WASHINGTON – Despite all the vows of "never again" after the Florida fiasco of 2000, the scary scenarios for Election Day 2004 seem only to have increased: A tie vote in the Electoral College (search). A terrorist strike on Election Day. A disputed outcome in a critical state.
"When we talk about it around here, we just sigh," says Walter Berns, a scholar at the American Enterprise Institute and an expert on the Electoral College. "I just hope it's a clear victory so we don't have Florida all over again all over the place."
With the electorate sharply divided, the chance of a deadlock in the Electoral College seems all the more real this time after the long-in-limbo outcome of 2000. The National Archives offers an "Electoral College calculator" on its Web site so armchair prognosticators can see just how easy it could be to have the candidates come out even.
For example, if just New Hampshire and Nevada (or West Virginia) shifted from favoring Bush to the Democrats this time, there could be a 269-269 tie, leaving it to the House to pick the next president and the Senate to pick the new vice president come January.
That would leave open the jarring possibility of a Bush-Edwards or Kerry-Cheney pairing, depending on the political leanings of the new House and Senate.
More likely is the chance that results from one or more states could be up in the air for a while because of a recount, challenges to provisional or absentee ballots or lawsuits related to other voting problems. Both parties have lawyers primed to pounce at any target of opportunity this time. And the opportunity for challenges has grown under a new federal law requiring all states to allow people to cast provisional votes if their names don't appear on registration rolls.
"With objections raised and legal teams in place, we could have a hell of a fight," said Thomas Mann, a presidential scholar at the Brookings Institution.
Michael White, the federal official responsible for coordinating certain aspects of the Electoral College, says he'll be keeping an especially close eye on Colorado, where voters are considering a referendum to divide the state's electoral votes proportionally among the candidates rather than using the existing winner-takes-all formula. A lawsuit is virtually guaranteed if the referendum is approved, meaning the state's nine electoral votes could be a lingering question long after Election Day.
"That's kind of the nightmare scenario, having the whole thing up in the air on election night," White said.
Another quirk involves "faithless electors," who refuse to cast their electoral votes for the person chosen by their state's voters. This rarely happens — only 10 times in history — but even one this year could be critical. And one of the five Republican electors from West Virginia is holding out the possibility of withholding his vote for Bush if the president carries the state.
The notion of a split decision between the popular vote and the Electoral College tally, which seemed rather unlikely before 2000, now is almost old hat. Mann, for his part, hopes that if this election splits the opposite way from 2000 — with Bush winning the popular vote and Kerry the electoral count — it might ignite a movement to junk the Electoral College altogether.
The idea got some traction after the 2000 vote, but lost momentum when small states raised objections and got sidelined altogether when priorities shifted after the attacks of Sept. 11, 2001.
Those attacks, meanwhile, have given rise to a whole new catalog of nightmare scenarios associated with terrorism. The notion was reinforced when 191 people in Madrid were killed in terrorist bombings last March just three days before Spain's elections.
Most people have forgotten, if they ever knew it, that 9/11 was a local election day in New York City. Gov. George Pataki postponed the balloting for two weeks.
It would be a far more complicated matter to postpone presidential voting in all or part of the nation.
AEI scholars John Fortier and Norman Ornstein have written a paper for Election Law Journal on the implications of a terrorist attack any time between the presidential primaries and Inauguration Day. They find troubling gaps in the procedures for handling such situations, and say the federal government, national political parties and the states all have work to do.
For example, they write, if a terrorist attack at the Inauguration killed the new president and vice president as well as top members of Congress, the line of succession would lead to the Cabinet, but the new president's Cabinet wouldn't have been nominated yet and the old president's team could well have resigned as of noon on Jan. 20. Their proposed fix: have the out-going president nominate one or more members of the incoming president's Cabinet in advance, so Congress could confirm them a few hours ahead of the Inauguration. Then one of those people could be sent away to ensure someone was safe.
Fortier and Ornstein scold those who say that even exploring the possibilities of an election-related attack could heighten the risk of one happening.
"Dismissal of these problems or failure to think about this is irresponsible," they write. "Scenarios we would have dismissed a few years ago as the stuff of Tom Clancy novels are all too real."