From the New York Times

December 2, 2000

Who Says the Election Has a Dec. 12 Deadline?

By STEPHEN GILLERS

Is time really running out for Al Gore? He has asked the Florida's courts to let the vote recount continue, and the process could take several weeks. But everyone keeps talking about a strict time limit in which everything must be resolved or else.

Is there a real deadline? Not at all.

Al Gore's battles in the Florida courts do not have to be resolved by Dec. 12, when governors are required to certify the winner of each state's electoral votes. Nor must they conclude by Dec. 18, when the state electors meet to cast their votes. Not even Jan. 20, Inauguration Day, is a deadline.

How can this be? Congress can pick someone to be acting president until the Florida courts resolve Mr. Gore's claims. It's right there in the 20th Amendment to the Constitution, passed in 1933. On Jan. 6, Congress is supposed to count the electoral votes and pick a president. But if, in the language of the amendment, it decides that no one has yet "qualified" for the job, it can pass a law "declaring who shall then act as President . . . until a President or Vice President shall have qualified." Surely, Bill Clinton would be willing to stay on for a few weeks.

The United States Supreme Court's ruling on George W. Bush's appeal of the Florida Supreme Court decision to extend the vote counting will not likely have a legal effect on Mr. Gore's other ongoing battles in the state courts. So these will continue, but they may take several more weeks to complete. They may even be incomplete when Congress counts the electoral votes on Jan. 6. Will Congress accept Florida's electors even while the court contests are in progress? It could, but it does not have to.

Federal law says that Congress is required to accept the certified Florida electoral votes, unless both the House and Senate agree that the votes have not been "regularly given." In other words, Congress can reject the votes if it has good reason to doubt their legality.

On Jan. 6, an evenly divided Senate will be controlled by Democrats, because Vice President Gore can still cast the deciding vote. The House will be controlled by Republicans. If the two chambers agree, no one need be designated president. Congress can pick an acting president that day.

To get a majority of the House to do so, five Republicans would have to vote with House Democrats. Why should they cooperate when continuing the vote recount could mean a victory for Mr. Gore?

First, arbitrary time constraints should not be allowed to interrupt the judicial process. Florida law permits Mr. Gore's court challenges. Indeed, in their hearing before the Florida Supreme Court, Mr. Bush's lawyers argued that these challenges were the proper way for Mr. Gore to contest the outcome. The state Supreme Court recognized the legitimacy of the Bush arguments by giving counties a short deadline for recounting votes — one that Miami-Dade and Palm Beach Counties could not meet.

Mr. Gore and the nation now have a legitimate interest in seeing these contests to conclusion.

Second, appointing an acting president would avoid the spectacle of putting Mr. Bush in the White House, and then finding out he lost the Florida vote. After all, the Florida litigation may continue after Mr. Bush is inaugurated. The unnecessary rush to judgment could give us a president who had failed to get a majority of either the popular or the electoral vote.

Third, and perhaps most important, House Republicans could remain the final arbiters of the fairness of a recount in the Florida vote. If the Senate and House disagreed on whether to accept any recount, the certification by Jeb Bush, the Florida governor, would stand.

In other words, the vote recount can be resolved according to law, and Republicans will still control the outcome.

So, the sense of urgency about resolving Florida's vote is misguided. We don't have to do this fast. We only have to do it right.

Stephen Gillers teaches at New York University School of Law.

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-- Anonymous, December 08, 2000

Answers

[Second, appointing an acting president would avoid the spectacle of putting Mr. Bush in the White House, and then finding out he lost the Florida vote.]

This attitude is becoming increasingly unrealistic. Almost surely, we well end up with more counts than we know what to do with. We already have FIVE different counts -- the original, the mandatory recount, the legislature's deadline recount, the Florida Supreme Court's deadline recount, and now the "sum of partial recounts" recount that includes every pregnant chad anyone has yet found for Gore anywhere, in direct violation of the "no partial recounts allowed" law.

Unfortunately for the FSC, ALL of these counts have Mr. Bush ahead, a condition clearly unacceptable to the majority of that court. So now we are to conduct a 6th count, this time of ballots containing NO vote for President, from which we will divine some number of "intended" votes for President by a laying on of the hands or some other procedure not specified by the FSC (which specified none -- they told us to JUST DO IT, but didn't tell us how).

If this process continues as Mr. Gillers proposes, there is no telling how many different counts we will ultimately end up with. So exactly what does he mean by Bush losing "the Florida vote"? WHICH vote?

One suspects that, if and when Mr. Gore should ever come up with a vote in his favor, the media will anoint him President without further ado, calling that count "fair". Even if it takes months.

-- Anonymous, December 08, 2000

Flint, I have been reading you for days. One question I have to this comment of yours:

"that includes every pregnant chad anyone has yet found for Gore anywhere"

Did George Bush not get any of the undervotes counted so far? Can you assure me that George Bush has not received one hanging chad vote? That no hanging Chads from Broward or Palm Beach went in the Bush column? You keep talking like only Gore is getting these votes.

-- Anonymous, December 09, 2000

The spin that Flint puts on this is beginning to sound just like the lies that spew from Rush Limbaugh's fat pie hole. What a biased idiot.

-- Anonymous, December 09, 2000

6th recount? Ah got any documentation Flint?

-- Anonymous, December 09, 2000

When was Miami-Dade fully hand counted Flint? I understand you are not going to answer me, but here it sits. Am I wrong?

Is this another of your "Bush won every county in Texas" gloss-overs?

-- Anonymous, December 09, 2000

FutureShock:

No, I think some "dimples for Bush" have indeed been counted. I notice that with each hand count, BOTH candidates end up with more votes than they started with (and more chad ends up littering the area). I suspect if they kept counting, we'd see more chad lying around and yet more votes for both candidates each time.

I also believe that the incidence of dimples is fairly likely to track the percentage of votes each candidate got in each county. We have seen that Gore tends to pick up more tham Bush in heavily Democratic counties, and vice versa.

There is the issue of whether, to be "fair", a manual count must include ALL votes in the state, NOT just undervotes (since a machine might make any kind of error), and NOT just where one candidate stands to gain disproportionately. There's also the little issue of whether a dimple is a vote, especially considering the big signs on the wall and stated directions that if you didn't punch a clean hole, your vote won't count. Do these signs mean anything, really?

Doc:

I gave the five counts explicitly on this thread. On another thread, I repeated each of these 5 counts, and GAVE THE DELTA in every case. I'm not making this stuff up, you know.

-- Anonymous, December 09, 2000

Course you are not making this up and I have seen your other explanations.

Maybe the better question is to define "recount".

-- Anonymous, December 09, 2000