Gore faces quagmire of legal options

"There's always the option of giving in," the New York Times headlined an opinion piece yesterday. Its editorial took the same line as did that of the Washington Post.

Pressure has been mounting on the candidates, particularly Vice-President Gore, to throw in the towel next week when Florida, as appears likely, finally declares for his opponent. The rising level of partisan rhetoric about the result and concerns about uncertainty arising from prolonged challenges in the courts are both propelling the country towards a major and potentially lasting political crisis. Or so the argument goes.

The candidate should swallow his pride and put the country first, they say. Remember the honourable Richard Nixon, they say. In 1960, Mr Nixon had every right to challenge the 118,574-vote Jack Kennedy victory. There was serious evidence of voting malpractice, notably against the legendary Chicago Mayor, Richard Daley, father of Mr Gore's campaign manager, William Daley. In one Chicago precinct, 43 voters seem to have cast 121 votes in the hour after polling opened. And in Fannin County, Texas, 4,895 voters cast 6,138 votes.

Mr Nixon told Mr Kennedy not to worry, he was not going to challenge the result, explaining to a biographer: "The whole country can't afford the agony of a constitutional crisis and I damn well will not be party to creating one just to become president or anything else." Different times, different candidates? Or does the fact that Mr Gore has the added legitimacy of a popular majority make a difference?

The legal option is by no means clear cut. The option is there both at state and federal level for aggrieved citizens to claim that their right to vote has been curtailed. But a legal challenge in Palm Beach, Florida, is certain to trigger a wave of similar claims in other states and a new involvement in electoral politics by the courts on a scale that would frighten all politicians.

No presidential election in US history has ever been decided by either a federal or state court, but the increasing litigious political class mirrors American society, as President Clinton found in trying to deal with the essentially political problem of Monica Lewinsky. In some ways the involvement of the courts in the presidential election process is the inevitable outcome of such a tendency, however regrettable. They have in the past been reluctant to interfere in all elections, accepting that voting is not a perfect process. The presence of demonstrable flaws may therefore not be enough to require a reballot.

The critical test was expressed by the Florida state Supreme Court as recently as 1998. It could order a new election if the court found "substantial unintentional failure to comply with election rules" and "a reasonable doubt" that the election did not "express the will of the people".

"We think we can say the will of the voters was not expressed," says Henry Handler, a lawyer representing three citizens who are already taking action - indeed Mr Gore may not be able to stop legal action by his supporters even if he wants to.

Lawyers say the court will certainly take into account both the wide historic and geographic differences in the Buchanan and spoiled votes as evidence of something going wrong. Hundreds of individual affidavits have also been signed attesting to personal confusion in the polling booth. But Republicans insist that Democrats sanctioned the controversial ballot paper ahead of the election and point to some 15,000 spoiled votes in 1996.

In 1994, a Florida precedent found that "mere confusion does not amount to an impediment to the voters' free choice if reasonable time and study will sort it out". And legal experts point to what would be the court's real dilemma if it found for the complainants, left open by the 1998 decision - how to remedy the situation. A reballot involving only those who voted on Tuesday is possible, but they say it would not be a simple rerun as voters would in effect be deciding the issue for the whole of the US. You can't turn the clock back.

If the courts put the Florida election result on hold and it is still there on December 18th when federal law prescribes that the Electoral College shall meet, the latter would be entitled to proceed to elect a new President and Mr Gore could expect to win, having the Constitutionally-required "majority of the whole number of electors appointed", currently 513. But to do so would be hugely provocative and trigger a major political crisis in which a Republican-dominated Congress would certainly try to exercise its uncertain and untested right to challenge the Electoral College votes when it comes to tally them on January 6th.

The House could also end up voting on the presidency if the Electoral College ties because some of the electors abstain or switch. In that case Mr Bush would appear certain to prevail.

In the event the issue has not been resolved by the time of the inauguration on January 20th, when President Clinton's term ends automatically, the appointment of an interim President is a matter for Congress.

The constitution provides that "Congress may by law provide for the case where neither a President elect nor a Vice-President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such a person shall act accordingly until a President or Vice-President shall have qualified." Mr Clinton would almost certainly not be asked to carry on by the new Congress.

Mr Gore's options are all uncomfortable. To surrender will deeply disappoint not only his ambitions but a successfully mobilised Democratic electorate which will believe the election to have been stolen. To fight is likely to plunge the country into a divisive period of uncertainty only to face the prospect eventually, if he wins, of trying to work with a bitter and an unmanageable Congress.