Assume when all the Florida overseas ballots are counted that Bush is still the winner, and thus the candidate with the most electoral votes. Warren Christopher and his phalanx of lawyers plan to mount legal challenges to the Florida vote that could drag this thing out for weeks or even months with no conceivable result that will be accepted by the country as legitimate. No matter how appalling Florida's voting irregularities may seem, there's a better option for Gore, for Democrats, and for the nation: cede Florida to Bush after the recount and urge a handful of Republican electors to switch their vote Dec. 18 to give the presidency to the candidate, Gore, who has won the nationwide popular vote.
Among the many civics lessons thrust upon us surreally this week is the reminder that the "electors" who make up the electoral college actually don't cast their vote, which finalizes the presidential election, until Dec. 18. These electors are normally party loyalists, and the issue of whether they might choose not to vote for their party's nominee would in normal times be a matter of trivia. But constitutional law gurus Akhil Amar of Yale, Erwin Chemerinsky of the University of Southern California, and Trevor Potter, a Republican election lawyer who chaired the Federal Election Commission, all tell me that electors unquestionably have the discretion to vote as they please. "The Constitution contains no restriction on electors' votes," Potter e-mailed me. "Electors were supposed to exercise their own judgment in the framer's scheme of things."
Half the states, it turns out, have laws requiring electors to follow the popular vote of the state, though for obvious reasons there's never been any need or attempt to enforce them. Yale's Amar thinks such laws are unconstitutional. And, to be sure, elector discretion has never been relevant in the real world: Less than a dozen of the 16,000 electors in U.S. history have been "unfaithful." (In 1960, a Republican-pledged elector from Oklahoma who "could not stomach" Nixon lobbied his colleagues unsuccessfully to go for ultra-conservative Harry Byrd of Virginia. A Democratic elector in 1988 impishly flipped the ticket, voting for Lloyd Bentsen for president and Michael Dukakis as No. 2. Click here for a handful of other such tales. And click here for a "Chatterbox" item on how author and elector James Michener flirted with faithlessness.)
Still, the fact of elector discretion is not in dispute; it was even the centerpiece of Jeff Greenfield's 1996 novel, The People's Choice, a book now hitting 170 on amazon.com's sales ranking (versus 786 for Gores' Earth in the Balance and 2,486 for Bush's autobiography A Charge To Keep.). As Alexander Hamilton argued in Federalist 68, "the immediate election should be made by men ... acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice." A small group selected by the general population, Hamilton added, "will be most likely to possess the information and discernment requisite to so complicated an investigation."
To see why an appeal to Republican electors to honor the popular vote is now the best course for everyone, consider the disaster that Bill Daley and Warren Christopher's legal crusade will set in motion. Suppose Gore's side somehow succeeds in reversing Florida's vote because of the infamous "butterfly ballot" in Palm Beach County, or suppression of black voters, or whatever. Does anyone think the Bush team will then say, "Oh, well, OK, then I guess you win"? Karl Rove's peddling of butterfly ballots in other states this afternoon is only the beginning. The Bushies will naturally launch an investigation of voting irregularities in other states where modest shifts could make a difference.
Earth to both campaigns: You do not want to open this can of worms. For one thing, there is no logical or practical stopping point once such tit-for-tat investigations get going. But worse, they will turn up nasty facts about the world's greatest democracy that are better left unknown.
As anyone who's been around politics knows, voting "irregularities" are a feature of every election. Some, like today's hapless (or idiotic?) Palm Beach voters who can't properly punch their ballot, are relatively benign. Others, like the "walking around" money commonly passed out by Democrats to boost black turnout, shade toward the suspect. Both sides could spend from now until 2004 highlighting each other's borderline practices in ways sure to kill confidence in the overall integrity of our system. Do Democrats really want the real deal in cities like Detroit or Philadelphia closely scrutinized? Does anyone benefit from having the nation's many innocent but nonetheless disturbing electoral snafus widely broadcast?
The answer to these questions should be a resounding "no," a lesson in discretion our political and media elites should have learned from the Lewinsky affair. First, as with the details of Bill Clinton's adultery, and offensive as the notion is to many morally confused journalists, some truths are better left unknown. Second, as we learned at great cost from the Lewinsky drama, innocent-seeming calls to rely on "the rule of law" in such crises guarantee a cultural meltdown. As most Americans intuit but most elites do not, "law" as practiced in the year 2000 is simply not fit to resolve such partisan showdowns, where suits and countersuits could leave this going indefinitely. We need wisdom, not law, to get out of this mess. Ordinarily, that's what a society's establishment is supposed to supply, but, as Monicagate proved so depressingly, there's little hope that even well-intended mandarins like Warren Christopher and Jim Baker will avoid the spiral-unto-disaster.
Al Gore has the power to save the day. Imagine if, instead of pursuing every legal option, Gore said the following once the initial recount shows Florida still in Bush's corner. "There are challenges I could still make to the outcome in Florida," Gore would say, "but I believe that to pursue them would set in motion a series of partisan legal fights that could ensnarl the country for months in ways deeply damaging to our democracy. As the winner of the majority of the popular vote in this election, however, it would be morally unthinkable, and sure to deepen the next president's crisis of legitimacy, if I simply ceded the election to Gov. Bush. Fortunately, our constitution offers a third way that will resolve this matter by a date certain and which calls on the deepest values of our nation. I hereby appeal to the Republican electors who will finalize the presidential choice on Dec. 18 to honor the will of the majority and cast their votes for me."
Suddenly, the outlook would be transformed. Today, we're looking at endless legal and political maneuvering that assures a crisis of legitimacy for any eventually declared "legal" winner while the nation lists out of control. With Gore's appeal to electors, we would instead see a time-limited national debate, made possible by elector discretion, on whether in the year 2000 it is right to allow a candidate without a popular majority to become president.
The beauty of this plan is not only its avoidance of chaos and its proper framing of the question for the nation, but its fidelity to the Constitution. Right now, a predictable chorus has sprung up to scrap the Electoral College. But isn't that an overreaction? After all, if a structural feature of government causes a problem only every hundred years or so, let's not throw the baby out with the bathwater. Going to direct popular election of presidents could usher in a host of unintended problems that prove worse, more often, than today's system--hard as that might seem to believe at this moment. (For an inventory of these dangers, click here.)
Resolving this crisis through an appeal to elector discretion proves the paradoxical genius of our Constitution. A structure intended to insulate presidential selection from popular will 200 years ago is supple enough to become the vehicle through which popular will might now be honored.
Would a handful of Republican electors switch and vote for Gore? I don't know, but as a Gore supporter I'd rather risk his losing this way than see the nation implode on its current path. Even 271 party hacks could not help but feel the weight of history in ways that would lead most to go beyond partisan interest to consult their consciences. Yes, this would leave things in the hands of a handful of Americans, but that's what the Constitution requires. These electors would be aided and pressured by an unprecedented monthlong national debate on the question of majority rule, rather than the debauched carnival of legalistic wrangling that is unfolding. Whatever they did would be the right thing.
For Democrats, yes, this means rolling the dice, but for the country's sake, that's far better than scheduling the depositions.
Matthew Miller is a nationally syndicated columnist and senior fellow at the Annenberg Public Policy Center of the University of Pennsylvania.
Illustration by Mark Alan Stamaty.