HE DISPUTE over Florida's electoral votes has moved from counting room to court room. At the end of the judicial day, however, if neither candidate concedes, the final decision rests with Congress. Court proceedings should be expedited rather than obstructed, so that they can be concluded in time to guide the candidates and Congress.
On Jan. 6, 2001, the newly elected House and Senate (with Vice President Gore presiding) will meet to count the electoral votes. The process for the count is prescribed by the Constitution and the federal Electoral Count Act, which provides a procedure to deal with the problem of conflicting double returns from a state.
That procedure has never been seriously used or challenged, but the US Supreme Court would probably decide that the conduct of the count presents a political question within the exclusive power of Congress. For now, the candidates must assume that Congress will proceed under the Act to make the final decision.
On Jan. 6, if the judicial recount now being sought by Gore has produced a Democratic majority certified to Congress, the joint session may be faced with double returns for the first time since the Hayes-Tilden controversy in 1877. The Republican electors would claim under Governor Bush's original certification or under an amended certificate based either on a decision by the US Supreme Court reinstating Secretary Harris's earlier decision or on the Florida legislature's election of a new slate.
The Electoral Count Act provides that if double returns are objected to in writing the Senate and House are to consider the objection separately. The Act provides for three specific double-return situations:
1. If a state under existing law has made a ''final'' determination of any controversy or contest ... by judicial or other methods'' by Dec. 12, 2000, the votes of the Electors whose appointment has been upheld must be counted. This provision is designed to get Congress out of the business of deciding for itself which return to count. Unfortunately, complexity may prevent completion of a judicial recount by Dec. 12.
Failure to reach a ''final determination'' by that deadline, however, will not mean that Florida's votes are not counted.
2. If there are competing ''final'' determinations, for example a judicial recount and a legislative slate, and the houses agree which is ''final,'' those votes are counted. If the houses agree that neither is final, the matter proceeds as though there were no final determination. Florida's votes would fail only if the House and Senate disagree.
3. If there has been no final determination, the House and Senate may agree either to count or reject the votes presented as ''lawful'' under state law. This scenario might present the joint session with a conflict between Republican electors certified by the governor and Democratic electors claiming on the basis of a judicial decision reached after Dec. 12. If the houses cannot agree, the votes certified by the governor are counted.
As with impeachment proceedings, the decision ultimately is a matter of the political judgment of each Senator and Representative. In a purely political decision, the House might support the Republican electors, and the evenly divided Senate, with Gore casting the deciding vote, might support the Democratic slate. The Republican votes would then be counted.
To avoid a partisan political decision, the candidates should abandon the Supreme Court appeal and proceed expeditiously to complete the pending judicial recount. The loser in the recount should concede, because the integrity and public visibility of that process will cause Congress to treat the recount as binding.
If the candidates persist, Congress should still accept the recount result. The clear intent of the Electoral Count Act is that the recount should complete and validate the popular vote.
If a nonbinding judicial recount is completed after Dec. 12, the integrity and visibility of the process should compel the same result. A naked and judicially unreviewable congressional decision would serve neither the public or the national interest.
L. Kinvin Wroth is dean and professor of law at Vermont Law School.
