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Archive for Tuesday, December 12, 2000

Deadline has ‘wiggle room’

December 12, 2000

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— Midnight today is the deadline established by federal law for the selection of Electoral College delegates who will vote their choice for president next Monday.

But how can this be done with the last five weeks of protracted legal proceedings? In the opinion of several constitutional law experts, there is no practical way for Florida to meet that deadline unless it certifies electors pledged to Texas Gov. George W. Bush.

Some experts believe there would be nothing to stop the Supreme Court from ordering a recount to continue until Dec. 18, when electors from all the states meet, or even later. Until Congress meets on Jan. 6 to count electoral votes, courts might be able to order Florida officials, including Gov. Jeb Bush, to certify Al Gore as the winner of Florida's 25 electors.

Today's deadline has never been tested in court, and there is considerable doubt about how firm that deadline really is.

Robert Hardaway, a University of Denver law professor and author of "The Electoral College and the Constitution," said: "I see some wiggle room in the Dec. 12 date, but I don't see any wiggle room in the Dec. 18 date."

Although the Constitution itself does not set dates, a century-old federal law says that members of the Electoral College must cast their votes on the first Monday after the second Wednesday in December. This year, that is Dec. 18.

The same law says that if a state has made a "final determination" of any electoral dispute six days earlier Dec. 12, in this case that determination "shall be conclusive." In other words, Congress cannot challenge a slate selected by Tuesday. This is the "safe harbor" provision of election law that lawyers and judges have referred to in recent weeks.

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