College Bound?

By Matthew Cooper

Q. Let's start with the Electoral College and then get to the Florida mess. Why did the Founders set up this system?

A. They were divided. Some wanted Congress to pick the President. Others wanted the citizens to choose directly. The Electoral College was the compromise.

Q. So these electors, who are they?

A. States decide how they're chosen, but usually they are loyalists chosen by their parties. Five hundred and thirty-eight electoral votes are distributed among the states--one for each member of the House and Senate. (The District of Columbia gets three.) An elector is chosen for every electoral vote available to a state. Electors can't hold federal office. Some celebrities have been electors, like Coretta Scott King, Martin Luther King Jr.'s widow. This year they include the Florida attorney general, a retired school administrator in Ohio and a computer specialist in Arizona.

Q. When and how do they vote?

A. On the first Monday after the second Wednesday in December--we're not making this up--electors gather, usually in state capitols, and vote. This year that falls on Dec. 18.

Q. Can electors vote how they please?

A. Twenty-six states have no requirement that electors vote in accordance with the popular vote. Nineteen states and D.C. mandate that they vote in accordance with the popular vote, but there's no penalty if an elector fails to do so. Only five states have penalties for deviating from the popular vote. But in most of those states, the sanctions are relatively minor--in Oklahoma, for instance, it's a $1,000 fine. Of the states that are currently in some dispute, Florida, Iowa and New Hampshire don't try to bind their electors; Wisconsin, New Mexico and Oregon do. But it's worth noting that no elector has ever been prosecuted for being unfaithful. Throughout U.S. history, only nine electors out of some 18,000 have violated their pledges. It's going to be hard to find one who's going to break his or hers. Frank Straka, a Bush-Cheney elector from Arizona, tells TIME, for example, that he won't switch even if Gore wins the popular vote nationally. "It's like the playoffs," he says. "One team may score more runs, but if they don't win the four games, they lose."

Q. Will we know on Dec. 18 how the electors voted?

A. Probably. The Constitution says they shall submit their votes "sealed" to the president of the Senate, but generally the balloting has been quite open. We'll know for sure on Jan. 6, when Senate president Al Gore reads the results before a joint session of Congress.

Q. Wait. Gore reads the results?

A. Yes. Gore remains the president of the Senate until Jan. 20, when a new President would presumably take office. Vice President Richard Nixon, in 1961, had the dubious honor of announcing his own defeat. Martin Van Buren, in 1837, and George Bush, in 1989, had the pleasure of announcing their own victories.

Q. What if no candidate gets an electoral majority?

A. It goes to the House, which chooses among the top three electoral vote getters.

Q. And is it the new House or the old House that makes the choice?

A. It's the new House. When it takes office, it is required to immediately begin picking a new President if there's a deadlock in the Electoral College.

Q. So the House just votes?

A. No. It gets weirder. Rather than having individual members cast ballots, each state delegation gets one vote. Tiny Rhode Island has as much clout as California.

Q. Does the District of Columbia vote in the House?

A. Nope. The Constitution is pretty clear that only state delegations can vote.

Q. What if a delegation is evenly split between parties?

A. If a candidate doesn't win a state's majority, then the state is listed as "divided" and its vote is forfeited.

Q. Do you need 26 state-delegation votes to win, or just a simple plurality?

A. You need 26 states.

Q. What if no candidate gets 26?

A. It goes into more balloting, and horse-trading for votes. Some members may be pressed to switch to the way their states, their districts or the national majority voted. Some may be swayed by the prospect of an ambassadorship or a big Cabinet job. The delegations in the new House, however, are likely to be dominated by the G.O.P., thus favoring Bush.

Q. The Vice President is picked by the Senate, right? And he can be of a different party from the President?

A. Yes! The Constitution says the Senate must pick from the two highest vice-presidential vote getters in the Electoral College.

Q. We know it's the new House that votes. But is it the new Senate?

A. Yes, and in contrast to the House, its members vote as individuals, not by state.

Q. Can Lieberman be a member of that new Senate if he hasn't resigned yet? He won't potentially be sworn in as Vice President until Jan. 20, right?

A. Yes. Lieberman will be a member of the new Senate for a few days and then he could resign as late as noon on Jan. 20, when, if his ticket wins, he'd become Vice President. He's not allowed to hold both jobs at the same time.

Q. If the House can't decide who should be President by Jan. 20, when Bill Clinton leaves office, what happens?

A. A number of things could happen. The Senate could pick a Vice President, with 51 Senators voting for either Lieberman or Cheney, and one of those two men would become President.

Q. If the Senate splits 50-50, can Al Gore break the tie?

A. It's not clear. As president of the Senate, Gore has the power to cast tie-breaking votes, but the 12th Amendment calls for a majority of "Senators" to vote for Vice President, and Gore is not a Senator. Count on another court challenge.

Q. Assuming Gore can break the tie, he could vote for Lieberman?

A. Sure. That sets up this scenario: Lieberman would become President and then appoint Gore Vice President, subject to congressional confirmation.

Q. O.K., Florida. What happens if the state's electors are still under legal challenge by Dec. 18, the date they have to vote? Could federal or state courts enjoin the electors from voting on Dec. 18?

A. It's possible but unlikely. First, courts are generally loath to get into electoral issues, let alone one this hot. Also, since the Constitution mandates that the electors all vote on the same day, if Florida's electors don't vote with the rest of the country on Dec. 18, the state would forfeit its electoral votes.

Q. What happens if a Florida court orders a new election in some county?

A. A court can do what it wants, but again, if the electors haven't been chosen by Dec. 18, Florida's electoral votes go into the trash.

Q. If Florida can't get its act together by Dec. 18, does Bush or Gore still need 270 to be President?

A. Nope. They need only a majority of those states that have appointed their electors. Without Florida, that would be 513 electors, and 257 would be enough for a majority. Gore has 262 excluding Florida and New Mexico; Bush has 245.

Q. If the election stays muddled in Florida, could the state legislature fix this?

A. Yes. The legislature could reconvene and appoint electors itself. Amazingly, the U.S. Constitution does not require that electors be popularly chosen--only that the states come up with some method for appointing them. Under federal law, the Florida legislature has until Dec. 12 to pick new electors. It could even vote to let the Governor pick the electors--but don't count on it. Florida has a G.O.P.-controlled legislature, but it would be toast if it usurped popular control of an election.

Q. Could two opposing slates of electors "assemble" in Florida on Dec. 18, the way two slates did in the contested 1876 election? Could both send their votes sealed to Gore, the president of the Senate? Does he have a say in which one he opens?

A. Well, the only electoral votes that Gore could open are ones "certified" by the Governor. (This is different from state officials certifying the election.) If the Governor certifies the Bush-Cheney electors and the Gore-Lieberman electors send in a rival ballot, it's ignored. The only exception here is if the Senate and House object to having the Bush-Cheney electoral votes counted. As for Gore, his role under the Constitution and federal statute is pretty much just reading the ballots or breaking a tie in the Senate over the Vice President. But the Senate and House, concurrently, can make objections to electoral slates and prevent them from being counted.

Q. O.K., let's assume a total nightmare. The Electoral College doesn't pick a President, the House and Senate don't pick a President--all by Jan. 20. What happens?

A. Clinton has to leave office and the Speaker of the House becomes President. If he can't serve, Strom Thurmond, the president pro tempore of the Senate, becomes President.

Q. President Thurmond?

A. Under this system, anything's possible.