Tough test for the constitution

To students of American history, it all sounds familiar - allegations of fraud in the presidential election in three southern states, followed by the creation of a special commission which divided exactly on party lines to award the contested electoral college votes to the Republican candidate, sending him to the White House.

Election 2000 ? No, Election 1876, when Rutherford B. Hayes won 48 per cent of the poll, but wound up with 185 votes in the then-smaller Electoral College, one more than his rival Samuel J. Tilden who won a majority of 254,000 in the popular vote.

That was the last but one time that the indirect United States election system produced different winners in the public vote and the Electoral College, made up of delegations of electors from the 50 states and the District of Columbia.

It also happened, less contentiously, in 1888 when another Republican, Benjamin Harrison, was the beneficiary.

There are similarities between the late 19th century and the dawn of the 21st - but also huge differences. Once again - unless the Florida recount reverses the destination of the state's 25 electoral college votes - a Republican, George W. Bush, stands to gain; once again there are objections that the will of the people is not being respected.

But in other respects circumstances have been transformed.

Television, newspapers and the internet mean the entire country, the entire world, can follow every development in Florida virtually as it happens.

And America is a far more legalistic and litigious country than it was then, meaning there is a far greater risk of the controversy becoming ensnarled in the courts, instead of being handed off to a smokefilled room in Washington DC.

The margin between victory and defeat is unprecedently narrow. By early yesterday, Mr Bush's lead over Al Gore in Florida, where more than six million votes were cast, had shrunk from 1776 votes to 229.

Nationally, Mr Gore's lead in the popular vote had shrunk to less than 100,000 votes, or 0.1 per cent of the total. Absentee, overseas and military votes could further reduce, perhaps even eradicate, this lead.

If so, what happens? The obvious risk is of lawsuits. But unless fraud is proved, these are unlikely to succeed.

The Palm Beach County ballot paper - now surely the most famous document of its kind in history - may not have been a model of clarity, but so far, no one is talking of fraud.

"The plaintiff has to prove a clear reversal, that specific people were led to vote a different way," said Jan Baron, a former lawyer on the Federal Election Commission said, "and that's very difficult."

Even so, if the federal judge at yesterday's emergency hearing allows the suit filed by disgruntled voters to proceed, the picture becomes more complicated.

A decision would have to be handed down by the end of next week, and if that upholds the complaint, America would be venturing into utterly uncharted constitutional waters.

By law, the 538 members of the Electoral College, drawn from the 50 states and the District of Columbia on the basis of population, meet on December 18 to cast their votes.

The candidate gaining the 270 vote majority becomes president. But it may not be so simple.

If the legal wrangling is not settled by then, and the destination of Florida's 25 electoral votes remains unclear, it is conceivable that a federal body, most probably the Supreme Court, might delay the December 18 electoral college vote.

Alternatively the other 49 states and the District might vote. But in that case, neither candidate would reach the required 270 votes.

In that case, according to the 12 amendment of the US Constitution, the issue would be resolved by the House of Representatives - where the Republicans now have a majority.

But the decision would be made not on the basis of one man one vote, but of one vote for each state delegation.

That vote would have to be ratified by the Senate - which conceivably could be tied 50-50.

Then, the casting vote would belong to the Vice-President - Mr Gore.

There is another variable too - the Electoral College itself. Except in Maine and Nebraska, electors vote on a winner take all basis, meaning that should Mr Bush or Mr Gore win Florida by a single popular vote, he would scoop every one of its 25 Electoral College votes.

As a rule, college electors are party hacks who will toe the line. But in past elections, the odd elector has cast an odd vote.

What are the risks of this happening now, when the race is so tight, the stakes so high, and the spotlight of publicity so intense?

Amid this confusion stands one solid constant - the sacred text of the US Constitution.

Once the immediate controversy has subsided, demands will abound for a change in Article Two of the first section of the Constitution, and the 12th amendment, which set out the mechanism of the Electoral College, long described as "a train wreck in the making."

For the moment, however, the Constitution is king.

Indeed, it was to ensure that the Constitution worked smoothly that Richard Nixon, an otherwise ruthless practitioner of hardball politics, declined to challenge the legitimacy of John Kennedy's 1960 victory in Illinois, secured, many believe, with the help of ballot box stuffing ordered by Mayor Richard Daley in certain Chicago precincts.

From the outset, the Electoral College was a compromise, a product of the late 18th century, when direct democracy was a novelty.

The Federalist Papers of Alexander Hamilton, a fascinating guide to constitutional thinking of the era, say the college was a device to "avoid tumult."

In fact, it had three purposes: to make it harder for an out-and-out populist to seize power, to reconcile the demands of those who wanted Congress to choose the president and those who wanted a direct election, and to make sure small states had a say in the electoral process.

The device they chose was a college of electors, appointed by states on the basis of their congressional delegation of representatives and senators.

This gives the small states a disporportionate weight.

Tiny Delaware, for instance, with three electoral votes, has an electoral college clout three times greater than its share of the national population.

California, by contrast, is 20 per cent under-represented.

Al Gore and George Bush have gone out of their way to promise to respect the constitution, for all its imperfections. Even if he has a majority of the popular vote, Mr Gore vows to abide by the Electoral College result; should Mr Bush find himself the loser in Florida and the college, he will be under overwhelming pressure to do the same and avoid a Constitution-threatening ordeal by litigation.

That is why both camps have sent elder statesmen, not young political gunslingers, to Florida to keep an eye on proceedings

Mr Bush's man is Jim Baker, the former Secretary of State and White House chief of staff under Presidents Reagan and Bush; Mr Gore has sent Warren Christopher, Los Angeles lawyer, former Secretary of State and multi-purpose Democratic "wise man."

But in one way, the founding fathers brilliantly anticipated today's impasse.

Foreigners, especially Britons accustomed to seeing a defeated Prime Minister's personal effects on their way out of Downing Street the morning ater the election, may mock the slow pace of the handover of power in America.

It used to take even longer - inauguration of a new president was once not until the mid-March following the November election.

But even a January 20 inauguration allows more than 70 days for the transition - and, all America hopes, enough time for this traumatic impasse to be settled.

And as President Bill Clinton, back in the White House after celebrating his wife's triumph in her New York senate race, noted of the lesson from the confusion over who would succeed him ...

"No American will ever be able to seriously say again, 'My vote doesn't count'."

Herald Online feature: America votes