election questions

[David R. Dow]

i would add two observations to professor aleinikoff's post.

first, if an ordinary congressional race were afflicted by the reported
irregularities in the florida vote -- and by irregularities i mean both the
confusing ballot in broward county as well as (very sketchy) reports of
florida state troopers pulling over black voters in the panhandle --
litigation to assess the impact of such irregularities would clearly be
appropriate.  does the fact that this is a presidential election suggest
that gore should, for the sake of avoiding disruption and what would
certainly constitute a constitutional crisis, forego such litigation?  or
does he indeed have an obligation to institute such litigation?

second, in contrast to litigation aimed at correcting irregularities in the
florida voting, the prospect of lobbying electors seems extremely
troubling.  if an elector in a state carried by bush switched to gore,
could a bush voter in that state sue the elector?  could a bush voter in
another state sue the elector -- and in effect seek mandamus to compel the
elector to act in accordance with state law?  i am sure there are sound
(even creative) answers to these questions, but i am also sure that if we
were to get to the point where we were actually having to answer those
questions in a federal court, we would be in the midst of a collossal
crisis.

-- d.dow


At 08:26 AM 11/08/2000 -0500, you wrote:
>Al Gore's Campaign Chairman Bill Daley appears to have stated that if Bush
has won Florida that Gore and Lieberman are prepared to concede the
election.  Should they?  Here's a counter-argument, based on the assumption
that Gore has won the popular vote (and that the Nader votes in Florida
cost Gore the election). Obviously, the country is divided right down the
middle.  The Senate may well be tied [although even if 50-50, is it correct
that Lott remains Majority Leader?]; the House is nearly tied. To give the
White House to Bush would allow Republican domination of both
branches--permitting a Vice President who received fewer votes than his
opponent to cast tie-breaking votes.  In such circumstances, why shouldn't
the Democrats try to build a popular campaign to have electors "vote their
conscience" or establish a "fusion government."   I'm not sure what form
such a proposal could take.  Consider the following suggestions:  (1) that
electors split their ballots for Bush and Lieberman, or Gore and Cheney [n
>Several questions:  to what extent are electors bound by state law to vote
as a unit for the winner of the state?  would campaigns for "open voting"
by electors create too great a potential for mischief?  would it be
inconsistent with the constitutional design?  is it finally time to get rid
of the electoral college?
>
>Alex Aleinikoff
>Georgetown University Law Center
>aleinikt at law.georgetown.edu
>
>