"The Election That Wasn't"
 11/15/2000

I ceremoniously went to my local polling place on November 7, did the usual jive of who I was, and walked into the polling booth. Once inside, I closed the curtains, pulled on some levers, and open the curtains to leave. When I left the booth, my vote was automatically added to the other votes cast that day - at least in that particular booth.

It's now November 16 and there is still no announced winner of the Electoral College votes. I cast my ballot and the great state of Florida is holding the name of the next president of the United States hostage. 

A friend who lives in one of the counties being contested wrote that he heard on a local news program that "two foreign ministers from Bosnia have been asked to assist former President Jimmy Carter to help recount the Palm Beach County votes." Sure, it's a joke, but it has about as much credibility, at this point, as anything being doled out by Al Gore. Bush, it seems, has a lick of sense in what's happening with the manual recounts. That's to his credit, or at least to the credit of his advisors - whatever the case may be.

Now on to the important stuff elections are all about. The inauguration. No, I'm not talking about the pomp and celebration. Rather, it's the inauguration ceremony itself - the swearing in of the new president - that's I am talking about.

January 20 is a day reserved under the U.S. Constitution for the swearing-in of the president every fourth year. That's is the calendar for this coming January 20. And do you know what? No matter what Al Gore or George W. Bush do in court, with any kind of legal maneuvering, January 20 is going to roll around. It doesn't matter if they don't add that page to their Franklin planners - the date is still going to arrive.

The question that I've had on my mind since Gore went on TV and whined that he if he couldn't have a recount in Florida - according to his rules - he was going to take his toys and go home. Wait a second. I screwed up. He said if he didn't get to have a recount in Florida - according to his rules - he was going to start new lawsuits. He's the epitome of the typical bullying crybaby. 

This column isn't about partisan politics. This column isn't about the candidate I voted for in this last election. This column is about doing what's right - both in your personal life, as well as professional life. It's also about doing things that may be uncomfortable, yet right. 

Gore, you see, was all smiles when he had the last-minute lead in Florida. Then the tides turned and Dubya (you know, George W. Bush's nickname, remember?) was in the lead in Florida. As time went by, it became clear to the television networks that Dubya the decided victor of the election, and declared him the winner of the Sunshine State's 25 Electoral College votes.

Gore did the right thing at that point. He picked up the phone, called Dubya to congratulate him on the victory, and then conceded the election to Dubya. A short time later, he went back and said he "unconceded."

Wait a second here, Gore. You don't quit anything in life, then run back and say, "Oh, wait a minute, I had a dumb attack. I think I had a chance of winning, so I un-quit!"

Without rehashing hours and days worth of reporting on the matter, Gore's decision to un-quit came over the small margin of votes by which he lost the election. Under Florida law, recounts were performed in certain areas, and the total number of votes changed slightly, but Dubya still had a 300-plus win over Gore more than a week after the election was over. 

With each manual recount, the votes change slightly. The chads - the small, perforated sections of the ballot that are supposed to fall out when punched by the voter in the election booth - are falling out. Judges in Florida are saying if there is an indent on a chad, then the voter intended to punch that chad. It's immaterial, it seems if the other chad is fully removed. For example, if the chad for Gore is missing, but the chad in the block for Bush is slightly dented, then the voter intended to vote for Bush. Wrong. How stupid can a judge be in such matters?

Casting those issues along the wayside, the legal maneuvering is proceeding. Dubya wants the manual recounts halted immediately, as the votes are being adulterated. Gore wants the manual recounts to continue - and wants all votes in the entire state recounted manually - for the same reason: because the votes are being adulterated. Gore thinks if he can have the votes recounted enough times, he will get an extra 300-plus votes to be declared the winner of Florida's Electoral College votes.

As the recounts continue, the pages in my Franklin are being flipped one by one, showing January 20 is about two months away. Someone is supposed to be taking an oath of office that day. As it stands right now, with all the legal maneuvering, it doesn't seem likely that a winner will be declared in time for the inauguration. Think about this for a second. How many times have you heard about lawsuits - and the subsequent challenges - being resolved, in full, in less than two months?

The U.S. Constitution is crystal clear about noon on January 20 being the day set aside for swearing-in the president-elect. It's also clear in its verbiage that it's also the day - at noon - that the sitting president is no longer in power. Did you follow that? Here's an example.

The legal battles continue. Clinton continues serving as president. At noon, January 20, 2001, Clinton's term of office expires, as afforded by the U.S. Constitution. At 12:01 p.m. January 20, 2001, a new president needs to have his hand in the air, finishing the oath of office of President of the United States. If that isn't happening, what happens at that point?

Since there is no legal precedent for this matter, and the U.S. Constitution does not address this issue, I called the White House for guidance. A young lady by the name of Jill told me she had read that Speaker of the House, J. Dennis Hastert, would be sworn in as president, as he was third in line for succession. 

When I challenged Jill, saying that Hastert couldn't be sworn in, as this wasn't a succession matter, she said, "I read in a news magazine that the third in line for president, the speaker of the house, would become president."

