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Wednesday, October 27, 2004 - Page updated at 12:34 A.M.

Quirky election scenarios abound

By Dana Milbank
The Washington Post

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WASHINGTON — Could one of these Electoral College nightmares be our destiny?

President Bush and Sen. John Kerry deadlock Tuesday with 269 electoral votes apiece — but a single Bush elector in West Virginia defects, swinging the election to Kerry.

Or, Bush and Kerry are headed toward an Electoral College tie, but the 2nd Congressional District of Maine breaks with the rest of the state, giving its sole electoral vote — and the presidency — to Bush.

Or the Massachusetts senator wins an upset victory in Colorado and appears headed to the White House, but a Colorado ballot initiative passes and causes four of the state's nine electoral votes to go to Bush — creating an Electoral College tie that must be resolved in the U.S. House.

None of these scenarios is likely to occur next week, but they aren't all that far-fetched. Tuesday's election probably will be decided in 11 states where polls currently show the race is too tight to predict a winner. And assuming the other states go as predicted, a computer analysis finds no fewer than 33 combinations in which those 11 states could divide to produce a 269-to-269 electoral tie.

Normally, such outcomes are strictly theoretical. But not this time, with the election seemingly so close and unpredictable. "Fluky things probably happen in every election, but because most are not close, nobody pays any attention," said Charles Cook, an elections handicapper. "But when it's virtually a tied race, hell, what isn't important?" Cook says this election is on course to match 2000's distinction of having five states decided by less than half a percentage point.

Each state has electoral votes equal to the size of its congressional delegation, plus the District of Columbia gets three votes. All but two states award all of their electoral votes to the winning candidate — Maine and Nebraska each award electors by winners in congressional districts, with the overall winner in the state getting the two other votes.

It is still possible that the vote Tuesday will produce a clear winner of both the electoral and popular votes. But if the winner's margin is small — less than 1 percent of the popular vote is a rule of thumb — the odds increase that the quirks of the Electoral College could again decide the presidency and again raise questions about a president's legitimacy.

"Let us hope for a wide victory by one of the two; the alternative is too awful to contemplate," said Walter Berns, an Electoral College specialist at the American Enterprise Institute.

But many political strategists are preparing for a narrow — and possibly split — decision. Jim Jordan, former Kerry campaign manager now working on a Democratic vote-mobilization effort, puts the odds at 1 in 3 that Bush will share the fate Al Gore suffered in 2000: a popular-vote win but an electoral loss. "It's actually looking more and more plausible," he said, citing polls showing a Bush lead nationally but a Kerry lead in many key states.

A repeat of 2000 — Bush losing the popular vote but winning the electoral count — is considered less likely because the president has been boosting his support in already Republican states and reducing his deficit in some safely Democratic states.

Even without a split between the electoral and popular votes, there is room for electoral mischief. To begin with, there are the 33 scenarios under which the battleground states could line up so that Kerry and Bush are in an electoral tie. Even if only the six most contested states are considered — Florida, Minnesota, New Hampshire, New Mexico, Ohio and Wisconsin — the electoral vote will be tied if Kerry wins New Hampshire, Minnesota and Florida while Bush wins the other three.

Under the 12th Amendment, if one candidate does not get at least 270 votes, the decision goes to the House, where each state would get a vote — a formula that would guarantee a Bush victory (the Senate picks the vice president). A House-decided election could produce even more protests than the 2000 election did. That, writes Ryan Lizza of the New Republic, who spelled out 17 scenarios under which the election could end in an electoral tie, is perhaps the only way "for a second Bush term to seem more illegitimate in the eyes of Democrats than his first term."

The possibility of a tie or near-tie in the Electoral College also makes it more possible for individual electors to cause havoc. In West Virginia, one of the state's five Republican electors, South Charleston Mayor Richie Robb, has said he might not vote for Bush (although he calls it "unlikely" he would support Kerry).

And in Ohio, the political publication The Hotline reports, one of Kerry's 20 electors could be disqualified because he is a congressman. Such problems and "faithless electors" have surfaced before, but the elections were not close enough for them to matter.

In Maine, the state appears to be comfortably in Kerry's column. But the state splits its electoral votes based in part on the vote in each congressional district. If Bush wins in Maine's 2nd District, where Kerry has a narrow lead, the president will take one of the state's four electoral votes, a potentially decisive difference. For example, if Bush takes New Hampshire, Ohio and Wisconsin; Kerry gets Florida, Minnesota and New Mexico; and the other 44 states follow recent polls, Kerry will win the election with 270 votes — unless Maine's 2nd District turns against him.

Conversely, Bush is favored to win Colorado's nine electoral votes. But a ballot initiative being decided Tuesday would cause the state's electoral votes to be distributed proportionally — almost certainly meaning five electoral votes for the winner and four for the loser. A federal judge yesterday dismissed a lawsuit that challenged the initiative, ruling that because it was a state issue and not a federal one, he lacked jurisdiction. Polls show the ballot initiative is likely to fail, but if it passes, the presidential election could change with it.

If Bush were to win Colorado along with the key states of New Hampshire, New Mexico and Ohio (and other states followed polls' predictions), he would have 273 electoral votes — but that would fall back to a tie at 269 votes if the ballot initiative passes. Alternatively, if Kerry were to win Colorado and claim Minnesota, New Mexico and Ohio, he would have 272 votes — unless Colorado's ballot initiative returned four votes, and the presidency, to Bush.

Information on the lawsuit against the Colorado initiative was provided by The Associated Press.

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