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COURTSIDE with Roger Cossack

What if the electoral votes are different from the popular vote?

CNN Legal Analyst Roger Cossack takes a look at legal issues in the news

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(CNN) -- What if, after all this politicking, neither candidate received 270 electoral votes? Or what if some electorates --as those folks who attend the Electoral College are called -- changed their mind and didn't vote for whom they were supposed to?

The answer is that if neither candidate gets the required number of electoral votes, the House of Representatives would choose the president, and the Senate would choose the vice president. A candidate would need 26 states to become the president.

The reason we have an Electoral College is that the founding fathers thought there would be several candidates for president and that the Electoral College would narrow the field to two or three. Then the House would make the decision. But the party system made the Electoral College a rubber stamp and the process simply didn't work out the way the founding fathers thought it would.

Now, if we lawyers are good for anything, we are good for figuring out things that should never happen but inevitably do. For example, what happens if the House split 25 states to 25 states? Well, it's not clear. It looks like the presidency would stand vacant after noon on January 20. The Constitution says the vice-president should take over. But who would be the vice president?

The 12th Amendment to the Constitution says the Senate should choose between the candidates, with the winner needing a simple majority of 51 votes. But lets suppose the Democrats win every tight Senate race and the split is 50 Republicans and 50 Democrats. Guess who casts the deciding vote in the Senate if there is a tie: incumbent Vice President Al Gore. Does he vote for himself, or perhaps for his running mate, Sen. Joseph Lieberman?

Akil Amar, a constitutional scholar at Yale Law School, argues that the notion that the sitting vice-president would cast the deciding vote is far from clear. He claims the 12th Amendment requires an absolute majority vote of Senators and that technically Gore is not a senator. Then he says that federal succession laws may make the Speaker of the House Dennis Hastert, R-Illinois, the president. The same would happen if the Democrats take the House, only this time House Minority Leader Dick Gephardt, D-Missouri, would get the top job.

I think you get the point. There are enough scenarios and enough possibilities that everyone I know except Greta Van Susteren could end up as our president.

So what should we do about this, if anything? Professor Amar says that we should have direct voting for the president and vice-president. He argues that the Electoral College, while quaint, is archaic in practice and deters from the democratic notion of one person-one vote.

Basically, he argues that the reasons for the Electoral College are no longer valid and this country should never have to deal with a result that gives the popular vote to one candidate and the electoral vote to another.

The contrary argument is that one-person-one vote for the presidency would encourage regionalism, that candidates would pander to those areas with the greatest population centers and that rural areas would be overlooked.

There is a third view however, and that would be to follow the procedure adopted by Maine and Nebraska, where they don't award their electoral votes on a winner-take-all basis. In these two states, electoral votes are awarded to the winner in each congressional district, with two bonus votes going to the statewide winner.

The obvious advantage here is that it comes as close to true grass roots representation as possible. Each separate congressional district would be represented and while carrying the state is important, it does not necessarily mean a heavy one-sided proportion of the electoral votes.

Of course, if you believe we should change the way we elect our president, and you really want to do something about it, you have a major problem to solve. The Electoral College will be with us until the Constitution is amended...and that is almost impossible to do. So, unless we have a dead heat, or one candidate gets a majority of votes and the other gets the majority from the Electoral College, look for this column four years from now. I think it may be an evergreen.


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