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U.S. presidential election uncertainty still short of crisis

CHICAGO (Reuters) - In a country where neatly wrapped food appears in seconds at drive-up windows and newscasts finish with smiles and tidy endings, an unresolved presidential election is a cultural shock and messy politics -- but not yet, in the view of some experts -- a legal crisis.

There is, however, doubt about how long it can remain that way, with Vice President Al Gore's Democratic backers threatening a court fight in Florida and Texas Gov. George Bush's camp claiming it is time to recognize the Republican candidate as the inevitable winner of a razor-thin vote count.

"I'm very concerned about words like 'crisis.' I think we have an election issue that needs to be resolved," said James Blumstein, a law professor at Vanderbilt University in Nashville who once numbered Gore among his students.

He and some others interviewed at random said the rhetoric needs to be toned down until Florida's absentee ballots are counted and a final tally from that state awards its decisive electoral votes to one candidate.

But, he said, if the courts get involved "in the absence of some element of fraud or chicanery" and change the outcome in Florida, then "crisis" might be the word to use.

"That would be most injudicious. Mistakes go on in all elections," he said. "That is not a basis for undoing an election result."

The ballot used in Palm Beach County where Democrats believe thousands of Gore voters might have spoiled their ballots accidentally is "equal opportunity confusing," Blumstein said. "Confusion is not a basis for undoing an election ... that would be a nightmare scenario."

Elizabeth Garrett, deputy dean of the University of Chicago Law School, does not see a crisis even if the matter remains unresolved until inauguration day in January.

"This is a great example of how the rule of law works in this country," she said. "We will proceed under the Constitution with respect to the electors ... if worse comes to worse and we don't have a (new) president on Jan. 20 laws provide for that. It's messy, its unprecedented, but it's proceeding."

She said the 20th amendment to the Constitution and a 1940 law provide that if no qualified president-elect is available on Inauguration Day in January the speaker of the House serves as president until a qualified president emerges.

If the spoiled ballots in Florida are somehow shown to be in noncompliance with the law, she said, then comes a tough question of how to revive them. But even that, she believes, could be addressed by innovative approaches such as making those who voted in that area sign sworn affidavits that they "intended" to vote for a particular candidate on Election Day, then using that to get a new total.

Steven Presser of Northwestern University Law School, however, believes that a crisis is already on the doorstep.

"Whether we've reached a Constitutional crisis is entirely up to Al Gore," he said. "My definition of a Constitutional crisis is when someone tries to get around the Constitution. We certainly had it during the impeachment crisis over President Clinton and it looks like Al Gore is borrowing a leaf from his book," he said.

"We have a pretty clear Constitutional directive to let the states handle their elections and then be bound by the those results. You don't make up spurious legalistic means of subverting the very clear directive ... the framers (of the Constitution) never intended that election results should be decided by judges."

President James Madison, he said, spoke of no need for government "if men were angels" but that not being the case "to try to find perfection is any institution is a recipe for disaster and endless litigation."

Yale Kamisar of the University of Michigan Law School adds:

"I don't think it's a legal crisis. I'm a life-long Democrat and I voted for Gore but I think recounts are one thing and absentee ballots are but when all is said and done in Florida if Bush is still ahead I think Gore ought to say 'OK'.

"There's no fraud in this case. No one complained (about the ballot) before the election. Most people got it right. Courts realize they should not be involved unless there was something absolutely outrageous. Recounting is one thing, going to court is another ... we have to end this thing."

Copyright 2000 Reuters. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.


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Friday, November 10, 2000


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