Excuse me? You read something in a news magazine, and now you are passing it off to others? Wait a second, Jill. You work in the White House. In fact, Jill works in the White House press office. The White House press office, you see, has diversified over time, and now has an assistant press secretary for Internet news. His name is Mark Kitchens, but he was unavailable at deadline. Jill was the unfortunate soul to field my call on Thursday, November 16. 

When I pushed Jill about the credibility of her source, the news magazine, she said she read the information in that week's issue of Time magazine. Wow! That blew me away - the U.S. government, the White House press office, in fact, was relying on information in Time magazine to issue statements about key national issues.

Jill, who asked just before we said our goodbyes, said I couldn't use her name for attribution for anything she said during the conversation. Excuse me? You talk with me, make comments, and then - after the fact - tell me I can't use your name? Sorry, cookie, I don't play that game. You tell me up front any special rules for dealing with you. I've never played that game with any source, political or otherwise, in almost two decades as a journalist, and I'm not beginning now. The person or position never impressed me, whether it was the mayor of the City of Philadelphia, a trustee in the Village of Monee, Illinois, or a congressman sitting in his Washington, D.C. office. I never played politics before, and I won't begin now. My brash style has the trademark of shooting from the hip - maybe that's why I was on so many Christmas lists over the years. 

Jill said she read an article by Matthew Cooper in that week's Time magazine that the Speaker of the House would become president if one is not already selected through Electoral College votes, or approved by the House and Senate by January 20. The exact text she read is:

Q. O.K., let's assume a total nightmare. The Electoral College doesn't pick a President, the House and Senate doesn't pick a President - all by Jan. 20. What happens?

A. Clinton has to leave office and the Speaker of the House becomes President. If he can't serve, Strom Thurmond, the president pro tempore of the Senate, becomes President. (Source: Time, Nov. 20, 2000, pg. 45, column 3)

I called Cooper at Time's Washington, D.C. office and asked his source for the information. He cited the President succession act of 1948. Cooper said he was very busy and couldn't speak after providing the information. That's fine. I love when a journalist is too busy to document sources, especially in an article.

Not being one to be lax about fact checking, I called an Ivy League school to speak with a Constitutional law professor. I reached Stuart M. Benjamin, an associate professor at the University of San Diego School of Law, and presently a visiting professor at the University of Pennsylvania Law School.

Benjamin has a interesting background. He graduated from Yale College (sumna cum laude), with a B.A. in history in 1987, and from Yale Law School with his J.D. in 1991. His experience, however, is the interesting part. From the winter of 1992 through the summer of 1995, Benjamin worked as an attorney-advisor in the Office of Legal Counsel for the U.S. Justice Department. He prepared legal opinions and provided advice to the Executive branch on constitutional law and federal statutes. He also reviewed proposed legislation, to ensure it was constitutionally sound.

Following that sojourn, Benjamin served as a law clerk for Justice David H. Souter. Souter, in case you aren't aware, is seated on the U.S. Supreme Court. Before heading to the University of San Diego, Benjamin took time to serve as an associate to Professor Laurence Tribe, drafting appellate briefs and revisions to Constitutional law treatise.

Now, with Professor Benjamin's credibility firmly established, I asked him what happens on January 20, 2001 if legal snafus continued to ensnare the entire electoral process.

According to Benjamin, the ordinary understanding is that a presidency ends at noon on January 20. He continued, saying that the succession statute, as cited in the magazine article, as well as referenced by Jill at the White House, provides that the Speaker of the House, in this case, Dennis Hastert, from Illinois. Benjamin, however, explained to me that there is a pretty strong "constitutional argument about that particular portion of the statute being unconstitutional and that you must be an officer of the United States to become president in this case. That would knock out Hastert."

That sounds pretty clear to me, and it makes sense. So what's the beef?

"There's never been a challenge on this issue before," Professor Benjamin explained. He continued, saying that the particular line of succession, in terms of someone being appointed president on Inauguration Day, would have us first look at the Secretary of State. Madelyn Albright currently fills that spot, but she isn't a natural-born U.S. citizen, so she is eliminated from further consideration under the U.S. Constitution. Next up would be the Secretary of the Treasury. That position is currently filled by Lawrence (Larry) H. Summers.

Benjamin said, "This gets particularly tricky in 'Why does the President's mission end at noon, but not Albright or Summers'?" The answer is simple. "Because we have to have someone to function and serve in holdover."

The professor said the U.S. Constitution is explicitly clear about when the term of the president ends. 

"Section 1 of the Twentieth Amendment says it ends at noon on January 20," Benjamin said.

And what happens, professor, should we get to that date and no one can legally stand, and Summers says, "I'm here. Go ahead and swear me in."

"It would probably go immediately go to court and there would be an immediate decision," he said.

If it comes down to a judge appointing the next president, well, so much for your voice in the voting booth. In fact, I'd go so far to suggest if that were to be the case, the appointed president select one day, perhaps January 21, 2001, to be a federal election day. Everyone go back to the polls, vote for one person, and whoever wins that election is president. That would ensure the voice of the people is heard, and the will of the people is served.

See, your vote really does count. All the talk for decades about the flaws in the Electoral College may have just ended. Now serious discussion about elimination of the Electoral College has begun by many in Congress. If that happens, it seems likely that the popular vote would win the election.”

  - by Dave Jackson (Scoop0901)