WASHINGTON — If you believe, as I do, that we are skating on thin ice in the dispute over Florida’s presidential votes, then the forgotten case of Dr. Lloyd W. Bailey of Rocky Mount, N.C., may soon become much better known.
Bailey was a Republican Party stalwart chosen by the Tarheel GOP as a presidential elector for Richard Nixon in the 1968 election. But when it came time to perform that ceremonial duty, Bailey decided to vote instead for George Wallace, the American Independent Party presidential candidate.
When the House and Senate met in joint session on Jan. 6, 1969, for the usually routine count of electoral votes, objection was raised to Bailey’s vote by members of Congress who thought it properly belonged to Nixon, who had carried North Carolina. Interestingly, the lead objector on the Senate side was Edmund Muskie of Maine, the vice presidential candidate on the losing Democratic ticket headed by Hubert Humphrey.
It is what happened next that has unexpected relevance for us. Once objections were filed, the House and Senate separated. Each debated the issue for two hours, and then voted. On both sides of the Capitol, most members thought Bailey should be allowed to vote as he pleased. The roll call was 58-33 in the Senate; 228-170 in the House.
Why is this relevant? Because it is not impossible that the upshot of the ongoing Florida battle will be a congressional contest over the 25 electoral votes that can determine the identity of the next president. Unless the escalating legal-political battles in Florida are settled definitively before the Dec. 12 deadline for certifying electors, it is quite conceivable that rival delegations of electors could present credentials at the Capitol next Jan. 5, each claiming to be the legitimate representatives of their state. Or serious objections might be lodged against the credentials of a state-certified set of Bush or Gore electors.
How might this happen? Let’s say that Katherine Harris, the Republican secretary of state in Florida, certifies Gov. George Bush as the winner of Florida’s 25 electoral votes on the basis of the vote counts she collected on Tuesday, plus the overseas absentee ballots.
And let’s say that the Florida Supreme Court, composed entirely of appointees of Democratic governors, or Florida’s Democratic attorney general, Bob Butterworth, rules that Harris exceeded her authority or misinterpreted the law — and that the hand-counted ballots, which the Gore camp believes will favor him, should have been included in the Florida tally.
Voila! Two sets of electors, each with a putative claim to be representing the real winner of Florida’s decisive electoral votes.
This is not a personal fantasy — or nightmare — of mine. One of the most thoughtful members of Congress, Rep. David Price, a North Carolina Democrat and former Duke University political scientist, has circulated a memo to his colleagues alerting them that Congress may find the Florida dispute in its lap, come January.
In his memo, Price told his colleagues the Bailey story and outlined how it was resolved. He also cited the case, following the 1960 election, where two certifications arrived from Hawaii — the first attesting to credentials for Republican electors and the second, following a recount, for a Democratic slate. In that case, Congress voted unanimously to accept the updated or corrected set of votes.
Would such an easy decision be assured if a Florida certification were challenged? It’s doubtful. The controlling statute says it takes only two objectors — one from each chamber — to interrupt the electoral count and send the House and Senate into simultaneous but separate two-hour caucuses, followed by votes. Next year, the House and Senate will be very closely divided between the parties; indeed, a tie is possible in the Senate, depending on the slow count of absentee votes in Washington.
Rejecting a state’s electoral votes — or choosing between rival claimants — requires concurrence of both the House and Senate. Would Sen. Joe Lieberman of Connecticut, the Democratic vice presidential candidate, be entitled to vote on his own case? Could Vice President Gore cast the tie-breaking vote if the Senate divides 50-50? Would every representative and senator vote the party line, or would some be under intense pressure to vote the way the majority of their constituents had cast their ballots?
The questions are many — and puzzling. It’s the stuff of Washington fiction. But unless Florida is settled soon, it could become all too real.
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