the Vice-President … and a majority of the whole number shall be necessary to a choice." When the offices of president and vice president are at stake, an absolute majority of the electors, whether in the electoral college or in Congress, is necessary.

This interpretation of the Constitution is fully confirmed by federal statute and by past practice. Under the statute governing the electoral college's operations, Congress has specifically defined the number of electors in the electoral college. Following the Constitution's formula, this law provides that "[t]he number of electors shall be equal to the number of Senators and Representatives to which the several States are by law entitled." (3 U.S.C., iii). That number, again including the District of Columbia, is 538. That an absolute majority of this number is required for election also is supported by past practice. No president elected by the electoral college has ever commanded less than an absolute majority of electoral votes. Even during the Civil War, when the Southern States did not cast their electoral votes, Abraham Lincoln was re-elected in 1864 with 212 out of the 314 electoral votes available at that time a number determined by including all of the Union's States, North and South.

The bottom line is that, without Florida, neither Mr. Bush nor Mr. Gore has an absolute majority of the available electoral votes, 270. If Florida's votes are not cast when the electoral college votes, then the House of Representatives will select the next president.

Kyle McSlarrow is a former Chief Counsel to Senate Majority Leaders Robert Dole and Trent Lott. Lee Casey is a partner at Baker & Hostetler LLP in Washington, D.C.

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