Obscure Law Could Allow Congress to Decide Election

ByABC News

— -- The ballots have been counted and recounted. The courts have had their say. Think the presidential election saga ends there? Think again. Under an obscure, century-old law, Congress could ultimately choose the next president.

By Geraldine SealeyABCNEWS.comNov. 14— It seems reasonable to assume the nation will have a president-elect once thousands of votes are counted or recounted in Florida and other states. But the suspense might not end once the

ballots are tallied.

Although election experts call it a long shot, the outcome of the 2000 presidential contest could ultimately rest with Congress. An obscure century-old federal law grants Congress the power to contest the validity of any number of electoral votes when it meets for the customary reading of the votes on Jan. 6.

The law at issue is the Electoral Count Act of 1887, a delayed reaction on Congress’ part to the 1876 disputed presidential election between Samuel J. Tilden and Rutherford B. Hayes. In that election, much like this one, results were contested in South Carolina, Florida, and Louisiana.

A commission set up to settle the debate ultimately awarded the disputed returns to Hayes and gave him a majority of one vote in the Electoral College.

Defining ‘Regularly Given’

Under the law, any member of the House, together with any member of the Senate, can protest any one or more electoral votes after they are opened and read on Jan. 6. The Electoral College representatives meet to cast votes on Dec. 18.

Objections to electoral votes can be made if a vote or votes “have not been so regularly given” by the electors, the law stipulates. When an electoral vote is contested, both houses of Congress meet separately for a debate and vote. A majority of both houses must approve to discard the vote or votes.

The statute does not include a definition of what votes are or are not “regularly given.” However, the law likely refers at a minimum to electors who vote for candidates ineligible to hold office, such as foreign-born candidates or those under 35 years of age, says Michael Glennon, an election law specialist at University of California at Davis Law School.

Beyond that, the definition of “regularly given” votes is quite vague, but the law could have applications to the current election clash. “The question arises as to whether votes cast on the basis of mistake or fraud are not regularly given,” said Glennon.

What Happens on Jan. 20?

Congress could conceivably revisit the validity of any recount results and ultimately object to the entire slate of a state’s electors — for example, Florida — on the basis of voting irregularities, Glennon said.

Indeed, Congress could determine the outcome of the election no matter what a state’s recount produces. If enough electoral votes are challenged to deny either candidate a majority, the House of Representatives would choose the next president by voting in state delegations casting one vote a piece. A majority of 26 delegations would win the presidency.

Complicating this scenario is the sharply divided breakdown of the Congress when it reconvenes Jan. 6. Although the makeup of the Senate is not clear with a Washington state race still too close to call, there could be a 50-50 tie, which Vice President Al Gore would be set to break. Republicans will continue to control the House.

Federal law also outlines what steps would be taken in the event no candidate has qualified to be president by Jan. 20. If Congress gets tied up in debate over contested electoral votes and no clear winner emerges by Inauguration Day, the speaker of the House is sworn in as acting president, but he must first agree to resign his speaker position and House seat.

If the speaker refuses to step down and assume the role of acting president, the president pro tempore of the Senate is next in line.

State Legislatures Have Power

But Glennon points out such scenarios are hypothetical and quite unlikely. Further, Congress designed the 1887 law with the intention of giving states the power to resolve election disputes.

The law allows state legislatures to choose electors “whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law.”

Relying on the Legislature would help solve Florida’s election dilemma as well as similar problems in New Mexico or any other state, Glennon said.

“The Electoral Count Act will regard the Florida Legislature’s decision as conclusive,” he said. “That would be a solution [to the current Florida dispute]. It’s intended to prevent exactly the kind of things happening in Florida now.”

If the Florida Legislature does end up choosing the state’s electors, it would seem to bode well for Texas Gov. George W. Bush. Republicans hold a majority in both houses. With the state’s 25 electoral votes, Bush would gain a majority in the Electoral College.

Although the 1887 law is seldom used, it was put to work as recently as 1968 when a North Carolina Republican-nominated elector announced his intention to vote for American Party candidate George Wallace instead of Republican candidate Richard Nixon.

An objection was raised in Congress, but Bailey, a so-called faithless elector, argued he never made a formal pledge to vote for a particular candidate.

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