Will Election Wind Up In Court?

As officials in Florida recount the vote totals there, the unresolved presidential race still is in the realm of the political, as opposed to the legal. But that could change, and change quickly, depending upon how that recount goes and whether more astonishing news comes out of the Gold Coast.

There are so many possible scenarios that focusing on a few would unfairly underemphasize the rest. But since teams of lawyers for both the Gore and Bush camps already are swarming down to Florida, it's worth hypothesizing a bit about how this all may play out.

From the Gore perspective, the best-hope scenario, of course, would be to find a way to win the recount. That's because it is virtually impossible to win a legal challenge to an election absent extraordinary fraud, misconduct or other irregularities. Does the controversy in Palm Beach County - in which perhaps hundreds or thousands of Gore votes mistakenly were cast for Pat Buchanan because of a confusing ballot - constitute voting irregularity? I'm not so sure. Missing ballot boxes are another story but judges still are typically loathe to get too involved in the nuts and bolts of an election.

If after the recount Governor Bush still has the lead in the state, the next thing to look for will be how big that lead is. If the recount lessens the Governor's margin to a few hundred votes or so, the Gore folks may decide to mount a legal challenge after all, especially if the Democrats can point to enough specific examples of voting misconduct to make a difference. In other words, if the Bush lead is reduced to 500 votes, and the Democrats can identify 750 people from Palm Beach who are willing to testify that they mistakenly voted for Buchanan, we are likely to have one humdinger of a battle.

But if the recount shows that the Governor's lead over the Vice President is extended to several thousand or so, I don't think we are likely to see a legal challenge. The larger the apparent margin of victory, the lesser the chance is that the Gore team will try to - or succeed - in overturning the result in court or in the House of Representatives. That's not really legal analysis, of course, that's just plain math.

If for whatever reason there is a legal challenge to the final voting tally, it clearly will be a case where the judge will immediately drop whatever else he or she may have on the docket to fast-track this through the legal process so that an ultimate decision from the courts, or from Congress, comes before mid-December, which when the Electoral College is scheduled to meet to implement this vote.

There are many other variables which certainly must be factored into the equation here. How will Florida officials handle the recount? Will the Palm Beach folks get to change their votes? Were their missing ballot boxes from key Democratic districts? Will the fact that the Governor of Florida is a Republican affect things? How about the fact that the state's Attorney Generais a Democrat?

And what about those Electoral College voters themselves? Did you know that none of them can legally be forced to vote for the winner of their particular state? Can you imagine the legal fuss that might occur if, say, five of those Electoral voters decided to abstain from voting for Bush in December because Gore won the popular vote? That would leave the Governor short of the 270 votes needed to win election. And Gore wouldn't have 270 electoral votes, either.

I could go on and on with a "Parade of Legal Horribles" but when it comes right down to it, whoever wins this first recount is likely to win the state and the nation and the right to govern over a dramatically divided country for the next four years.