Battle for presidency could go to US Supreme Court

WASHINGTON - After the Florida Supreme Court makes its ruling, legal manoeuvring in the long-running presidential race could continue, with at least one possible scenario taking the case to the United States Supreme Court.

Florida's highest court began considering arguments yesterday on whether manually recounted votes should be included in the final tally for Florida, but its decision would not necessarily answer the question of whether Republican George W. Bush or Democrat Al Gore won the November 7 presidential election.

"There may well be further legal challenges - what they would be, one can only speculate," said Charles Jones, an expert on the presidency at the Brookings Institution in Washington.

"You're entering an area in which we don't have any very clear precedents."

One possibility is that if the Florida high court rules that the hand recounting of votes should continue and should be included in the final Florida tally, the Bush camp could appeal to the Federal Appeals Court in Atlanta, Jones said.

If the Atlanta appellate court ruling favoured Bush, the Gore camp could appeal the matter to the US Supreme Court in Washington.

William G. Ross, a professor at Cumberland School of Law in Birmingham, Alabama, said there could be an even more direct path to the highest US court.

"The question is whether federal courts have jurisdiction; election procedures are traditionally a matter of state law, and federal courts are reluctant to intervene," he said.

"However, it appears that in this case, this raises a significant federal issue - it's not just a federal election, but the ultimate federal election, for the presidency," Ross said. "It certainly seems as though federal Government would have a significant interest in the outcome of a federal presidential election."

To get to the high court without going through the Federal Appeals Court in Atlanta, either Gore or Bush would have to allege violations by Florida authorities, Ross said.

There are other questions that also must be settled.

Florida Secretary of State Katherine Harris must at some point certify the election results so the state's electors can cast their votes on December 18 for the Electoral College. But there is no requirement that Florida electors vote for the popular vote winner, and some so-called "faithless electors" could vote against the tide.

Jones saw the possibility that the Florida delegation's vote might be challenged in this case, and all 25 of Florida's electoral votes discarded.

That would raise questions about exactly what the US Constitution meant by requiring the winner to receive a majority of electoral votes.

As it now stands, a simple majority of these votes is 270, or half of the 538 total plus one. With Florida's votes discarded, the total would be 513 and a simple majority, 257. Gore at present has 255 electoral votes and Bush 246, without Florida, New Mexico or Oregon. New Mexico has five electoral votes, Oregon has seven and Gore leads in both states by small margins.

Jones said that if the question were not answered, the election could be thrown into the US House of Representatives.

Ross and other legal experts offered alternatives to this eventuality, some of them almost fanciful, though argued on the basis of law and precedent.

Ross suggested that the presidential candidates split the four-year term down the middle, with one resigning after two years and allowing the other to take over.

"The constitutional procedure for such a compromise is clearly permitted by the 25th Amendment," Ross said. "After the candidates decided which man would serve first, the one who would serve later would instruct a sufficient number of his electors to vote for the opposing presidential and vice-presidential nominees."

In Ross' scenario, the swap would take place when the first president's vice-president would resign after two years, the first president would appoint his erstwhile opponent as his vice-president, and then the first president would resign.

Victor Williams of Catholic University School of Law suggested that the Florida state legislature could appoint the electors, formally voiding Florida's popular vote.

Craig Albert, an associate professor of law at Seton Hall University, suggested the possibility of Bush having Gore's Democratic running-mate, Senator Joseph Lieberman, as his vice-president.

But practically, one Gore adviser said, the questions would conclude with the Florida Supreme Court's decision.

Ross agreed, especially if the Florida court favoured Bush: "I think at that point the political reality would tend to favour Bush ... The public would simply be out of patience with any challenges."

- REUTERS

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