Path packed with constitutional pitfalls

By Mary Leonard and John Aloysius Farrell, Globe Staff, 12/9/2000

ASHINGTON - Where does it go from here?

To Florida, for a recount.

To the US Supreme Court, for a ruling.

To the Florida Legislature, for a resolution.

To Congress, maybe, for a vote.

The further the nation travels in this tumultuous presidential election, the more the unknowns, loopholes, and maybes come into play.

There is one possible outcome that could end the tempest cleanly - the US Supreme Court agrees to hear George W. Bush's appeal this week, issues a sharp rebuff to the Florida Supreme Court, and snatches victory from Al Gore one final time.

But if the US Supreme Court lets the drama play on, the next acts are rife with intrigue and scenarios.

''The Florida Supreme Court decision opens up this whole Pandora's box of forums and procedures and politics,'' said John Yoo, a constitutional law specialist from the University of California at Berkeley.

''I don't know whether this is a constitutional crisis, but it is totally unknown territory,'' said Charles O. Jones, an emeritus professor of political science at the University of Wisconsin. ''We are seeking to test a set of processes that are creaky from disuse, and nobody knows how they work or where the oil can is.''

Consider this potential scenario, by no means unlikely:

The Florida Legislature is expected to pass a resolution that names electors pledged to George W. Bush as the winners of the Nov. 8 election. But what if a subsequent court-ordered recount shows that Gore has won?

The Florida courts would then be expected to order Governor Jeb Bush to certify his brother's defeat and award the state's 25 electoral votes and the presidency to the Democrats.

Bush could refuse, said Michael Glennon, a constitutional law specialist from the University of California at Davis, and the state Supreme Court could then issue a writ of mandamus, ordering him to act at the cost of being held in contempt of court.

''Now we are getting into Saturday Night Massacre kind of stuff,'' said Viet Dinh, a law professor at Georgetown University, referring to the constitutional crisis that occurred in the midst of the Watergate crisis. ''It's all confused.''

A standoff between Jeb Bush and his own Supreme Court would probably end up in the federal courts, said Glennon, and ultimately in the US Supreme Court once again.

But if the outcome is not settled before Dec. 12, the day that states are supposed to name their electors, then the new Congress, which will convene early next year, has the right to choose any set of electors it wants, and either party could reopen the matter.

The catch here is that it takes a vote of both houses to reject one slate and choose another, and with the House under Republican control and the Senate tied at 50-50, the president of the Senate would have to break the tie.

And who is the Senate president?

The vice president of the United States: Al Gore.

So Gore votes for himself and the election is again gridlocked.

''This is where it really turns into a donnybrook,'' said Robert Bennett, a constitutional law professor at Northwestern University. ''Federal law is quite clear that when the House and Senate can't agree, the slate certified by the state's chief executive - in this case, Bush's brother, Jeb - is the one that gets chosen.''

Which might end the matter - if the courts had not forced Jeb Bush to certify the Gore slate, as well as the Legislature's Bush slate.

At this point, said Glennon, Congress could proceed without counting Florida's votes at all, which would give the election to Gore, who leads Bush in the electoral college, without Florida, by a vote of 267 to 246.

Except that no one has ever determined whether the election of a president requires a majority of every member of the Electoral College, or merely a majority of those that Congress recognizes.

''We have no case law on this,'' Jones said.

Of course, all such speculation could end if the US Supreme Court rules against Gore in the next few days.

On Monday, the US Supreme Court sent the case of Florida's disputed manual recount of three counties back to the Florida Supreme Court, saying it wasn't clear where the court had taken its power to extend the recount deadline.

The high court asked for clarification and suggested it might still consider it a federal case, not a states' rights issue, if the Florida court had improperly relied on the state constitution to rewrite election law.

In yesterday's ruling, the Florida Supreme Court asserted it was acting within its authority to interpret state election law that allows for manual recounts, even if it means extending the deadline.

''It looks like a reasonably straightforward decision,'' Bennett said. ''There is no federal question here, and it is not clear what business the US Supreme Court would have getting into it at this stage.''

But now, with the possibility that the presidential election might end up in Congress, the stakes are higher.

''I think the justices of the US Supreme Court took the first Florida case so they could be in play and if they were at some point needed to make things sane,'' said Susan Low Bloch, a professor at Georgetown University Law Center. ''One way or another, whether they say yes or no to the recount, they want to give some legitimacy to this election.''

Bush campaign lawyers last night asked Justice Anthony Kennedy, who oversees the US Circuit Court of Appeals for the Supreme Court, to issue an emergency injunction to stop the counts before they get started. The Bush team said the counting violates the US Constitution's guarantees of due process and equal protection.

Wednesday, the appeals court dismissed Bush's request for a recount injunction because, it said in a 8-4 opinion, he was not injured by the recount since Florida Secretary of State Katherine Harris had certified him the winner of the state's 25 electoral votes.

The new appeal asks a broader constitutional question, that is, have some Floridians had their votes diluted, and therefore been denied due process, because they do not live in counties were recounts occurred?

Bloch said the Bush equal-protection argument might be weak now that the Florida Supreme Court has ordered vote counts to take place throughout the state and beyond the original selected counties.

However, in its opinion, the appeals court said they would be willing to entertain the constitutional questions. ''In view of the complex and ever-shifting circumstances of the case, we cannot say with any confidence that no live controversy is before us,'' the majority wrote.