The opinion of legal and constitutional experts is unanimous:
We are in uncharted waters.

Nobody is sure how the disputed presidential election
will or should be settled, legally, politically or constitutionally.
"It's a terrible legal quagmire," says Neal Peirce, an Electoral College
expert. Adds Tim Downs, an election lawyer who has handled numerous
contested cases: "Let me know what the answer is. I'd be interested to
find out."  To be sure, election disputes are a regular occurrence on
the political scene, and there are procedures for settling them. The
problem is that there has never been a case like this on a presidential
level, involving complicated interplay between state and federal law and
courts, the Constitution and the Congress.

Where do we go from here? That's anybody's guess, but some key questions
can be posed, albeit with multiple, often contradictory answers. Some of
the major matters of concern and possible scenarios:

Q. Who decides whether Florida voters elected George Bush or Al Gore?

A. Absent a clear winner in a recount, nobody knows. Federal courts have
historically given wide authority to state officials and courts to
oversee their own elections, even in federal races. The problem is that
all the major precedent-setting cases have involved the House and
Senate, and the Constitution specifically states that each chamber is
the final arbiter of its own disputed elections. That gives candidates a
court of last appeal. There is no clause in the Constitution that says
what should happen if the presidential election in one of the states is in dispute.
The bottom line: At every stage of the coming process there could be
numerous legal challenges, no matter what the decision. Ultimately, it may be up to the U.S.
Supreme Court or the Congress to decide -- or for one candidate or the other to bow out.

Q. What can Florida election officials do?

 A. Under Florida law, each county's election officials do an automatic
recount when the final tally is really close, as was the case here. But
that doesn't involve a detailed examination of the ballots. It just
means running the ballots through the vote-counting machines again,
which Florida started doing the day after the election. But that usually
doesn't change vote totals very much. Florida law allows aggrieved
candidates to demand a more detailed audit of some ballots, which is
what the Gore campaign now says it will do.

Q. What about the absentee ballots?

A. That's one of the big unknowns. Under state law, overseas residents
had to put their ballots in the mail by Election Day, but any that
arrive by Nov. 17 will be counted. There are expected to be at least
3,000 such ballots. Republicans are hoping they will be predominately
from military bases and therefore tend toward Mr. Bush. Democrats
counter that a lot may hail from Floridians in Israel and will therefore
favor Mr. Gore. The bottom line is that the final result of the Florida
vote, regardless of how the initial recount comes out, won't be known
until a week from Friday. And it's possible that those votes will be
decisive enough, one way or another, to make the current wrangling moot.

Q. If necessary, can the Florida courts intervene?

A. Yes, and several cases have already been filed by Gore partisans
challenging the election. But the most frequent remedy in disputed
elections -- throwing out disputed ballots -- would do them no good.
That's because the main problem involves ballots in Palm Beach County,
where numerous Gore supporters have complained that a confusing ballot
led them to vote mistakenly for Pat Buchanan or to vote for both Mr.
Buchanan and Mr. Gore.

Another option would involve inspecting the ballots by hand to try to
determine each voter's intent -- a Herculean task -- and counting the
votes accordingly. Mr.Downs, an election lawyer who generally represents Democrats,
said a judge could also estimate how many of the Buchanan votes might have been
expected to end up in Mr. Gore's column had there not been any confusion
and reallocate votes accordingly. But Jan Baran, a Republican election
lawyer, said he had never heard an attempt to reallocate votes in such a manner.

Q. How about just holding a new election in Palm Beach County?

A. That's what many Democrats want to happen, and that's possible. The
Florida Supreme Court ruled in 1998 that if there is "substantial
noncompliance" with election laws and a "reasonable doubt" about whether
election results "expressed the will of the voters" then a judge must
"void the contested election, even in the absence of fraud or
intentional wrongdoing."  A new election, however, involves its own set
of complicated issues: Under the Constitution all votes for president
are supposed to be cast on the same day. And a judge would have to
decide whether to allow all voters to cast ballots, or just the ones who
have already voted. And the Republicans could argue that there could
have been confusion in counties across the country: "If there's a revote
in Palm Beach County, it seems that Bush's people would say that others
should also get to vote again," says Terence Anderson, an election-law
expert at the University of Miami.
 

Q. Was there "substantial noncompliance" with election laws in Palm Beach County?

 A. That will be for a judge to decide. The key issue will be whether
the local election supervisor violated a rather mundane Florida law
about the design of ballots. The law says that "captions on the ballots
for voting machines shall be placed so as to indicate to the elector
what knob, key, lever or other device is used … to cast his or
her vote." The question would be whether the ballot design was so bad
that it violated the law.
 

Q. Could one state judge decide such a weighty issue alone?

A. Not really. Any judge's ruling would be only the first step of a
process that could be litigated all the way up to the Florida Supreme
Court and possibly into federal court. "If you have a process that
interferes with your fundamental right to vote, which includes having
your vote counted, then the federal courts can take jurisdiction to
protect what is considered the most basic of civil rights -- the right
to vote," said Mr. Downs, the election-law expert.

