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Hurry Up and Wait
By Ken Rudin
Special to washingtonpost.com
Monday, November 20, 2000
Editorís Note: This weekís column marks the transformation of Ken Rudin, political prognosticator, campaign button collector and trivia expert, into Ken Rudin, constitutional scholar.
Question: If Florida fails to appoint its 25 electors because its votes are tied up in litigation, will it still take 270 electoral votes to win the presidency? Or can someone win with just half of the 513 votes that have been decided (in this case, 257)? Joe Feldman, Chicago, Ill.
As you know, the electors gather in their respective state capitals on Dec. 18. If Floridaís electors are for some reason unable to vote on that date, the state would have to forfeit its votes. (Or how about this scenario: Say both the Gore and Bush camps decide to name competing sets of electors. If that happened, the governor would be the arbiter of which electors would represent Florida. And the governor is Jeb Bush, brother of the Republican presidential nominee.)
But letís stay with your scenario. Assume Floridaís vote is not cast. The Constitution says that the person getting the greatest number of electors becomes president "if such number be a majority of the whole number of Electors appointed." Many constitutional scholars say that without Florida, only 513 electors will have been appointed, not 538; thus, a majority would be 257, not 270. If that were the case, then Gore would win the presidency. The Vice President currently has 267 electoral votes (including Oregon and New Mexico, where Gore leads but has not been officially certified). Bush has 246. Iím sure it has not been lost on either camp that delaying a result in Florida could be one way of sending Gore to the White House.
But there could always be a ruling by Congress or the Courts stating that 270 is the magic number after all. If that happens, then the election goes to the House.
Question: How many states require their Electoral College members to vote according to the popular vote in their state? Is Florida one of them? Dorothy Arenz, Tempe, Ariz.
Answer: Twenty-six states have no requirement that electors must vote for their stateís presidential winner, including Florida. Though Floridaís electors take an oath that they will vote for the candidates of their party, there is no state law binding them to do so. Even with the states that do have laws that bind electors to voting for the winner, it is questionable whether they can be enforced. No "faithless" elector has ever been prosecuted.
Question: Assuming that Bush eventually wins Florida and Gore wins the rest of the outstanding states, then the Electoral College vote would be 271 for Bush to 267 for Gore. If only three electors switched from Bush to Gore, Gore would win. On how many occasions have members of the Electoral College switched their votes to another candidate for president? Michael Lee, Brisbane, Australia
Answer: I answered this question in my Oct. 6 column, but it has come up constantly in the past week and itís worth repeating. Of the more than 17,000 electors who have been chosen since the days of George Washington, only nine have been "faithless," seven of which came in the 20th century:
1948, when a Harry Truman elector in Tennessee voted instead for States
Rights Democrat Strom Thurmond;
Hereís one situation you didnít mention, but may be even more delicious: Letís say only two electors switch from Bush to Gore. Each candidate would then have 269 electoral votes. If that happened, the election would be thrown into the House.
Question: What if a president and vice president are not chosen by January 20? David Lalush, Chapel Hill, N.C.
Answer: Letís back up a step. The electors cast their ballots on Dec. 18. We should know the result that day. Officially, their vote is announced at a Joint Session of Congress on Jan. 6 at 1 p.m. (Ironically, it will be Vice President Gore, as president of the Senate, who will make the announcement.) If the Electoral College is unable to decide the winner, then the new House votes for president. Each state gets one vote, no matter how many congressmen there are in its delegation. Thus, Californiaís 52-member House delegation has the same say as Delawareís or North Dakotaís (delegation size: one member each). With 50 states and thus 50 votes, 26 votes are needed in the House to produce a winner.
Theoretically, this system would favor Bush. Republicans will control 28 House delegations in the 107th Congress to 18 for the Democrats; the Demsí total includes Vermont, where the one-member delegation is a Democratic-leaning independent. Four delegations (Connecticut, Illinois, Maryland, and Nevada) are split and if all their members of Congress stay loyal to their party, those states will not have a vote. But what if some members get nervous? Weíve already seen Rep. Connie Morella (R-Md.) announce that even though she is a Republican, she would be "obligated" to vote for Gore because her district went overwhelmingly for the vice president. It gets even dicier for members of Congress who are their statesí only representative. Take Delaware or North Dakota, two of the seven states that have only one congressman. Does Rep. Mike Castle (R-Del.) vote for Bush in the House even though his state went with Gore? Does Rep. Earl Pomeroy (D-N.D.) vote for Gore even though his state went with Bush? The questions are endless.
