Authored by John Yoo and Robert Delahunty via AmericanMind.org,
Conservatives and liberals agree on few things, but one of them is that the country may well see an election crisis this year. All of the ingredients seem to be present: a closely and bitterly divided electorate; the threat of violence and disruption on Election Day or after; and the unusual circumstances of the Covid-19 pandemic.
In this essay we provide a short roadmap through the main legal and constitutional issues that could arise if Election Day fails to result in a clear winner of the presidency, identify opportunities for political mischief, and explain why the weight of the constitutional structure favors President Donald Trump in a contested election.
Unusual Circumstances
A crucial fact in this year’s election is that, largely because of COVID, an unprecedented number of voters will vote by mail. According to the Washington Post, 84% of the electorate, or 198 million eligible voters, will be able to vote by mail this year. In the 2016 election, roughly 25% of the votes were cast by mail. This year, as many of half the ballots may be mailed in.
Republicans tend to prefer voting in person while Democrats tend to prefer absentee balloting. In the swing state of North Carolina, Democrats requested 53% of the absentee ballots and Republicans 15%. A July poll reported that 60% of the Democrats in Georgia, but only 28% of the Republicans, are likely to vote by mail.
Counting mailed votes could make a decisive difference on Election Day. In the 2012 election, Barack Obama bolstered his winning margins substantially in swing states like Florida, Michigan, Ohio and Pennsylvania through overtime votes. Hillary Clinton picked up tens of thousands of overtime votes in 2016, though not enough to win. Last April, over 79,000 Wisconsin ballots arrived after election day (and were counted by court order) in a state that Trump carried in 2016 by about 23,000 votes. In Michigan’s August primary, 6,405 ballots missed the deadline and were not counted; Trump carried that state by 10,000 votes.
In one plausible scenario, Trump appears to be the winner on the morning after Election Day, but a “blue wave” begins in the days and weeks after, and Biden claims a belated, overtime victory.
Both Democrats and Republicans have sought either to enlarge or restrict the opportunities for absentee voting. A massive amount of litigation is already taking place. At last count, 279 Covid-related election cases are currently underway in 45 states, the District of Columbia, and Puerto Rico—and that tally does not include other litigation over other election issues.
Vote-counting problems—and the litigation they will generate—do not end once deadlines are decided. States must match signatures on ballots to those on voter rolls and verify that each ballot is valid. Although some key states permit pre-Election Day verification, others do not. Pennsylvania, Wisconsin, and Michigan were among the latter. “Real problems will emerge here,” Karl Rove has warned, “especially when there’s a big increase in mail-in ballots over 2016.”
In Pennsylvania, for example, 84,000 people voted by mail in the 2016 primaries; in 2020, 1.5 million did. In the best of circumstances, matching signatures on mail-in ballots to those on file with the state (from voter registration, ballot applications, or the DMV) is not, to the untrained eye, an easy task. Repeated and time-consuming challenges to the verification process will delay a final, official count.
The Electoral Count
Delayed election results could mean much more than the inconvenience of waking up on November 4 and not knowing who is President. They could trigger a constitutional crisis that would shake the country to its foundations.
An old federal statute, the Electoral Count Act of 1887, establishes deadlines for the states to report their official results and for the 538 members of the Electoral College to meet. The latter date this year is December 14, or 41 days after Election Day. The state deadline this year is December 8. The date is a safe harbor: if a state reports in time, Congress will accept its electors. The Act provides that if “any controversy or contest” remains after December 8, Congress will decide which electors—if any—may cast their state’s votes in the Electoral College.
Delays in counting the votes could well encroach on the December 8 deadline. State legislators and governors might come under mounting pressure to designate electors on their own if the popular vote remains incomplete, especially if there are allegations of fraud or abuse. Article II of the Constitution provides that “each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.” The time when state legislatures directly appointed electors themselves are long gone: since the 19th century, states have delegated that power to their voters. But as the Supreme Court noted in Bush v. Gore, a state “can take back the power to appoint electors.”
