Finality

[DAVID E. BERNSTEIN]

I would not be pleased by a Gore victory, but if he wins the popular
vote and loses the electoral college, I think he would be well within
his rights to start a campaign to get a few electors to change their
mind and vote for him because he won the most votes.  As a substantive
matter, I think the argument should fail because we don't actually know
whether Gore would have won the most votes had the electoral college not
existed to begin with.  If we had a plebiscitory system, then the
candidates' strategy would have been very different (Bush would have
campaigned in New YOrk, and perhaps Gore in Texas for example) and
popular vote totals would wehave changed.  A better argument for Gore is
that he not only won the popular vote but that most Nader voters would
prefer him to Bush, so his "side" won the popular vote *easily*, in a
way that strategy would have been unlikely to change.  I agree that
finality and stability or important, but this isn't a banana
republic--we can easily survive and thrive a few months not knowing
definitively who the next president will be.  So, there, Mark T.,
someone willing to argue for Gore's case that he should not necessarily
concede who doesn't want him to win.
One more point--Gore might not want to look like a sore loser if he
plans to run again in 2004.


David E. Bernstein
Associate Professor
George Mason University
School of Law
3401 N. Fairfax Drive
Arlington, VA 22201
(703) 993-8089
dbernste at wpgate.gmu.edu
<http://members.aol.com/deliotb/home.html>