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                        The Butterfly Flap That Led to Election

                                            By JONATHAN TURLEY

 The concept of a stalemate in a presidential election was
 legitimately viewed by most Americans as unthinkable until Tuesday
 night. Such an occurrence has long been only a mind-teaser for
  academics, a type of constitutional chaos theory in which a butterfly
 flaps its wings and causes an entire system to fail.
 in the Amazon and, by disturbing the atmosphere, this minute action
     gradually could be magnified to the point that it causes a hurricane in
 the Atlantic. Constitutional law also has a chaos theory that was
 thought equally implausible. A state presidential election is held in
  which small localized violations of balloting occur with regard to a
   few hundred votes. The state then gives one of two candidates a
 slim majority of only a few hundred votes. Under the rules of the
 electoral college, the prevailing candidate then receives all the state's
  electoral votes.

Now, assume that the candidate is then elected by only one

electoral vote, making the state's electoral votes essential to the final

outcome. This is precisely the legal situation presented by Florida's

Cliffhanger election.

We now face a number of nightmare scenarios that would be

triggered by a single event: a challenge by the loser of Florida's

election. Assuming that the mandatory recount of the Florida ballots

certifies George W. Bush to be the winner, Al Gore would be faced

with perhaps the most difficult political decision of this century:

whether to challenge the recount, as is done routinely in local and

state elections.

As the winner of the popular vote, the temptation to bring a

 standard court challenge may be irresistible for Gore. It is common

for vote challenges to invalidate hundreds of votes on technicalities

alone. In Florida, there are a host of potential challenges, including

the allegation that thousands of votes were cast wrongly because of

a defectively designed ballot. If Gore yields to this understandable

temptation, a number of possible nightmare scenarios could occur.

Consider just two:

No. 1: Assume Gore challenges the election and a court finds

that a sufficient number of ballots are invalid. Gore could move for a

court to enjoin the electoral college from finalizing the outcome of

the election on Dec. 18. This could prevent Bush's inauguration and

potentially lead to a vacancy in the presidency. Under the 20th

Amendment, President Clinton cannot continue in office beyond

noon on Jan. 20, 2001. Under that same amendment and the

Presidential Succession Act of 1947, either the House speaker or

Senate president pro tem would then assume office as acting

president. If the speaker could not take office, South Carolina Sen.

Strom Thurmond (R-S.C) would then become our acting president.

No. 2: Assume Gore challenges the election and the challenge

extends beyond the inauguration. After the inauguration and any

appeals, a final order could be issued that invalidates the Florida

results and calls for a new round of balloting for the state or an

isolated area of the state. Now, assume that Gore then prevails. We

then would face the prospect of a president who is challenged as

illegitimate. The Constitution does not have a process to remove a

president except through impeachment or disability. Neither applies

in this case.

That would leave a federal court in the position of simply

ordering the assemblage of a new electoral college to ratify the new

electoral balance. Once ratified by the electoral college, the court

might have to then order the removal of the sitting president and

vice president and a new inauguration. All political appointees then

 would have to be removed.

Of course, all of these options would result in possible appeals

and, even with a expedited process, there might not be a resolution

for one or even two years.

The alternative is that Gore could simply waive his right to

challenge the results of the final vote count in Florida. This was

precisely the approach of Richard M. Nixon when he lost a highly

questionable election to John F. Kennedy by a slim national margin.

Gore, however, would then have to occupy himself with the real

possibility that he was the legitimate president-elect. In such a case,

one would hope that Gore would accept a lesser but worthy

alternative office as the chairman of the Campaign for the 27th

Amendment: the final repeal of the electoral college. Upon that

subject, he could well secure the support of an overwhelming

majority of Americans.
                                                                    - - -



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