The Constitution is king, even when it's wrong

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To students of American history it all sounds familiar: allegations of fraud in the Presidential election in three southern states; shenanigans in southern Florida followed by the creation of a special commission, which divided exactly on party lines to award the contested electoral college votes to the Republican candidate and send him to the White House.

To students of American history it all sounds familiar: allegations of fraud in the Presidential election in three southern states; shenanigans in southern Florida followed by the creation of a special commission, which divided exactly on party lines to award the contested electoral college votes to the Republican candidate and send him to the White House.

Election 2000 ? No, Election 1876, when Rutherford B Hayes won just 48 per cent of the poll but still wound up with 185 votes in the then smaller electoral college - one more than his rival Samuel J Tilden who won a majority of 254,000 in the popular vote.

That was the last but one time that the indirect US election system produced different winners in the public vote and the electoral college, made up of delegations of electors from the 50 states and the District of Columbia. And it happened once more in 1888 when another Republican, Benjamin Harrison, was the beneficiary.

There are similarities between the late 19th century and the dawn of the 21st - but also huge differences. Unless the Florida recount conclusively reverses the destination of the state's 25 electoral college votes, once again a Republican, George W Bush, stands to gain, and once again there are objections that the will of the people is not being respected.

But in other respects circumstances have been transformed. Television, newspapers and the internet mean that the entire country can follow every development in the Tallahassee state house - virtually as it happens. As America is a far more legalistic and litigious country than it was then, there is a far greater risk of the controversy becoming embroiled in the courts, rather than being handed off to a smoke-filled room in Washington DC.

The margin between victory and defeat is also unprecedentedly narrow. By late last night, Mr Bush's lead over Al Gore in Florida had shrunk from 1,776 votes to just 359 - of the 6 million-odd votes cast in all. Nationally, Al Gore's lead in the popular vote had shrunk to under 100,000 votes, or 0.1 per cent of the total. Straggling absentee, overseas and military votes could reduce, and perhaps even eradicate, these advantages.

If so what happens? A risk of lawsuits maybe, but unless fraud is proved these are unlikely to succeed. The Palm Beach County ballot paper - now surely the most famous document of its kind in history - may not have been a model of clarity, but so far no one is talking of fraud. "The plaintiff has to prove a clear reversal, that specific people were led to vote a different way," Jan Baron, a former attorney on the Federal Election Commission said, "and that's very difficult."

Even so, if the federal judge at yesterday's emergency hearing allows the suit filed by disgruntled voters to proceed, the picture becomes more complicated. An emergency decision would have to be handed down by the end of next week, and if that upholds the complaint America would be venturing into utterly uncharted constitutional waters.

By law, the 538 members of the electoral college allocated to the 50 states and the District of Columbia on the basis of population meet on 18 December to cast their votes. Whichever candidate gets the 270-vote majority becomes President. But it may not be that simple.

If the legal wrangling is not settled by then, and the destination of Florida's 25 electoral votes remains unclear, it may be that a federal body, probably the Supreme Court, could delay the 18 December electoral college vote. Alternatively, the other 49 states and the District might vote, in which case no candidate would reach the required 270 votes (Mr Bush currently has 246, Mr Gore 260).

In this case, according to the 12th amendment of the US Constitution the issue would be resolved by the House of Representatives (where the Republicans have a majority in the new Congresses). But the decision would be made not on the basis of one man, one vote, but of one vote per state delegation. That vote would have to be ratified by the Senate , which could be tied 50-50. In that case, the casting vote would belong to the Vice-President, or Mr Gore in the case of the outgoing Senate.

And there is another variable: the electoral college itself. With the two exceptions of Maine and Nebraska, the state electors vote on a winner-takes-all basis, meaning that should Mr Bush or Mr Gore win Florida by a single popular vote, he scoops every one of its 25 electoral votes. As a rule, electors are party hacks to be counted on to toe the line. In the past, however, the odd elector has cast an odd vote.

So what are the risks of this happening now, when the race is so tight, the stakes so high, and the publicity so intense?

Amid this confusion, there is one massive constant: the sacred text known as the US Constitution. Once the immediate controversy has subsided, demands will abound for a change in Article Two of the first section of the Constitution and the 12th amendment, which sets out the mechanism of the electoral college - long described as "a train wreck in the making." For the moment, however, the Constitution is king.

Indeed, it was to ensure that the Constitution worked smoothly that the otherwise ruthless practitioner of hardball politics, Richard Nixon, declined to challenge the legitimacy of John Kennedy's crucial 1960 victory in Illinois, secured, many believe to this day, with the help of ballot-box stuffing ordered by the late Mayor Richard Daley in certain Chicago precincts.

From the outset the electoral college was a compromise. According to the Federalist Papers of Alexander Hamilton - that fascinating guide to the constitutional thinking of the era - the college was a device to "avoid tumult."

The device chosen was a college of electors, appointed by each state on the basis of its congressional delegation of representatives and Senators.

For all its imperfections, both Al Gore and George Bush have gone out of their way to promise to respect the Constitution. Even if he has a majority of the popular vote, the Democrat vows to abide by the result in the electoral college.

Should roles be reversed and Mr Bush suddenly find himself the loser in Florida and the college, he will be under overwhelming pressure to do likewise and save the country a Constitution-threatening ordeal by litigation.

That is why both camps have sent elder statesmen, not young political gunslingers, to Florida to view proceedings: Jim Baker, the former secretary of state and White House chief of staff under Presidents Reagan and Bush, and Warren Christopher, the Los Angeles lawyer, former secretary of state and multi-purpose Democratic "wise man."

In one way, the founding fathers brilliantly anticipated today's impasse. And while foreigners may mock the slow pace of the handover of power in America, it was once longer. Inauguration of a new President was not until the mid-March following the November election. But even a January 20 inauguration allows over 70 days for the transition and - all America hopes - enough time for this impasse to be settled.