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US Elections: After the People Vote

As the days wind down to the US elections strange stuff emerges from the pundits. On this morning's Meet The Press a comment Clinton made on a NY radio show about voting "for the next best thing" was interpreted as sure evience that Hillary was going to run for President after she'd won the US Senate race. On This Week it was interpreted as Clinton denigrating Gore.

Everybody is airing their historical knowledge of "the last time". The last time... polls were this close. The last time... the popular vote and the electoral college vote were at odds with each other. The last time... a third party candidate altered the outcome of the election. This presidential race is so close that one half of one percent of the vote will make a difference.

Suddenly it's down to voter turnout being the major factor. Hey! Isn't that where people go out and cast a vote for the person they think will best serve their interests? Fewer than half of Americans vote at the polls, and neither major political party seems to care much about that until it becomes a crucial factor. The highest voter turnouts ever were in 1960 when 69 million people voted and JFK won the popular vote by less than 200,000.

But his electoral college votes inflated that win to a 303:219 majority thus giving Richard Nixon the unenviable constitutional duty, as president of the Senate, of announcing his own defeat. If Gore gets to announce his own victory this time around he will be the first vice president to do so since 1837.

The effect the electoral college has on the inflation of the popular vote in favour of the two main parties at the expense of votes cast for any independent or third-party candidates has been the source of heated discussion for a couple of centuries now. But the electoral college system makes so little difference to the outcome of the presidential election that most Americans falsely believe they're voting for the president on November 7.

Instead they're voting for which set of electors from their state will send in their votes to the president of the Senate and to the Archivist of the United States in Washington to be opened on December 18. If the popular vote in California favours Gore, then it will be the 54 electors the Democratic Party has selected who will cast their ballots. If the majority favour Bush, it will be the 54 electors the Republicans chose who get to vote. Electors can vote however they like in this process.

The electors for a third party candidate who wins the popular vote in one or more states could cast their ballots for one of the major party candidates (or anyone else). The practical reality of this is that third-party electors are likely to bargain with the two main parties to gain concessions for their candidate's platform policies and the electoral college could well produce a winner in December that was not apparent on election day in November.

And if that third party hangs on to its electoral votes, producing no clear winner of 270 votes in the electoral college, then the choice of a President - "from the persons having the highest numbers not exceeding three on the list of those voted for President" - devolves to the House of Representatives. But instead of 538 votes being cast only one per state is allowed and a majority of 26 state votes is needed to win.

Since the Twentieth Amendment changed the date of the convention of the new Congress from March 20 to January 3 it will be the new Congress that chooses the President should such a circumstance arise. Members of the House of Representatives all come up for re-election every two years (unlike Senators who have a six-year term and are voted for in lots of 33 or 34). The Democrats need a net gain of only 7 to gain control of the House, and one of those seats is already theirs by virtue of being uncontested.

It is the Senate that chooses the Vice President if no vice presidential candidate has received the requisite majority of electoral votes, but they choose between only the two highest numbers on the list and they vote as individuals. All the same, a boycott by members of one party in the Senate could prevent a choice of vice-president, if that party had more than the thirty-four senators needed to block a quorum.

In short, there is always the possibility that a presidential election could turn to custard. The adjournment motion passed in the House and Senate on November 3 was a conditional one, allowing for the possibility of Congress reassembling if it is warranted by the public interest. That would always need to be the case to cover any contingency that is not already covered by the various constitutional, statutory and parliamentary rules governing the transition from one congress to the next.

But in these uncertain times, it might well turn out to be more than business as usual, and I bet many a newsdesk has a well-thumbed copy of Walter Bern et als guide to the electoral college "After the People Vote" close at hand.

Lea Barker California Sunday 5 November (PT)

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