The constitutional question is not whether but how a state legislature could reclaim the appointment of electors. States have provided by statute for the selection of their electors by their voters; therefore it one might argue they may only resume that power with a second, superseding statute. On the other hand, the Constitution specifically designates state legislatures, rather than the executives or a combination of the two, to choose the electors. A state legislature might argue that a past legislature-and-governor cannot constrain its discretion to choose electors today. Is it likely that state legislatures in battleground states could reclaim their constitutional power before the December 8 deadline looms? Probably not.
While Republicans control the state legislatures in six key battleground states, only two of those states also have Republican governors (Arizona and Florida). In four other contested states Republicans control the legislature, but Democrats control the executive: Michigan, North Carolina, Pennsylvania, Wisconsin. Only if the Constitution allows state legislatures, acting without the governor, to choose the electors, could those states cast electoral votes in a disputed popular election.
But there is another scenario in which the state legislatures could designate electors if litigation held up a definitive accounting of the popular vote. This requires a closer look at the Electoral Count Act.
The Act contemplates a post-election period in which states have the opportunity to resolve any “controversy or contest” in accordance with their pre-election law through “judicial or other methods or procedures.” Once this process has reached a definitive conclusion or “final ascertainment,” the governor is then to certify the electors. But the Act presupposes that all such controversies or contests have run their course before the governor submits the certified list of electors. What if December 8 is at hand and the controversies are still going on?
Another provision of the Act could come into play. If a State has held an election on November 3 “and has failed to make a choice” by the December 8 deadline, the Act declares that “the electors may be appointed on a subsequent day [after Nov. 3] in such a manner as the legislature of such State may direct.” That failure could arise from fraud, uncertainty, ongoing recounts or litigation. In those circumstances, a state could be said to have “failed” to make a choice, and its legislature could pick the electors.
That analysis presumes, however, that the Act is constitutional. The founders anticipated the possibility that the Electoral College would fail. In fact, they may not have foreseen political parties that would present the same presidential candidates in every state. Instead, several Founders seem to have thought that the states would often propose local favorites, that the Electoral College would reach no majority in the face of multiple candidates, and that the election would have to go to a backup procedure.
No candidate may win in the Electoral College for less noble reasons as well. Suppose states send electoral votes that—even if certified by the governor—remain under question, whether because of fraud in the vote, inability to count the ballots accurately under neutral rules, or a dispute between branches of a state government.
While the Electoral Count Act appears to create safe harbors for a state’s report of its Electoral College votes, the Act itself might prove unconstitutional. Under the 12th Amendment, “the President of the Senate [i.e., the Vice President] shall, in the Presence of the Senate and House of Representatives, open all the certificates [of the electoral votes of the states] and the votes shall then be counted.” Left unclear is who is to “count” the electors’ votes and how their validity is to be determined.
Over the decades, political figures and legal scholars have offered different answers to these constitutional questions. We suggest that the Vice President’s role is not the merely ministerial one of opening the ballots and then handing them over (to whom?) to be counted. Though the 12th Amendment describes the counting in the passive voice, the language seems to envisage a single, continuous process in which the Vice President both opens and counts the votes.
The check on error or fraud in the count is that the Vice President’s activities are to be done publicly, “in the presence” of Congress. And if “counting” the electors’ votes is the Vice President’s responsibility, then the inextricably intertwined responsibility for judging the validity of those votes must also be his.
If that reading is correct, then the Electoral Count Act is unconstitutional. Congress cannot use legislation to dictate how any individual branch of government is to perform its unique duties: Congress could not prescribe how future Senates should conduct an impeachment trial, for example. Similarly, we think the better reading is that Vice President Pence would decide between competing slates of electors chosen by state legislators and governors, or decide whether to count votes that remain in litigation.
The Role of the House
If the electoral count remains uncertain enough to deprive either Trump or Biden of a majority in the Electoral College, then the 12th Amendment orders that “the House of Representatives shall choose immediately, by ballot, the President.” Our nation barely avoided that outcome 20 years ago in the 2000 Florida recount and has only used twice it in our history (in 1800 and 1824). So if the disasters described above occur, then the Constitution gives the power to choose the President to the House.
