HOW TO END THE ELECTION STALEMATE? WITH A BUSH-LIEBERMAN ADMINISTRATION

By CRAIG J. ALBERT

There is a solution to the election mess and a way to end the candidates’ stalemate: a Bush-Lieberman Administration. Under the Constitution’s procedures, it could happen. And more than this, perhaps it should happen.

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The current scorched-earth, winner-take-all approach will leave us bitter and wounded. Regardless of who wins the current court battles, half the population will feel that the process was tainted by a power grab. If, on the other hand, we could use the Constitutional process to reach a consensual settlement, the prospects for healing would be much greater.

The Arguably Ambiguous Constitutional Text

The Twelfth Amendment provides for a separate ballot for President and Vice President, and imposes the following counting rule for the Electoral College:

the person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.

Currently, neither Presidential candidate’s tally amounts to the 270 representing a majority of the 538. That raises the question of what would happen if one or more of the states failed to certify its election results in time to designate a slate of electors. Would one of the candidates still have a "majority of the whole number of Electors appointed"? Or would no one have a majority?

One might argue that there could still be a majority, on the ground that the failure of a state to certify its election results would mean that its electors were not "appointed" and thus would not count. According to this view, if New Mexico, Oregon and Florida failed to choose slates of electors, Gore would have a majority of the then-501 electors and would therefore be elected President.

But this simple answer, though currently popular, is probably wrong. To find the right answer, we have to look at what Congress meant when it selected the word "appointed".

Using Legislative History to Determine What "Appointed" Means

Specifically, we need to look to an earlier election procedure, contained in Article II of the Constitution, in which the phrase "majority of the whole number of Electors appointed" was also used. Its original proposed language read, in relevant part, as follows:

The Person having the greatest number of [electoral] votes shall be President, if such number be a majority of that of the Electors and if there be more than One, who have such Majority, and have an equal number of votes, then the Senate shall choose by ballot one of them for President: but if no Person have a majority, then from the five highest on the list, the Senate shall choose by ballot the President – and in every case after the choice of the President, the Person having the greatest number of votes shall be Vice President: but if there should remain two or more, who have equal votes, the Senate shall choose from them the Vice President.

The Convention rejected a proposal to amend this language to permit selection of a President by plurality, rather than majority, vote. It also rejected a proposal, by James Madison and another delegate to insert the words "who shall have balloted" after "Electors." Madison’s notes state his rationale: "so that the non voting electors not being counted might not increase the number necessary as a majority of the whole -- to decide the choice without the agency of the Senate." The proposal’s failure showed that the delegates did, in fact, want the non-votes to count in determining the number of votes required.

Delaware’s John Dickinson then moved, "in order to remove ambiguity from the intention of the clause as explained by the vote" to add the word "appointed" after "Electors." The motion’s success showed, again, that the Convention wanted non-votes to count in the denominator for determining whether the number of votes cast for a Presidential candidate constitutes a majority.

The impact of a rule that treats the non-votes of electors who abstain exactly the same way as we treat electors who are never designated is that in both cases, the failure of the electors to cast votes will not totally disenfranchise the state’s voters. That is because if there is no majority, based on the elector’s failure to vote, then the voters’ voice will still be heard via an election by the House of Representatives.

A large state that embarked upon a course of non-designation or non-voting intentionally would do so at great risk, because its influence is diminished in the vote by states in the House. A small state has greater proportionate influence in the House than its population would warrant, but the ability of the small state to play that strategy is diminished because of the smaller chance that its votes will be critical to an electoral college majority.

History Provides Further Insight on the Definition of Appointed

If that is correct, then Florida, New Mexico and Oregon have all "appointed" their electors, as have all 48 other jurisdictions. At this point, 538 electors have been appointed, but we only know who 501 of them are. The three laggards merely have yet to ascertain the identities of the electors that the voters have appointed. And thus the number 538, as the number of electors "appointed" should serve as the denominator to calculate whether any candidate has received a majority of electors’ votes, regardless of whether or not these states actually name electors, or whether or not any electors they name abstain from voting. .

How A Bush-Lieberman Administration Could Happen

So what happens if neither candidate reaches a majority of the 538? Under the Twelfth Amendment, the newly chosen House will immediately proceed to choose a President from between the only two candidates who have received electoral votes, Gore and Bush. But the votes will be counted by states, not by member, with a majority of states needed for election. Based on last Tuesday's results, the Republicans have a majority of the seats in 28 state delegations. Bush would certainly be elected.

The Vice-Presidential choice will go to the Senate, but the Senate will vote by individual and not by state. Joe Lieberman, the re-elected Senator from Connecticut, will join the other 49 Democrats in voting for himself (assuming Maria Cantwell manages to defeat Slade Gorton in the interim), while 50 Republicans will vote for Dick Cheney. Vice President Gore will cast a deciding vote in favor of Lieberman, immediately making him the Vice President-elect.

What a Bush-Lieberman Administration Might Bring

Imagine for a moment the prospect of two years of policy over politics. President Bush would offer his proposals to a closely divided House and a Senate in which the Vice President would play an important role. Vice President Lieberman — a relatively conservative Democrat — could play an important role on the National Security Council, the National Economic Council, and in other non-partisan tasks assigned to him by the President. Republicans and Democrats could occupy important Cabinet positions with the understanding that their focus should be on formulating policy without regard to party politics. Dick Cheney could be our Secretary of Defense, and Al Gore our Secretary of State.

Best of all, this doesn’t require lawyers and the myriad of battles in courts whose judges are the products of political machines. It requires a few sensible politicians to sit down and decide that it’s more important to have a few years of progress and dialogue than it is to have rancor. These two warring scorpions will come to terms with one another because they have to, and not because they want to. If a Bush-Lieberman administration were to force compromise, we could all be the better for it.


Craig J. Albert is Associate Professor of Law at Seton Hall University and a FindLaw Contributor.

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