Disputed Presidential Elections and the Collapse of Constitutional Norms
100 Pages Posted: 13 Nov 2018 Last revised: 1 Feb 2022
Date Written: November 12, 2018
This Article exposes the vulnerabilities of the legal framework governing Congress’s role in resolving disputed presidential elections: the Electoral Count Act of 1887. The constitutional and statutory framework for resolving such disputes remains largely untested in courts and only inconclusively examined by scholars, even after the calamitous events of January 6, 2021. That unsteady legal foundation could result in an even more explosive conflict in 2024 and beyond, fueled by increasingly vitriolic political polarization and constitutional hardball. The Article provides a comprehensive account of the vulnerabilities in current law that leave the process susceptible to election subversion and a detailed analysis of how the law might be modernized to steel it against that manipulation in a time of collapsing constitutional norms.
The Article first illustrates just how easy it could be for unscrupulous political actors to reverse the results of a presidential election by exploiting the Act’s weaknesses. It maps out four ways in which politicians in state legislatures and Congress could execute that reversal: Post-Election Direct Appointment; the Two-Chamber Congressional Override; the Swing State Governor’s Gambit; and the Nationwide Governors’ Gambit. In each case, political actors playing constitutional hardball could execute the strategy while staying within the strict bounds of the law by abandoning informal constitutional norms. Drawing on historical data, it demonstrates that the losing party could have used one of these strategies to steal the presidency in 9 of the 34 elections since 1887 and the opposing party would have been powerless to stop the theft. It concludes with a realistic risk assessment of the 2024 presidential election, showing that the most pressing risk comes from manipulation by a governor and the House, not from the two chambers of Congress concurrently voting to reject a legitimate slate of electors.
The Article then offers a blueprint for a redesigned Electoral Count Modernization Act that protects the process of presidential elections, as well as it can, from that exploitation. It analyzes the many choices Congress faces in crafting such a law, including how to allocate legal authority among states, Congress, and courts, and how to design dispute resolution procedures in Congress when it counts the votes in the Electoral College. The exceptional nature of that problem, in which states, Congress, and the Vice President play sui generis roles not found elsewhere in the architecture of the Constitution, requires a unique legal framework that poses unprecedented constitutional questions.
Keywords: Constitutional Law; Law of Democracy; Voting Rights; Election Law
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