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As America goes to the polls on Tuesday, and with the candidates neck and neck, we face the prospect of a train wreck at least as bad as the Florida disaster in 2000. Congress has not addressed the critical problems with the electoral vote process revealed by that debacle. These problems could arise again if there are razor-thin popular vote margins in any of the battleground states-if the chads hang or the new computers crash-in this, or a future, election. In November 2000, with Florida’s popular vote a virtual tie, recounts and other challenges sprang up on all sides. The existing legal framework designed to deal with contested presidential elections was overwhelmed by the political process and misunderstood or ignored by all concerned, resulting in a stalemate that took a U.S. Supreme Court thunderbolt to undo. Because Vice President Al Gore accepted the Supreme Court’s decision, we were spared the further spectacle of a challenge when Congress exercised its constitutional power to count the electoral vote. Florida’s problems arose under a complex mixture of federal and state law. The federal Electoral Count Act of 1887 gives conclusive effect to certain state “final determinations” of popular-vote controversies, taking Congress out of the process of deciding those controversies when it counts the electoral vote. If a valid state determination is reached six days before the statutory date for the meeting of the electoral college, Congress is bound to accept it. The act, however, does not prevent Congress from considering a later state determination, even though it is not binding. In 2000, the six-day deadline date was Dec. 12, 2000. On that evening, a 5-4 majority of the Supreme Court in Bush v. Gore ended Florida’s recount. The majority held that the standards by which ballots were being counted were unconstitutional and that no further recount was possible because the Florida Supreme Court had held Florida law to require recounts to be completed by Dec. 12, 2000. Toss it back to the state court Nevertheless, as other justices suggested, it was open to the Florida court to reconsider its decision and establish a constitutionally proper standard. A recount could then have been completed after Dec. 12, 2000, that, consistent with the 1887 act, could have been considered by Congress. If Gore had not conceded, and there had been no further recount, the ensuing proceedings in Congress under the 1887 act would have raised an even greater public furor. Congress would have faced for the first time since the Hayes-Tilden election of 1877 a series of difficult factual and legal questions that the 1887 act was meant to avoid. In the absence of a completed recount, Congress would have had two choices: conduct the necessary factual investigation, as it tried to do in 1877, or decide on political grounds. The 1887 act provides no neutral arbiter. The decisions of Congress in counting electoral votes are ultimately political and dependent on the conscience or loyalties of each senator and representative. The Supreme Court has been unwilling to enter the political thicket when the Constitution gives Congress specific power to decide a question. Naked and unreviewable political decisions by Congress on legal and factual issues would have been even less acceptable to the public in 2000 than was the Supreme Court’s equally fact-free determination in Bush v. Gore. If the legal and factual questions had been authoritatively decided even after Dec. 12 in state proceedings conducted under intense public scrutiny, there would have been irresistible political pressure on Congress to accept the results; the decision would have been acceptable because it would have avoided the stigma attending a purely political call. For the 1887 act to have truly served its purpose, however, an early understanding of its provisions by the candidates and the courts, and mutual forbearance in the pursuit of all available judicial remedies, would have been necessary. Either side could have facilitated, rather than obstructed, the proceedings by forgoing injunctions and letting the counting and the appropriate judicial recounting procedures roll on to a conclusion. Since 2000, Congress has not, as it might have, made the 1887 act more workable by giving greater rein and flexibility to state-contest procedures. Instead, recent federal and state legislation designed to improve balloting and counting procedures has only created its own set of issues to bedevil the process. This year, if recounts or other challenges arise, Congress may have to face the factual and legal issues directly unless existing state procedures function well. If they are allowed to work, and state judges and other officials use their powers and discretion to implement them fairly and efficiently, disaster may be avoided. The real burden, though, rests on the candidates and their partisans to participate actively, but in good faith, in state proceedings and accept their results. Then, state officials and Congress will be able to reach a conclusion about the outcome of Election 2004 that will be acceptable to the public and the world. L. Kinvin Wroth is professor of law and former dean of Vermont Law School.

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