While the House votes for president, the Senate chooses the vice president, with each senator getting one vote. If for some reason the House cannot decide on a presidential winner by Jan. 20, then the new vice president (as selected by the Senate) becomes president.
Question: Is it possible that the Republican House could choose Bush for president, and a Democratic Senate could choose Joe Lieberman as V.P.? My daughter's history teacher is skeptical. Donna Levy, Wynnewood, Pa.
Answer: Send your daughterís teacher this column. The answer is yes.
Letís say (here comes another scenario) Democrat Maria Cantwell unseats Sen. Slade Gorton (R) in Washington state. That would leave the new Senate at 50-50. We all know that Al Gore (vice president until Jan. 20) can vote to break a tie, but the 12th Amendment says that "Senators" vote for vice president. Would Gore be considered a senator in the case of a tie vote? I donít think so, but who knows? Letís make it simpler. If Cantwell wins and had Chuck Robb won in Virginia, Democrats would have a 51-49 Senate majority. So in this setting, while the GOP House picks Bush, the Democratic Senate could pick Lieberman. And then if you take this one step further, Lieberman could become president if the House was unable to name the president.
Question: I know that Ralph Nader won't get federal matching funds because he didn't receive the necessary 5 percent of the overall vote. Does the Green Party get matching funds in the states where he did receive more than 5 percent? Rose Taylor, Nanakuli, Hawaii
Answer: This is the only Nader question to come in this week that didnít include expletives from angry Gore supporters who say the consumer advocate cost Gore the presidency. Nader won some 97,000 votes in Florida, and conventional wisdom says that he took most of them from Gore. Without Naderís candidacy, the argument goes, they would not still be fighting over who won the election.
In answer to your question, the Green Party would only have gotten federal funds for 2004 had Nader won 5 percent of the vote nationwide. But we may have spent too much time focusing on the money during this yearís campaign. The Reform Party presidential nominee was entitled to $12.6 million in federal funds because of Ross Perotís showing in 1996. This year, Pat Buchanan fought a grueling, divisive and ultimately successful battle with John Hagelin for the Reform Party nod this summer, ostensibly for the $12.6 million that came with it. But with all that money, Buchanan turned out to be a complete non-factor this year. He got some 443,000 votes nationwide, far less Nader, who received over 2.7 million votes without federal funds.
Post Script: As you can imagine, the mail over the past week has been the heaviest in the two-and-a-half years of this column, and that includes impeachment. The overwhelming majority have been the kind of questions found in this weekís column. Many others have been complaints about the system, or the mediaís role. And then there have been suggestions of what changes should be made. Iím running two of the more unconventional suggestions below.
From Valerie Knights, Leigh-on-Sea, Essex, England: "To help you sort out your election problems, I think we should give you the opportunity to come back and be ruled under the Crown for six months. We can then come over there and teach you how to have a successful election, help you to elect your new president then give you back your independence. Well, itís a thought."
From Ted Senator, Bethesda, Md.: "If our sons were in a baseball game as close as the election, someone would propose a 'do-over.' In the election, that's impossible, but perhaps someone can propose the solution that would be adopted in a parliamentary system a Government of National Unity. Such a deal would involve Bush and Gore's directing their electors to vote for Gore as president and Bush as vice president; Joe Lieberman would remain in the Senate and Dick Cheney could take his pick of Cabinet positions. Cabinet and judicial appointments (including the Supreme Court) would be divided equally. Gore would agree not to run for reelection, leaving Bush the clear favorite for a second term. Bush would be giving Gore the presidency in return for the experience he needs to be president and in recognition of Gore's winning the popular vote. The Senate would be equally divided, with Bush as the V.P. getting to break any ties. Bush would show that he really believes in bipartisanship and Gore that he is willing to forgo campaigning and fundraising for governing."
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