Professor William G. Ross, Cumberland School of Law, Samford University

It should be obvious to everyone by now that no one ever will know which presidential candidate actually won more popular votes, either in Florida or nationwide. The Florida recount process can never yield an accurate result, for efforts to divine the meaning of the notorious chads are hopelessly compromised by the certainty of ambiguity and the possibility of accident, mistake, and fraud. Similarly, the national count is so riddled with mistakes and allegations of fraud by both sides that it is impossible to say with certainty that Gore won a plurality, even though this may appear more likely than not.

Since voting technology is too primitive to produce a decisive victor, the courts now seem likely to determine the winner. The law, however, is no less unencumbered with ambiguity than are the chads. Rarely have we seen a more perfect example of how different interpretations of the law, each perfectly reasonable on its own terms, can yield opposite results. It is therefore hardly surprising that legal interpretations, even among the general public, are almost perfectly correlated with partisan sympathies. In the absence of any real legal compass, one can hardly blame any judge for permitting party loyalties to determine the outcome of his or her decision.

The result of any judicial determination of the election is likely to be tragic. The winner, degraded by tawdry legal battles and lacking legitimacy in the opinion of half the nation, will have difficulty governing. Embittered supporters of the losing candidate will question the integrity of the political process. The courts will lose prestige, for the sophistry of their rulings will be naked for all to see.

There is, however, a dignified way out of this morass, one that could immediately circumvent all the sophistry about chads and the Florida election manual and would moot speculation about voting fraud or mistake. The candidates could simply agree that each would serve for two years.

The constitutional procedure for such a compromise is clearly permitted by the 25th Amendment. After the candidates decided which man would serve first, the one who would serve later would instruct a sufficient number of his electors to vote for the opposing presidential and vice presidential nominees. Since half of the states permit electors to vote for anyone of their choice, the candidate should not have any difficulty finding a sufficient number of faithful “faithless” electors. The vice president who served the first half of the term would resign after two years, the president would nominate his erstwhile opponent to become vice president, both houses of Congress would confirm the nomination, and the president would then resign.

The prospect of a president resigning in favor of his electoral opponent is not completely unprecedented. In 1916, Woodrow Wilson intended to resign from office if he lost the election to Charles Evans Hughes in order to prevent the nation from suffering from a four-month hiatus of power at a time when the nation needed firm leadership in the face of a growing threat of war. Wilson would have requested the resignation of his vice president and then resigned after appointing Hughes to the office of secretary of state, which by statute at that time would have placed him first in the line of succession.

Although there probably would be no legal way to force the president to resign after two years, public opinion almost certainly would dictate that he honor his promise, especially since the entire nation would have witnessed this pledge. While there likewise would be no legal way to require members of Congress to confirm the nomination of the other candidate to the office of vice president, the two candidates could at least extract informal pledges from members of Congress to cooperate with their compromise. Again, public opinion would almost surely require fidelity to the promises. In order to minimize the likelihood of opposition by persons who are not yet members of Congress, the candidates might arrange for the confirmation of the new vice president in advance of January 3, 2003, when the Congress elected in 2002 will assemble.

The principal practical problem with this arrangement would involve the question of which candidate would serve first. Both probably would prefer to be second insofar as the second president would enjoy the advantage of incumbency in the 2004 election and would enjoy the prospect of as long as ten uninterrupted years in office. On the other hand, the candidate who took office first could perhaps find political advantage in assuming office at a time of deep national division since this would afford the opportunity to play a Gerald Ford-like role of national healer that would nicely position him for a return to the White House after 2004. There might also be some special reason why one candidate might prefer to serve first; perhaps, for example, one would be willing to gamble that the economy would be worse after 2002 or that significant Supreme Court resignations are likely during the next two years.

If the candidates could not agree about who would serve first, perhaps they could arbitrarily settle the question by a sophisticated version of a coin toss. Or, why not an actual coin toss? When two coalitions of parties won equal numbers of parliamentary seats in a Swedish general election a number of years ago, the two sides tossed a coin to determine which side would form a government. If this process resolved a crisis in Sweden, one of the world’s richest and most politically stable nations, it ought to be good enough for the United States. Although some might say that a coin toss would demean the integrity of the presidential election process and mock democracy, it could hardly be more farcical than the process of selecting a president by haggling about flapping chads and the intricacies of Palm Beach County election procedure.

Of course, a split term would have the obvious disadvantage of placing a virtual lame duck into office for the first two years. The first president could not expect to accomplish much legislatively since he would be destined to serve only for two years. But no president is likely to advance any significant legislative program during the coming two years anyway, because Congress is so deeply divided. And at least this president’s legislative program would not be hamstrung by the intense partisan rancor that is likely to haunt anyone who emerges from a protracted legal struggle. The first president also would likely have difficulty in appointing lower federal judges since the opposition party in the Senate could easily kill many nominations by delay, knowing that the new president would probably not re-nominate them during the next session of Congress. Again, however, a crippled president could face even worse opposition in the Senate over any type of nomination.

At first glance, this proposal for compromise seems far-fetched, perhaps even surreal. It is less bizarre, however, than the spectacle of an election in which only protracted litigation resulting in murky judicial opinions interpreting a few hundred hopelessly ambiguous ballots and conflicting laws will prevent the ascension of Strom Thurmond to the presidency if the Speaker of the House, Dennis Hastert, refused to serve. An amicable division of the presidential term would also help to diminish partisan tensions and promote public confidence in the stability, rationality, and maturity of the nation’s leaders.

November 17, 2000 [revised November 28]

William G. Ross teaches Constitutional Law and Constitutional History at Cumberland School of Law, Samford University, Birmingham, Alabama.