Preparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management
54 Pages Posted: 3 Sep 2019 Last revised: 5 Mar 2020
Date Written: August 31, 2019
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
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