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Congressional Power Over Presidential Elections: Lessons from the Past and Reforms for the Future

76 Pages Posted: 17 Nov 2009  

Edward Larson

Pepperdine University School of Law

Dan T. Coenen

University of Georgia Law School

Date Written: 2002

Abstract

Presidential election controversies are nothing new. They have plagued our republic since 1801, when the fourth election for the office ended in a muddle that nearly deprived the rightful winner of the presidency. Each controversy has led to calls for reform. In every instance, the cryptic and troublesome constitutional text has hampered congressional efforts to correct the problems. Simply stated, the Constitution offers little explicit guidance on when and how Congress can regulate the selection of the President. In this Article, Professors Larson and Coenen explore the implications of this textual deficiency; looking both at what Congress has done in the past and at what it might do now. Their central message is that our federal leaders should learn from the past. Congress should address with visionary legislation the gravest problems that surfaced in the 2000 presidential election to ensure they do not reoccur in the future.

Part I of the Article highlights relevant features of the constitutional text. Part II explores how Congress reluctantly but successfully used this text to enact significant reform legislation in response to the Hayes-Tilden election debacle of 1876. Part III identifies some reforms that Congress has under consideration to address the problems that complicated the 2000 presidential vote, focusing on measures that would lead to nationwide use of a uniform ballot and federally approved voting devices and machinery. Part IV then examines whether Congress has the power to enact these measures, concluding (in an analysis that covers six possible sources of authority) that it does. Part V urges Congress to wield this power by enacting significant reform legislation in time for the 2004 election.

Keywords: presidential elections, Congress, Constitutional Law, Hayes-Tilden election, Bush-Gore election

JEL Classification: K39, K49

Suggested Citation

Larson, Edward and Coenen, Dan T., Congressional Power Over Presidential Elections: Lessons from the Past and Reforms for the Future (2002). William & Mary Law Review, Vol. 43, No. 3, p. 851, 2002. Available at SSRN: https://ssrn.com/abstract=1507924

Edward J. Larson (Contact Author)

Pepperdine University School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

Dan T. Coenen

University of Georgia Law School ( email )

225 Herty Drive
Athens, GA 30602
United States

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