Lawrence Auster
Monday, Nov. 20, 2000

If the Court affirms Judge Terry Lewis' decision supporting Secretary of State Katherine Harris' authority to certify the Florida election results without reference to the manual recounts, then George W. Bush will be declared the winner in Florida and this (so far) short national nightmare will be over.

If, on the other hand, the Court finds that Secretary Harris cannot certify the Florida winner until the three Democratic-majority counties have completed their manual recounts, then we will have entered an abyss of political and legal warfare that could go on for weeks or months.

As in a previous column, I will present a road map of just a few of the myriad possibilities – ranging from the likely to the seemingly fanciful – that lie before us in the event that the Florida court stops Secretary Harris from certifying the election. (Since events are unfolding so rapidly, the underlying conditions for these scenarios are changing even as I write.)

Scenario 1 The Florida Supreme Court hears the arguments from both sides on Monday afternoon and promises a decision shortly, even as the manual recounts are allowed to proceed. Then, just as Janet Reno used to do with her infamous 90-day "thinking periods" before she would decide not to appoint a special counsel to investigate the Clinton adminstration, the Court lets days and weeks drag by without issuing a decision. Finally, the Electoral College votes without Florida's participation. Al Gore, receiving 267 out of a reduced total of 513 electoral votes, becomes president.

Scenario 2 Since it's unlikely under the Constitution that a state could be excluded from the Electoral College total, a more likely scenario would be that the Florida Supreme Court withholds its decision, even as reports of the manual recounts showing Gore taking the lead are steadily leaked out to the media, and public opinion slowly shifts to the idea that Gore is the "true" victor in Florida.

In effect, the next few weeks become an endless continuation of this past weekend, with the Florida Supreme Court maintaining a specious "status quo" that consists of prohibiting certification while permitting continued recounting. By the time the Court announces that the previously invalidated ballots in a handful of Democratic-majority counties must be included in the final state tally, the public has gotten so accustomed to the idea of Gore as the winner of the presidency that there's no energy left to protest this result.

Scenario 3 As the crisis stretches out, the Florida legislature dusts off a little-known federal law which holds that if a state election fails to produce a slate of presidential electors in a timely fashion, "the electors may be appointed on a subsequent day in such a manner as the legislature of such state may direct." On this basis, the Republican-majority Florida legislature appoints the electors themselves, just as many state legislatures did in the late eighteenth and early nineteenth centuries. Bush becomes president.

Scenario 4 In yet another scenario favorable to Bush, Broward County in conducting its manual recount sticks to the traditional, commonsense rule that the chad must be at least partially detached from the ballot (i.e., it must be a hanging chad, not merely a dimpled or pregnant chad) to prove that the voting stylus actually perforated the ballot and that a vote was legally executed. The 1,000 such invalidated ballots in Broward that remain invalidated under this rule enable Bush to win the election.

Scenario 5 To prevent this from happening, the Gore team persuades the Broward election officials to make their chad standard conform to the much more liberal standard of Palm Beach County, where previously invalidated ballots that were only pushed or dented by the stylus, as well as those that were perforated or torn, are being validated. In other words, ballots in which the voter never completed the required act of penetrating the ballot with the stylus are counted as legal ballots, purely on the basis of the voter's constructive "intent."

(Note: Though I wrote the preceding sentences on Sunday afternoon, by Sunday evening this radical turnabout by Broward County had already occurred.) The additional 1,000 dimpled ballots that are re-validated on this basis give Gore the victory.

Scenario 6 Protesting this logical and constitutional outrage, the Republican-majority Florida legislature, in an uncanny echo of the election of 1876, certifies and sends the Bush electoral votes to the U.S. Congress, forcing Congress to decide for which candidate the electoral votes shall be counted.

However, the Republican majority in Congress is terrified of partisan warfare and are loath to repeat the experience of 1876, when a partisan Republican majority on a special commission made Rutherford B. Hayes the victor in an election that was never considered legitimate by the opposition.

Following a more cautious course than their nineteenth century predecessors, the Republicans of 2001 pick a five-person commission of strictly "non-partisan, moderate" Republicans: William Cohen, Warren Rudman, Olympia Snowe, Jim Jeffords, and Constance Morella.

After judiciously considering all the facts, this esteemed commission (which during its long deliberations receives continual kudos from the NewsHour for its nonpartisanship) certifies the Gore electors from Florida, and Gore is elected president.

Scenario 7 Alternatively, in the event that Bush wins the Florida election, Gore puts together a "Special Group" led by Bob Beckel, James Carville, Craig Livingstone, and Larry Flynt, whose job it is to find dirt on Bush electors and intimidate them into switching their votes to Gore. When the existence of this "Special Group" is revealed, the Bush campaign gets a federal injunction ordering the "Special Group" to discontinue its activities.

One week later, two of Bush's electors from states with Democratic governors are killed in automobile accidents. Each of those governors appoints a replacement elector pledged to vote for Gore. The switch of two votes ties the electoral vote at 269 each, sending the election into the House of Representatives.

Because of vote switching of a small number of members in closely divided state delegations, a 25-to-25 tie prevents the election of a president. This impasse lasts from January 6 when the new Congress convenes to January 19, the day before the constitutionally mandated inauguration of the new president.

Scenario 8 Since neither presidential candidate has enough votes to win in the Electoral College, the same is naturally true of the vice presidential candidates. Under the 12th Amendment to the Constitution, the Senate chooses Dick Cheney as vice president. Given the absence of an elected president, Vice President Cheney, under the Twentieth Amendment to the Constitution, becomes acting president.

Scenario 9 Riven by conflict and fear, the Senate is unable to decide on a vice president. With no president chosen by January 19, the House of Representatives announces at 2 p.m. that pursuant to a federal law passed pursuant to the Twentieth Amendment, the House Speaker, Dennis Hastert, will become acting president on noon of January 20.

Scenario 10 To forestall this outcome, at 11 p.m. on January 19, President Clinton resigns from the presidency, making Gore president. In his brief inaugural speech in the East Room, President Gore says that the "anger" and "hatred" of right-wing groups directed at himself and the Democratic Party has created a national crisis, making it necessary for him to take emergency powers. The suppression of right-wing hatred, Gore declares in his rich voice, must now become the "central organizing principle of our civilization."

Read the previous article, Our Long National Nightmare Is Just Beginning

Lawrence Auster can be reached at lawrence.auster@att.net