Vice President Al Gore is approaching an agonizing decision that could risk not only his future but his party's: whether to mount a legal challenge to the Florida vote if the final count next week certifies George W. Bush as the winner in the state that will decide the next president.
Although Gore's camp has spoken openly about pursuing litigation, aides made clear Friday that he has made no decision whether to join lawsuits filed by Florida residents challenging the ballot in Palm Beach County.
Despite apparently winning the popular vote, Gore's campaign deeply believes that he trails in the state only because thousands of voters in Democratic-leaning Palm Beach County erroneously cast ballots for Pat Buchanan, or double-punched their ballot and were disqualified.
But if the campaign joins the lawsuits Palm Beach residents have filed to overturn the result, Gore risks appearing as though he is refusing to accept the voters' will an image some Democrats are grumbling could hurt the party in the 2002 election.
If Gore is committed to contesting the results at every stage, Democrats would have several more options for challenging Bush including, at the most unlikely extreme, lobbying individual members of the Electoral College to switch their votes on Dec. 18 from Bush to Gore in the name of upholding the popular will.
How far does Gore want to take the challenge? How long will his party stand with him if it fears his efforts are alienating the public?
So far, Democrats have been supportive of Gore's aggressive pursuit of a Florida recount. But a small, though growing, number are expressing anxiety about pursuing the battle beyond that.
"For the sake of the country ... there has to be some closure," Leon Panetta, President Clinton's former chief of staff, said Friday.
Democratic Sens. John Breaux, D-La., and Bob Torricelli, D-N.J., have offered similar advice as have the editorial pages of the Washington Post and New York Times, two papers ordinarily favorable to Democrats in their editorials.
But people around Gore say he is receiving private encouragement from other Democrats.
Gore aides argue that the campaign's opinion about how to proceed is less important than the desire of Palm Beach voters to challenge a process they believe disenfranchised them.
"There's nobody in a position to pull this plug; this is a process that goes on with or without us," says Laura Quinn, the communications director at the Democratic National Committee and a close Gore adviser. "The equivalent of what people are asking from Gore right now is not a concession but a withdrawal. They are basically saying they want Al Gore to withdraw from the race before the race is concluded."
The next step for the Gore campaign is clear: pressing for as exhaustive a recount as it can get in Florida. It has urged four Democratic-leaning counties to recount ballots by hand; in theory, that could pick up ballots where voters did not punch the hole clearly enough to be read by a machine.
Of the four counties, Volusia, which Gore carried by about 15,000 votes, has agreed to recount by hand all its 184,018 ballots. Palm Beach County and Broward County have agreed to recount three sample precincts by hand and to consider a broader recount if the initial survey shows changes in the results. Miami-Dade County will meet next Tuesday to decide whether to conduct a hand recount.
One Gore aide said that in addition potentially to producing more votes for the vice president, the hand count could generate a critical piece of information. The Palm Beach hand count, which begins today, should give a sense of how many of the roughly 19,000 ballots disqualified for double-punching contained votes for both Gore and Buchanan, the aide said.
If a significant number of disqualified Palm Beach ballots contain votes for Gore and Buchanan, it could strengthen the vice president's case that a fair count would give him enough votes to carry the state and thus an electoral college majority. And that could make it politically easier for Gore to join litigation against the Palm Beach ballot, aides believe.
But if Gore goes to court in Florida, Republicans made clear on Thursday and Friday that they likely would challenge the results in other states that the vice president narrowly carried particularly Oregon, Iowa and Wisconsin. Local Democrats in New Hampshire, which was carried by Bush, have discussed the pursuit of a recount there.
Both parties appear mindful of alienating the public by seeming to refight the election in the courts.
The first break point for Gore could come by next Friday, when under state law, all absentee ballots must be received. Florida counties have another week until Nov. 24 to certify those ballots, although given the enormity of the stakes the counties are expected to act more quickly.
If he still trails after all those ballots are counted, Gore must decide whether to concede the election or to join the ongoing legal challenges in Palm Beach.
Some people argue that the vice president is in no position to stop local residents from suing if they believe their right to vote has been violated. But some advisers say that if Gore publicly conceded the race after the initial Florida count is complete, most judges probably would dismiss the litigation as moot.
Legal scholars generally agree.
"My hunch is that you cannot force a reluctant candidate to continue his campaign and his quest for elective office," said former federal appeals court judge William A. Norris, a Democrat who works as an appellate lawyer in Los Angeles.
Electoral College try
An even more distant possibility, is that Gore could slip into the White House if Florida's votes are not settled by the time the Electoral College meets.
In order to win the Electoral College, would Gore or Bush still need 270 votes or would they merely need a majority of the actual electoral votes cast when the electors meet? If Florida's 25 votes aren't counted, the electoral college would comprise just 513 votes, meaning either side could win with just 257.
The key passage in the 12th Amendment to the Constitution reads as follows: "The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed ... "
Kmiec and other legal experts said the meaning of the word "appointed" has never been ruled on by a court. However, he said that if the results in Florida are unresolved, then the most plausible argument would be that no electors from the state have been "appointed."
Kmiec said that if Gore still has 267 electoral votes (assuming he holds New Mexico and Oregon), then the Gore forces might argue that the electoral vote should go forward. Consequently, he said Gore could benefit by having the Florida situation tied up in court on Dec. 18.
This could create a gigantic problem if the Florida situation were resolved before inauguration day in Bush's favor, which could trigger yet more litigation. If the situation is sufficiently muddied, scholars say, the election could be thrown into the House of Representatives, which would create a whole new series of legal questions.
Most politicians believe the dispute will be resolved long before it reaches that point if only because such an exhaustive battle could be a Pyrrhic victory that undermines the presidency of whichever man survives it.