Disputed Presidential Elections and the Collapse of Constitutional Norms

88 Pages Posted: 13 Nov 2018 Last revised: 18 Jan 2022

Date Written: November 12, 2018

Abstract

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.

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. The Article therefore considers the
constitutionality of critical features of the proposed Act, addressing
arguments arising from the political question doctrine, the separation of
powers, the Electors Clause, and other constitutional provisions.

Keywords: Constitutional Law; Law of Democracy; Voting Rights; Election Law

Suggested Citation

Seligman, Matthew, Disputed Presidential Elections and the Collapse of Constitutional Norms (November 12, 2018). Available at SSRN: https://ssrn.com/abstract=3283457 or http://dx.doi.org/10.2139/ssrn.3283457

Matthew Seligman (Contact Author)

Yale Law School ( email )

127 Wall Street
New Haven, CT 06510
United States

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