Support for loser Fowler could bring Clinton pain ON POLITICS

December 30, 1992|By Lars-Erik Nelson

WASHINGTON -- On Nov. 3, Sen. Wyche Fowler, a Georgi Democrat, defeated Republican challenger Paul Coverdell by 1,108,416 votes to 1,073,282 -- and lost his bid for re-election.

Under Georgia law, Mr. Fowler had to win by an absolute majority. Because a third-party candidate was in the race, he got only 49 percent of the total vote to 48 percent for Mr. Coverdell.

In the Nov. 24 runoff election required by Georgia law, Mr. Coverdell won 635,114 to 618,877 and was declared senator-elect.

So, tough noogies for Wyche Fowler.

Except that his supporters are suing to have him seated in the Senate anyway -- and they present an interesting legal case.

Whether it's worth winning is another question. This little-noticed case could determine whether President Bill Clinton enjoys any kind of honeymoon with Congress.

For all you constitutional lawyers out there, here are the arguments on behalf of Mr. Fowler's election:

1. Under federal law, the election of U.S. senators must take place on regular election days, which are described as the Tuesday after the first Monday in November in even number years.

Mr. Fowler won the election that was held on that day. Georgia had no authority to establish a second election Nov. 24 because the Constitution lets the federal government set Election Day.

2. Under the Constitution, Georgia may not require runoffs. The Constitution lists the only qualifications for U.S. senators: They must be at least 30 years old, citizens for at least nine years, and residents of the states that elect them.

Georgia cannot, says the suit, impose the additional qualification that a senator must be elected by an absolute majority of the vote.

3. The Justice Department already is suing Georgia to invalidate the runoff law on the grounds that it was specifically designed to keep blacks from winning elections. The runoff law was passed in 1964 as a strategy to prevent a black candidate from winning if the white vote was split among two or more challengers.

The federal suit, brought by Republican former Attorney General Dick Thornburgh in 1990, says: "In numerous election contests held throughout the state since 1965, candidates to whom black voters have given overwhelming support (usually black candidates) have received the highest vote total in the first primary but have failed to obtain a majority of the votes cast in jTC that election. In the ensuing runoff election, the candidates supported by black voters have been defeated by the white bloc vote."

Lawyers for Mr. Fowler argue further that the unique Georgia runoff requirement, if imposed by other states, would hurt Republicans as well as Democrats.

In New York in 1980, Alfonse D'Amato won with only 45 percent of the vote after Jacob Javits drew 664,000 votes on the Liberal line and held Liz Holtzman to 44 percent. If New York had a runoff, Ms. Holtzman might well have beaten Mr. D'Amato.

So, on its face, the Georgia law is racist, extra-legal, unconstitutional and bad politics.

Still, it might be wiser politically for Democrats to just swallow the loss of the Georgia seat than antagonize the Republicans by suing their way to victory.

If Senate Minority Leader Bob Dole of Kansas thinks Democrats are suing him out of one of his duly won 47 seats in the Senate, he is going to be at war with Mr. Clinton and all Democrats from day one.

With a six-vote Senate margin, Mr. Clinton doesn't absolutely need Mr. Dole's support.

But an outraged, filibustering GOP Senate minority can make life miserable for a new president and especially for all the Cabinet and sub-Cabinet appointees who have to undergo Senate confirmation.

Even without the Fowler challenge, Republicans were planning to make Democrats pay for the confirmation torture they imposed on the late John Tower of Texas when President Bush tried to make him secretary of defense in 1989.

It is surely true that Senate Democrats have not risen up in Mr. Fowler's behalf.

A spokesman for Senate Majority Leader George Mitchell of Maine says only, "He has asked our counsel to study the case." You know Mr. Mitchell. He is prudent.

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