A new president won't be sworn in Jan. 20, 2001, legal and political experts warn, if Florida elections officials don't resolve their presidential voting problems by Nov. 17 and thus avert a looming court battle. Three nightmare scenarios could emerge when the recounts have been completed and the overseas absentee ballots have been tabulated, lawyers and political observers in Florida, Washington, D.C., and California said Thursday.
Democrats go to court in Palm Beach County and later Tallahassee, seat of the Florida Supreme Court. Republicans counter, challenging slim Democratic victories in Iowa and Wisconsin.
Legal proceedings and court appeals keep the situation deadlocked for weeks, possibly months. Congress postpones the Electoral College's scheduled Dec. 18 vote, or a court issues an injunction delaying the final official balloting.
Result: There's no new president until late winter, possibly early spring.
"This would be American politics at its worst. They had better be goddamned sure they really have a legal case," said Curtis Gans, director of the nonpartisan Committee for the Study of the American Electorate, in Washington, D.C.
Peter Dunbar, a Tallahassee lawyer who was a five-term Republican state legislator and legal counsel to ex-Gov. Bob Martinez, also a Republican, agreed that an unprecedented situation is coming up fast, unless either candidate puts on the brakes — possibly sacrificing himself.
"It'll depend on Gore and Bush," he said. "Ultimately, the two of them will have a lot to say, if not the ultimate say, on how long this dispute will rage on. Under law, it's possible it could drag on well beyond the time the next president would be seated."
Elections officials declare Bush the winner, but the courts go for Gore. Two sets of electoral votes are sent to the U.S. Senate, where they're opened by the president of the Senate — Vice President Gore — in the presence of the House and Senate.
"If that situation were to arise," said UCLA election law specialist Daniel Lowenstein, "the Constitution is very unclear. It doesn't contemplate that possibility. All we have is that the Senate and House must be present when the votes are counted.
"Does that mean if there's a controversy every member would have a vote? Would the houses act separately? Would each state get one vote? The Constitution doesn't address any of this. The best thing to do is cross our fingers and hope we don't get to that place. But who knows?"
A court finds itself in a position to postpone an Electoral College vote likely to certify Bush, but it declines to do so, reasoning that the greater harm to the nation would be in delaying the January transition.
It's then up to the Gore camp to fight or give up, despite the fact that the vice president is winner of the popular vote. The question comes down to one man's choice between what is both legally feasible and consistent with the popular vote, and what may be politically damaging to the nation.
"We're in uncharted territory here," said Los Angeles lawyer Stephen Kaufman, an election law authority and Democratic Party advisor.
'We're in state court' What's almost certain, experts said, is that we won't know who won Florida until Nov. 17, deadline for the arrival of absentee ballots postmarked Nov. 7, many of which are believed to have been mailed from overseas. Although two state lawsuits endorsed by the Democratic Party have been filed already by private citizens, Dunbar said, the political parties themselves would then make policy decisions about possible litigation.
U.S. Attorney General Janet Reno has offered to review any complaints brought to her, but the likelihood of a federal intervention in court was considered remote, because the legal premises involved would be sweeping and difficult to prove.
Federal action necessarily would be based upon alleged Voting Rights Act allegations of racial discrimination like those already made by some black voters in Florida, said election law specialist Frederick Woocher of Santa Monica, or upon constitutional violations depriving voters of some basic federal right.
"Bottom line is we're in state court," Dunbar said. "But there you have some pretty severe thresholds. You have to show fraud or circumstances so overwhelming that you could not have conducted a fair and appropriate election."
So far, he said, it appears such an action likely would be based on the allegations by Palm Beach County voters that their ballot was so poorly organized that many who intended to vote for Gore cast ballots for Reform Party candidate Pat Buchanan, or unintentionally voted twice for president.
Dunbar said that wouldn't meet the fraud test in Florida elections law, but it might be sufficient evidence that a fair and appropriate election hadn't been conducted in Palm Beach County.
"Normally," he said, "the answer (by a court) would still be 'no,' but in this case the margin of victory would be so small — and it would affect the entire election — it might be 'maybe.'
"That's what the plaintiffs would say. I don't agree, but I think it's plausible."
Any decision made by a county circuit court in Florida — the equivalent of a superior court in California — could then be appealed to the state District Court of Appeals and possibly go all the way to the Florida Supreme Court in Tallahassee, a seven-judge panel composed of Democratic and Republic appointees.
Lawyers said the Florida Supreme Court might accept the case directly on appeal from the circuit court and consider it on an expedited basis, in view of the urgency of the situation.
The question remains, however, of whether a county-level judge would want to take a case that could determine the next occupant of the White House. Without exception, lawyers said no.
Lowenstein: "They'd feel that, 'Yes, there was a problem in Palm Beach, it's very unfortunate, the lawsuit is not frivolous — but do I really want to go in after the fact and reopen the thing?'
"As a general matter, courts do not want to disturb election results."
North Palm Beach, Fla., lawyer Dean Rosenbach agreed. He and his wife voted for Gore. Both thought the ballot was incomprehensible. Rosenbach thought it was also defective — and therefore illegal — under the standards of the state elections code.
But he thinks Palm Beach County and Florida may be done deals for Bush.
"We don't have Mayor Daley stealing the election here," he said, a reference to allegations that former Chicago Mayor Richard Daley, a longtime Democratic Party boss, threw the last election this close — the Kennedy-Nixon contest of 1960 — to the Democrats.
"We have a lot of seniors and ballots can be confusing, anyway. But is it realistic to presume a judge will let a new election go forward because a small percentage of the population screwed up? My guess is the courts won't do it."