WASHINGTON - Assuming that the Florida presidential vote is finally sorted out, the nation still won't know for sure until January who will become president. Congress, under the law, has the last word, and it could reject the outcome.
The Constitution's 12th Amendment, controlling the Electoral College, and an 1887 federal law that governs how Congress counts electoral votes leave little doubt that the lawmakers may reject the presidential votes sent to it by the states.
If the partisan feud over the choice of the next president continues even beyond a resolution in the potentially decisive state of Florida, either Democrats or Republicans could seek to nullify the result if it has not gone their way.
If Florida cannot produce a winner of that state's electoral votes and does not vote in the Electoral College, that alone could prompt some in Congress to try to reject the Electoral College's choice of a president.
"The fact that Congress is authorized to count implies the power and, perhaps, even the duty not to count," said Michael J. Glennon, a law professor at the University of California at Davis and a leading authority on electoral voting.
"Some discretion inheres in the process," says the professor, the author of a 1992 book about the Electoral College, "When No Majority Rules."
That book, now out of print, is being rushed into a new printing by its publisher.
Federal law sets only one standard to guide Congress' action: An elector's vote for president can be rejected by Congress if it was not "regularly given," a phrase that is not defined and has never been tested in court.
"What that means," Glennon said, "is anybody's guess."
As a result, he said, uncertainty will surround the congressional tally this time.
Assume that Florida finds a way to choose the 25 electors who will cast that state's votes when the Electoral College gathers at meetings in each state that are scheduled for Dec. 18.
Whether electors pledged to George W. Bush or to Al Gore wind up being chosen in Florida, the votes that the Florida electors cast for president will be sent to Congress.
On Jan. 6, the two houses of Congress will meet jointly to count the votes. Vice President Gore, as the president of the Senate, will preside. This will be the new Congress, including those chosen Nov. 7. Thus, it will be closely divided in the House and Senate between Republicans and Democrats, with a minuscule Republican majority in the House and maybe none in the Senate.
The lawmakers will examine the certified electoral votes, one state at a time. After the votes have been tallied, Gore will announce the totals for himself and for Bush.
At that point, the vice president is to call for "objections" to any state's chosen electors. If at least one member of the House and one member of the Senate together submit an objection that is spelled out "clearly and concisely," the House and Senate would individually decide whether to accept the objection. An objection can be made to an individual elector or, more likely, to a whole slate from one state.
Under federal law, "the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been ... regularly given." Since that language was written in the 1887 law, Congress has never rejected an electoral vote for a failure to have been "regularly given," Glennon said.
Unless both houses agree, no objection can be sustained. In that case, the electoral votes sent in by a state would be counted as sent in. If an objection was approved by both houses, it is unclear, Glennon said, what majority of electoral votes a presidential candidate would need to win.
It depends, he said, on the reasons for the objection. If the objection claims that all of a state's electoral votes were seriously tainted, that number might be subtracted from the total of 538 and a winner of a majority of the remaining votes would be president.
Glennon said no objection is likely to be upheld this time because the House and Senate are so closely divided. Still, the possibility exists, and that might be enough to maintain some suspense.
