Questions abound as to what will happen if Florida is still embroiled in skirmishes over pregnant chads — a term that should be stricken from the recount process at least as quickly as it should be stricken from the English language — when the December 18th deadline to deliver electoral votes rolls around. While the prevailing opinion is that an electoral deadlock would force Denny Hastert into the role of acting president, the actual acting president could be none other than George W. Bush.
With Iowa, New Mexico, Wisconsin, and Oregon all currently close enough to follow the ignominious lead of Florida, there is a reasonable chance that neither candidate will have a majority of the Electoral College on January 6th when the votes are counted by Congress. Reaching an electoral majority could be further thwarted by electors crossing party lines, or by congressional members contesting particular electoral votes, as they did in the Hayes v. Tilden race of 1876 (and as is expressly provided for by federal law).
Accordingly, if neither candidate musters an electoral vote majority, then the presidential race goes to the House, where each state gets a single vote. The House has until January 20th — inauguration day — to select the president. If they fail to do so, the Succession Act, passed pursuant to the 20th Amendment, provides that the Speaker of the House shall step down from the position of Speaker and become acting president.
The question remains: who will be the Speaker? The assumption is that it will be Denny Hastert, the current Speaker. But if the last week has taught us anything it is not to assume. Indeed, there are serious disadvantages to re-electing the current Speaker only to force him to lose his seat in exchange for becoming a future Jeopardy answer.
If not Hastert, then which member of Congress should become Speaker? One possible answer is: no member of Congress. A brief review of high school civics should remind us that the Speaker of the House need not be a member of Congress. The Constitution provides that “The House of Representatives shall chuse their Speaker…,” but does not attach any requirement of elected House membership, an arcane fact that the Office of the Clerk of the House acknowledges on their website.
Accordingly, the Republican Congress could by a simple majority elect anyone — including George Bush — to the position of Speaker, and on January 20th the Speaker would become acting president. Furthermore, in an election where every question appears to be headed to the court, the selection of Speaker is so clearly immune from judicial scrutiny because of the deference due to Congress in such matters that any legal challenge would be quickly shown the door.
If any semblance of civility prevails, this will remain simply an interesting hypothetical. If, however, Gore supporters seek to prevent the full Electoral College from casting their votes, then the result may be to make George Bush acting president by first making him Speaker.