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U.S.: Legal Challenge Could Disrupt Presidential Transition

  • Robert McMahon

The long, hard-fought political battle for the U.S. presidency by Democrat Al Gore and Republican George W. Bush is nearing an end, but a legal battle for the White House could just be beginning. Gore's campaign has raised concern over the way ballots were conducted in the southern state of Florida and is considering a legal challenge that could disrupt the transition of presidential power. Senior Correspondent Robert McMahon looks at the legal issues involved.

New York, 10 November 2000 (RFE/RL) -- There are signs the presidential campaign of Vice President Al Gore may mount a legal challenge to the election in the state of Florida to prove the state's voters on Tuesday chose Gore for president over George W. Bush.

Gore's advisers say confusion over the ballot used in some areas of the state almost certainly cost Gore the election in the state and in the national vote for president. Both Gore and Bush need Florida's 25 electoral votes to win the White House.

Gore's aides indicated yesterday (Thursday) that a court challenge was possible because of what they say are flaws on ballots that may have led Democratic voters to mistakenly choose another candidate.

The confusion took place in areas that are predominantly Democratic. In one area, the county of Palm Beach, about 19,000 ballots were disqualified because voters mistakenly selected two candidates for president. As of today (Friday), approximately 1,000 votes separated the two men statewide out of total of about 6 million votes cast. The winner of the vote, no matter how slim the margin, will receive all 25 electoral votes.

A special observer named by Al Gore, former Secretary of State Warren Christopher, told reporters Thursday about the Democrats' deep concern over problems at the polls in Palm Beach county.

"We've come to believe that there are serious and substantial irregularities resulting from the ballot used only in one county; that ballot was confusing and illegal, and arising out of this is the need for redress in order to make sure that the will of the people can be properly honored in this situation."

Gore's campaign chairman, William Daley, said it is likely that a large number of people in Palm Beach county went to the polls believing they were voting for Al Gore but were denied their free choice by improper ballots.

Republican Party officials stressed that the areas where ballots were under question were under the supervision of electoral officials from the Democratic Party.

They said voters should be aware that voting twice immediately disqualifies a ballot.

The chairman of Bush's campaign, Don Evans, criticized Gore campaign officials for what he said was "politicizing and distorting" the events surrounding the Florida vote.

"One of the options that they seem to be looking at is new elections. Our democratic process calls for a vote on Election Day. It does not call for us to continue voting until someone likes the outcome. This process requires a thoughtful, calm, serious, and transparent effort."

Some individuals in Florida have already filed legal challenges in state court -- with the support of Democrats -- claiming a poor ballot design in Palm Beach county led them to inadvertently mark their ballots for right-wing Reform Party candidate Pat Buchanan.

One of the specific claims by Democratic Party officials is that ballots in the county violated state guidelines by not listing Bush and Gore in numerical order.

This may be a violation of state law, says Samuel Issacharoff, a Columbia University law school professor and expert on election law. But he says the fact that tens of thousands of Gore supporters correctly cast ballots for him in the county despite the error may weaken this case.

Issacharoff says there are several kinds of legal challenges the Gore campaign could make in Florida. One is to claim that there were so many problems in Palm Beach county voting procedures that there is no way of knowing whether the will of the people was accurately reflected.

He said Gore's campaign, because of the confusion, could also claim there is no guarantee that the electors from the Electoral College for Florida can speak for the majority. He said the campaign could seek a court order preventing the designation of electors from the state of Florida when the College is due to meet in December. One possible outcome of that would be insufficient support for either candidate and, by law, the U.S. House of Representatives would have to decide the election.

He says any such claim would be unprecedented.

"These are all very far-fetched or far-flung legal scenarios, but the truth is that we haven't seen anything like this at least in 130 years."

However, Issacharoff's interpretation is not the only possible one. The 12th amendment of the U.S. Constitution states that the president is elected by "a majority of the whole number of electors appointed" -- and not an absolute majority of the 538 electors. If such a case were to prevail, Gore would be elected if he retained his current lead in the electoral college of 260 votes to 246.

A Bush victory in Florida would mean he would gain the presidency without winning the national popular vote, where Gore appears to be about 200,000 votes ahead. This has happened only three times in U.S. history, the last time in 1888 when Benjamin Harrison defeated Grover Cleveland.

If Gore decides there is reason to challenge the results, some experts say it could disrupt the presidential transition period. A professor at George Washington University law school, Jonathan Turley, writes in Thursday's Los Angeles Times that a Gore challenge could extend well beyond the inauguration date of January 20, 2001.

Turley writes that a remote but possible scenario would be that Bush wins the presidency by electoral vote but Gore gains the right to new elections in Florida. If Gore wins a new election, a federal court might then order the assembly of a new electoral college to ratify the new electoral balance.

Turley suggests another possible scenario: if no decision is reached by January 20, President Bill Clinton would have to resign and either the speaker of the House or the Senate president pro tem would become acting president. If the speaker could not take office, the job would go to 97-year-old Republican Senator Strom Thurmond of South Carolina.

But all such challenges would also be subject to appeals, creating a shadow over the presidency.

One last possibility is that Gore could waive his right to challenge the final vote count in Florida. In this case, there is a precedent. In the very close 1960 presidential race, Republican Richard Nixon waived his right to a challenge after losing to Democrat John F. Kennedy, even though there was a very questionable vote count in the key state of Illinois. Nixon said at the time that he did not want to make the country endure such a process.