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Congress studying Electoral College scenarios


WASHINGTON (CNN) -- As the legal battle over the presidential election unfolds in Florida, congressional aides in Washington are gearing up for possible challenges to certifying the electoral results.

Under the U.S. Constitution, Congress must certify the Electoral College results. It is scheduled to do so January 6, 2001.

Democrats and Republicans are both reviewing procedures for that process.

Lawmakers insist the preparations do not signal their intent to challenge the results of the presidential contest, but Congress has the authority to object to electoral votes. House Democrats claim that Republicans may do just that to propel Texas Gov. George W. Bush into the White House.

Congress appears to have a number of options to alter the makeup of the electors and therefore the total of electoral votes for each candidate.

Here are some scenarios to consider:

  • Congress could object to some electoral votes.

After separate meetings, a simple majority in both the House of Representatives and Senate could reject the electors from Florida or any other state. A House member and senator could also raise objections to individual electors, which could make it impossible for either candidate to accrue the required majority of 270 electoral votes.

Any of these moves could alter the totals enough to force the House of Representatives to choose the president, and the Senate to elect the vice president -- who could come from a different party.

  • Florida itself could pose special challenges. Depending on the outcome of the battle in that state, there could be two sets of electors -- one for Bush, certified by the secretary of state, and another ordered by the courts.

Congress would then have to choose which set to accept, and there is conflicting precedent.

In 1961, Hawaii's governor certified its electors for Republican Richard Nixon and sent them to Congress. After that certification, there was a recount of the Hawaii ballots which ultimately determined that Democrat John F. Kennedy was the victor. Hawaii's governor then sent a second list to Congress, which arrived the day the joint session was convening.

Ironically, Nixon was the sitting vice president -- as Al Gore is now -- and was presiding over the joint session as Senate president. Since Hawaii's electoral votes would not have put him over the top, Nixon ruled from the chair to accept his opponent's electors in order not to delay the proceedings. He said at the time, however, the decision should not establish a precedent of allowing the most recent electors to prevail.

In 1877, two sets of electors were sent from Florida to Congress. One had been certified by the governor, and the other had been sealed by the attorney general. As is the case today, the two men came from different political parties.

In that case, Congress passed a law establishing a commission of 15 people -- five from the Supreme Court, five from the House and five from the Senate -- to choose which set of electors to use. The members of the commission voted along party lines to select the Republican elector slate, and GOP candidate Rutherford B. Hayes became president.

With this in mind, Congress can either use the commission model or pass a law creating an entirely different method to decide which set of electors to accept. Some congressional aides speculate, however, that if two sets are sent -- one for Gore and one for Bush -- each house could vote on both, and the Republican electors for Bush would probably prevail because of the GOP majority in Congress.

  • Florida might send no electoral votes.

If the state's 25 electoral votes are never approved or they are still in question when Congress convenes, the question becomes whether the total electoral votes needed by the presidential victor will still be 270 or 257, which is the majority of the total without Florida.

There is precedent for both scenarios, but the thing to watch is whether Florida's electors are actually elected December 18.

The constitutional standard is that the winner receives the majority of the duly appointed electors, so if Florida is included, the pivotal number remains 270. But what happens if the electors are appointed in their state but are later rejected by Congress and neither candidate can get 270?

It could throw the election of the president into the House, and the Senate would appoint a vice president.

If Florida is not included and the standard remains a majority of electors, Gore might well be the victor because he currently leads in the Electoral College.

Finally, if any of the above scenarios cause the session to drag until noon January 20 -- when President Clinton leaves office -- the speaker of the House, Dennis Hastert, R-Illinois, must resign his post and be sworn in as an interim president.


Saturday, November 18, 2000



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