Electoral College:Final battle?

Posted: Monday, November 13, 2000

WASHINGTON -- Normally a rubber stamp, the Electoral College is getting a hard look as a possible battleground for the presidency if the postelection impasse drags on.

Already, a few Democrats are encouraging electors pledged to Republican George W. Bush to switch their votes to Al Gore when they meet in December. Other Democrats are disowning any such effort.

Scholars are of mixed minds about whether the college will hold to its modern tradition as a quiet validator of what the voters have done, or whether its electors will be treated essentially as a jury by forces still competing to make Bush and Gore president.

Usually, all the official processes after a presidential election are formalities. This time, something may have to give.

''It's a kettle of fish and in any one of the various scenarios, we are likely to break some constitutional china,'' said Jonathan Turley, a law professor and veteran constitutional litigator at George Washington University. ''The only question is: How extensive will the damage be.''

Gore appears to have won the popular vote last Tuesday; Bush seems to have won a majority of the only votes that are supposed to count -- the state-by-state electoral vote -- if his unofficial margin in Florida holds.

As few as three ''faithless electors'' defecting to Gore from Bush could give the election to the Democrat, when all 538 electors meet in state capitals Dec. 18. That's if Bush is awarded Florida despite legal challenges and if Gore pulls out a win in both Oregon and New Mexico, where he holds slim, unofficial leads.

In Wisconsin, where Gore edged Bush and a recount is possible, Democratic state Sen. Bob Jauch said electors should re-examine the will of the people in light of balloting problems, especially in Florida.

''If I were an elector in Florida, I would be duty-bound to the people, not the political result,'' he said.

Pennsylvania Democratic state Rep. T.J. Rooney issued a similar challenge: ''Do what's right for the country, and not what's right for a candidate,'' he said. Gore won Pennsylvania.

The Gore campaign was not publicly encouraging renegade electors. In Florida, a former state Democratic chairman brushed aside the idea.

''We wouldn't play that game,'' said Charles Whitehead. ''I've been an elector. You sign a pledge, and you give your word, and that's all you have in your life.''

Cindy Costa, a GOP elector from South Carolina, a state Bush won, said Democrats should forget about trying to convert Republicans.

''It's a real sham,'' she said. ''It's not going to happen. ... They couldn't change my vote.''

Each party put forward slates of electors in the states, filling the positions with loyalists who were pledged as a group to vote for their party's candidate if that candidate won in their state.

Electors in about half the states are bound by law to vote as they are pledged to do, although penalties for crossing over tend to be light or nonexistent. But in New Mexico, for instance, an elector switching his or her vote can be sentenced to 18 months in jail.

In other states (including Florida) and the District of Columbia, electors are bound only by custom to stick with their pledge. Electors have rarely strayed.

But it is conceivable that some will come under pressure to peel away from their candidate.

''It's something to think about,'' said Charles O. Jones, a University of Wisconsin political scientist, who nevertheless considers it a longshot.

''You have to bear in mind who these electors are. They're chosen by the party. ... They're not exactly persuadable under 99.9 percent of the circumstances. Now, maybe this is 'the 0.1.' But I doubt it.''

Jones said lobbying the electors would invite a ''public opinion disaster'' for a candidate.

''There has to be a point at which either Bush or Gore as the loser, whichever way it goes, has to start thinking about his political future. This could kill you forever.''

Turley, who considers straying more likely, said the college originally encouraged electors to exercise their own discretion. Although many people would consider lobbying unethical, he said, Americans as a whole don't seem to care enough about the institution to object if it is politicized.

Another possibility, some scholars say, is that the college could disregard Florida's results, if they remain contested, and award the presidency to whomever gets a majority without that state.

Turley, for one, questioned whether courts would allow that to happen. If they did, he said, candidates in future elections ''could simply challenge critical states in the hope of preventing the votes from being considered.''

A postelection NBC poll offered mixed evidence of public opinion: 56 percent said the presidency should go to the winner of the popular vote, not the electoral vote, yet more people than not felt the election was fair.

As well, 72 percent said if a president came to office by winning the electoral vote but not the popular vote, his ability to govern would not be affected.

Associated Press writer Robert Tanner in New York contributed to this story.

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