Preparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management

33 Pages Posted: 3 Sep 2019 Last revised: 4 Sep 2019

See all articles by Edward B. Foley

Edward B. Foley

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: August 31, 2019

Abstract

Congress could face a disputed presidential election triggered, not necessarily by foreign interference, but by the ballots counted after Election Night that cause the initial apparent winner to fall behind. If Congress receives conflicting submissions of electoral votes from the same state, the existing statutory and constitutional provisions for handling this conflict are ambiguous and vulnerable to partisan posturing. Bicameral deadlock, in which the Senate claims one presidential winner while the House claims the other, would resemble the disputed Hayes-Tilden election of 1876 in a way that Bush v. Gore in 2000 did not. This kind of bicameral deadlock, if it lasted until noon on January 20, 2021, would cause serious difficulties in the capacity of the nation to transition from one presidential term to the next pursuant to the rule of law. It is in the nation's best interest to confront this vulnerability now, in order to be in the best possible position to handle this kind of situation if it should arise.

Keywords: Twelfth Amendment, Electoral Count Act, Safe Harbor, recount, inauguration, transition of power

Suggested Citation

Foley, Edward B., Preparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management (August 31, 2019). Loyola University Chicago Law Journal, Forthcoming; Ohio State Public Law Working Paper No. 501. Available at SSRN: https://ssrn.com/abstract=3446021

Edward B. Foley (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States
614-292-4288 (Phone)
614-292-2035 (Fax)

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