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How Dukakis can still be president; and you thought Dan Quayle was next in line.

And you thought Dan Quayle was next in line

It might seem that all is lost for the Dukakis campaign. But there's still a way Sasso & Co. could see their man in the White House.

Assume, as CNN'sBernard Shaw said in the final presidential debate, that George Bush dies before inauguration day. Who would take the oath of office on January 20? Probably Dan Quayle, as Shaw said, but not necessarily. Maybe Bob Dole or another Republican. Conceivably even the Duke. The answer lies in the crevices of the Constitution.

At first reading, a clause of the 20th Amendment seems to be the last word"If, at the time fixed for the beginning of the term of the president, the president-elect shall have died, the vice president-elect shall become president."

But look again. The amendment cannot apply until there's a president-elect-and that's the catch. Shaw spoke of Bush as becoming "president-elect" as soon as the polis closed on November 8. Constitutionally he jumped the gun by more than a month. Until December 19, when members of the electoral college meet in the capitols of their states to cast separate ballots for president and vice president, Bush is just a candidate. And even after that he may still be just a candidate. Some say he doesn't become the official president-elect until January 6, when Congress counts the electoral college ballots.

Consequently, much depends on when Bush dies. If he goes before December 19, the 20th Amendment would not apply. Instead, the Republican National Committee could select a new nominee, as its rules provide. (The Democrats have similar provisions.) Republican electors' pledges would shift from Bush to the new nominee, perhaps primary runner-up Bob Dole. Or the RNC could let things be, assuming that GOP electors would vote for the late Bush and under the 20th Amendment Quayle would become president-elect.

But let's suppose the electors are less than delighted by the idea of Dan Quayle as Commander in Chief. Although electors are pledged to abide by the popular vote in the state, only a handful of states provide criminal penalties for violators. Just eight electors out of more than 16,000 have ever broken their pledges. But the prospect of Quayle in the Oval Office might make party faithful think hard before casting their ballot.

If Bush dies, it's not hard to picture electors-Republicans and Democrats alike-conferring privately before December 19 to settle on a new candidate. They would not be completely unconstrained. Congress has the statutory option to reject any electoral vote that is not "regularly given," and nobody knows what that means. To be safe, the electors would have an incentive to rally behind someone popular in Congress. Someone like, say, Minority Leader Dole.

But suppose Bush buys it on Christmas Eve; while he's decorating the tree, a shock turns his body into a thousand points of light. In the period between December 19, when the electors vote, but before January 6, when Congress counts the electors' ballots, the succession issue is more complicated. The outcome would hinge on a crucial question: Who has the power to create a president-elect, the electors or Congress?

The case for a December 19 president-elect rests on the argument that Congress's counting task is inconsequential. The electors do the picking and Congress rubber-stamps their choice. This was the view of the congressmen who wrote the 20th Amendment. If it prevailed, the 20th Amendment would apply and J. Danforth Quayle would become president-elect.

But there's a strong case to be made that Congress creates the president-elect on January 6. According to this argument, the framers of Article 11 and of the 12th Amendment (which set out the process for electing a president) gave Congress a quasi-judicial checking function, ensuring that electoral ballots are valid. Congress played a decisive role once. In the 1876 presidential election four states sent dual sets of electoral ballots, and the outcome turned on which sets were legitimate. Congress decided the issue (albeit by passing the buck to a special commission) and gave the presidency to Rutherford B. Hayes. Although Congress subsequently delegated some of this confirmation task to the states, the ultimate responsibility seems to remain with Congress. Walter Berns, a constitutional scholar who has written a book on these nuances, believes that no president-elect exists until Congress has done its job.

If Berns is right, Michael Dukakis still has a chance. Congress could choose to reject votes for the late George Bush. There's even an argument that they would constitutionally be forbidden from announcing a dead president-elect. It doesn't take a liberal judicial activist to see that the constitutional requirements for the presidency-natural-born citizen, age 35 or over, at least 14 years a resident of the United States-could reasonably be interpreted to require a pulse.

If Congress couldn't certify votes for Bush, then the presidential choice would fall to the House of Representatives. Under the 12th Amendment, if no candidate receives a majority of electoral votes, the House must "immediately" select the president-elect ftom the top three finishers in the electoral college. But with a dead Bush out of the running, and with no electoral votes for minor-party candidates, the House would be left with one choice: Michael Dukakis.

The 20th Amendment allows Congress to pass a law for this contingency-for instance, a way to generate a new candidate to replace a dead one-but Congress has never gotten around to it, and it's doubtful whether Jim Wright would be in a rush to sponsor one. Even if Congress hurriedly gave the House a Republican alternative, Dukakis theoretically could still end up in the Oval Office. When the House chooses a president, each state's delegation gets one vote, with a majority of votes (26) required to win. If the members voted strictly by party (they probably wouldn't), Dukakis would become president-elect.

During this time, Quayle presumably would be the vice president-elect, his electoral votes having raised no problems in Congress. If the House were still trying to settle on a president-elect on January 20, Quayle would take office until the members reached a decision. The House might put the matter aside and let Quayle hold the office so long as he behaved himself. It would be the ultimate bargaining chip.

George Bush, of course, is about as healthy a 64-year-old as you can find. But he is 64 and presidents do have a way of dying. In light of how three recent presidents were elevated to the White House-Truman, Johnson, and Ford-it's not impossible to imagine a constitutional skirmish between now and inauguration day. If that happened, the final decision would lie with the judiciary.

A congressional committee declared in 1882 that "a hundred years may pass without the necessity of a resort to the courts in a presidential election." Time's up. For the next few weeks, Dan Quayle and the presidency are separated not only by a heartbeat, but also by a lawsuit.
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Title Annotation:Michael S. Dukakis
Author:Bates, Stephen
Publication:Washington Monthly
Date:Dec 1, 1988
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