Experts: Don’t count on Dec. 12 deadline

By WILLIAM GLABERSON

The New York Times

When the U.S. Supreme Court stopped the counting on Saturday, some analysts said Vice President Al Gore could not recover from the blow because of the ticking clock that has dominated the battle for the White House.

But on Sunday, many legal experts said the so-called deadline of Dec. 12 — Tuesday — for choosing Florida’s electors was not really a deadline at all. If Gore wins a ruling from the justices in Washington, even after Tuesday, the counting can resume and continue, most experts say, at least until Dec. 18 — nextc Monday — when federal law says the Electoral College is to vote, and possibly even longer.

"There is nothing in the law that says the ballots can’t be counted past the 12th," said Abner Greene, a constitutional law expert at Fordham University School of Law in New York.

The idea of Dec. 12 as an immutable deadline has emerged in news accounts and in some court rulings in recent weeks because of imprecise explanations of complicated issues. Those issues concern federal laws describing procedures to be followed in Congress if there is a battle over competing slates of electors.

Also, when it benefited them, lawyers for both sides sometimes fostered the idea that all counting had to be completed by Dec. 12.

But in interviews on Sunday, several constitutional and election law experts said that if Gore’s lawyers defied predictions in this morning’s arguments in the Supreme Court and convinced the justices that the recount should continue, the so-called deadline would not prevent it.

"The 12th is a deadline only for the purpose of establishing a slate of electors from Florida that would be conclusive on Congress," said Larry Kramer, a constitutional law expert at New York University School of Law. "If they don’t make that deadline, nothing happens: the counting could continue."

Under federal law, Dec. 12 is the date this year for states to reach a "final determination of any controversy or contest" concerning their electors. The law says Congress is to treat a decision made by Dec. 12 as conclusive.

But the law does not prevent Congress from considering another slate and, if Gore were to win a recount, there could be considerable political pressure for Congress to acknowledge a Gore slate.

Some experts say vote-counting might even continue until Congress meets in early January — or perhaps even longer — if that were necessary. But the experts disagreed about what a truly final deadline might be.