So it seems like Nancy Pelosi and the Democrats would get to pick the winner. But not so fast, said the framers, who feared congressional control of the executive. Rather than allow a simple majority vote, the Constitution requires that the House choose the President by voting as state delegations. If the House decides the Presidency, Delaware would have the same number of votes as California.
This unusual process makes sense in light of the larger constitutional structure. The Framers rejected the idea that Congress should pick the President, which they believed would rob the Chief Executive of independence, responsibility, and energy. They wanted the people to have the primary hand in choosing the President, but mediated through the states, because they also feared direct democracy.
Thanks to Republican advantages among the states (rather than the cities) the current balance of state delegations in Congress favors Republicans by 26-23 (with Pennsylvania tied). If today’s House chose the president, voting by state delegations, Trump would win handily.
But there is another twist. The 20th Amendment to the Constitution seats a new Congress on January 3, but does not begin the term of a new president until noon on January 20. The new Congress chosen in the 2020 elections, rather than the current Congress, would choose the President. Even though Republicans currently have a majority of delegations, Democrats have narrowed the gap—after the 2016 elections, Republicans had held a 32-17 advantage in state congressional delegations. If Democrats can win one more congressional seat in Pennsylvania and then flip one more delegation, they could achieve a 25-25 tie in the House. Then the election would require political bargaining of the most extreme kind for the House to resolve a disputed presidential election.
First Constitutional Backup
Suppose the House cannot agree, which could well happen given the polarization of our politics. The Constitution even provides for this. If the House splits 25-25 between Trump and Biden, then the 20th Amendment elevates the Vice President-elect to the Presidency.
Under the 12th Amendment, when the Electoral College fails, the Senate chooses the Vice President. Unlike the House procedure, the Senators each have one vote, meaning that under the current balance in the upper chamber, 53 Republicans would choose Mike Pence to effectively become the next President. But, as with the House, it is the Senate chosen by the 2020 elections, rather than the 2018 elections, that will choose the Vice President. On November 4, we may well learn who will win the Presidency—because control of the Senate is also at stake.
Suppose that this November, Democrats take three Senate seats—those in Arizona, Maine, Colorado, and North Carolina, while losing Alabama—and the Senate divides 50-50. Could Pence, as the sitting President of the Senate on January 3, break a tie in the Senate in his favor to make him Vice President on January 20, 2021, and hence President due to the inability of the House to break its own deadlock? It appears that this is the case; Article I, Section 3 of the Constitution says the Vice President “shall have no Vote, unless [Senators] be equally divided.” It does not restrict the Vice President’s tie-breaking vote to some functions of the Senate but not others. In those extreme circumstances, Pence might recuse himself, but the Constitution would not require it.
Second Constitutional Backup
Suppose then the House, Senate, sitting President, and even Vice President Pence decide that he should not use that tie-breaking power. Then the Constitution’s backup system for the Electoral College will have failed.
That still leaves a second backup system. Article II of the Constitution states that in “the Case of Removal, Death, Resignation or Inability” of both the President and Vice President, Congress can declare “what Officer shall then act as President” until the disability ends or a new President is elected. Don’t forget that word, “Officer,” because it may make all the difference.
Under the current federal succession statute, Congress decided that congressional leaders should assume the Presidency. Speaker of the House Nancy Pelosi sits first in line, followed by the President pro tem of the Senate, currently Chuck Grassley. From there, the line of succession continues to Secretary of State Mike Pompeo, and then the other cabinet members.
But, as Yale law professor Akhil Amar persuasively argued in 1995 (at the prospect of Newt Gingrich becoming President should Congress impeach Bill Clinton!), this part of the federal succession statute likely violates the Constitution. Notice that Article II requires that the Presidency pass down to an “Officer.” The Constitution generally—but not always—refers to “Officers” as members of the Executive Branch. Further, the Incompatibility Clause of the Constitution prohibits Members of Congress to hold executive office. Neither Nancy Pelosi nor Chuck Grassley can become President. Mike Pompeo would become President—an outcome so unusual, so unexpected, it just might fit our bizarre times.