Q. But could somebody argue that the federal court has no business interfering?

A. Yes. Bruce Rogow, an election lawyer representing Palm Beach County
election supervisor Theresa LePore, said there would have to be a
civil-rights violation. "I don't think there are any viable federal
claims and clearly no state acts depriving somebody of their civil
rights," he says. "What happened at most was people were confused by the
ballots and that's a far cry from people being disenfranchised."
 

Q. Are the electoral votes of any other states in dispute?

A. Yes. Republicans are mulling recounts of narrow Gore victories in
Wisconsin (with 11 electoral votes), Iowa (seven) and New Mexico (five),
and the outcome in Oregon (seven) is still too close to call. For
example, in New Mexico, where Mr.
Gore beat Mr. Bush by about 10,000 votes, election officials Thursday
were counting 67,000 ballots from Albuquerque and surrounding Bernalillo
County inadvertently left uncounted on Election Day, and Republican
officials predicted they would pick up several thousand votes. Shifting
results in these four states would alter the overall Electoral College
calculus, possibly even resulting in a tie.
 

Q. Could the whole mess be kicked into Congress?

A. Conceivably. Under the Constitution, if neither candidate receives a
majority of Electoral College votes, the newly elected House picks the
president. Without Florida, or in the case of a tie, there is no majority.
The mess in Florida has to be settled fairly quickly because each state's
electors have to meet on Dec. 18 to cast their ballots, and those votes have
to be counted on Jan. 6 before a joint session of Congress. It's not clear
which of those deadlines would prevail, but if Florida can't settle the matter
in time, it might just be that the House will have to vote.

Q. So who would win in the House?

A. Probably Mr. Bush, by a landslide. Each state delegation gets just
one vote, and it takes 26 votes to win; delegations that are deadlocked
aren't counted. Even though Democrats gained seats in Tuesday's
election, they lost majorities in certain delegations. If everybody in
the current House voted as expected on such a roll call, the chamber
would have deadlocked with nobody getting a majority -- 25 states for
Mr. Bush, 21 for Mr. Gore and four tied. If everybody voted according to
party leanings in the newly elected House, Mr. Bush would get at least
28 states, and Mr. Gore would get no more than 19.

Q. But if Florida's electoral votes are awarded to Mr. Bush, does that end the matter?

A. Not necessarily. Most constitutional scholars agree that electors are
constitutionally free to vote for whomever they wish, regardless of
states' laws requiring them to vote for the candidate they are supposed
to support. So if Mr.Bush ends up with Florida and a bare majority of 271 votes,
just three "faithless electors" could give the White House to Mr. Gore.
There's a law that appears to allow Congress to reject such an action, but even that
would be subject to challenge on the ground that federal law cannot trump the Constitution.

Q. So could this whole matter end up being decided by the Supreme Court?

A. That's possible, but the Supreme Court has a long history of refusing
to rule on political questions, and it's hard to imagine a more
political question. So it might be that the court would just toss the
matter back to Congress and say: You make the call.
 
 
 
 
 
 
 
 

 The vote challenge in Palm Beach County throws the presidential
election into uncharted legal waters, and its resolution is far from
clear. While there is no sign that the county ballots were fraudulent,
or even erroneous, Democrats are charging that the ballots did violate
state law. The law requires that captions on the ballots "shall be
placed so as to indicate to the elector what knob, key, lever or other
device is used ... to cast his or her vote." If a judge finds that the
ballot design was so bad that it violated that law and that the will of
the voters was thwarted, the judge could, under Florida law, order a new
county election. Any such ruling, of course, could be appealed to the
state's highest court, and possibly into federal court.
"If you have a process that interferes with your fundamental right to
vote ... then the federal courts can take jurisdiction to protect what
is considered the most basic of civil rights," said Tim Downs, an
election-law expert.
Mr. Downs said that as a remedy, a judge could conceivably order a new
vote in Palm Beach County. It's also conceivable that if Florida can't
settle this by early January, the matter could be thrown to the House of
Representatives to decide.
Under the Constitution, the House must decide the outcome if neither
candidate wins a majority in the Electoral College -- which would be the
case if Florida remains unresolved. In the House, Mr. Bush would have
the edge, since each state delegation is given one vote, and Republicans
will control more than half of the state delegations in the new
Congress.
For now, it isn't even clear where the legal process will begin, much
less where it will end. A suit against the election was filed early
Thursday by Milton Miller, a voter from Boca Raton, in the court of
Federal Judge Kenneth Ryskamp. But it was abruptly withdrawn in the
afternoon. Democrats worried that Judge Ryskamp, a well-known
conservative jurist, would be an unfriendly arbiter. Three other suits
were filed in state circuit court in Palm Beach.
Neither Mr. Bush nor Mr. Gore -- the two men ultimately with the
capacity to head off a constitutional confrontation -- had spoken
publicly about the evolving situation by early Friday. But by all
accounts, each was laying the public-relations groundwork for a
protracted fight. Mr. Gore is counting on his edge in the national
popular vote and allegations of confusing ballots in Palm Beach to shore
up his support with the public. The Bush camp is arguing that its
candidate won the Electoral College vote on election night, and that the
nation needs a clear result as Mr. Clinton's presidency draws to a
close.
 

-- Emilio M. Guerra