Presidential Control Over Disputed Elections
81 Ohio State Law Journal Online 215-18 (2020)
4 Pages Posted: 2 Sep 2020
Date Written: August 17, 2020
An election that is “disputed” lacks two qualities after Election Day: a clear winner and a concession. These elections instead depend on legal processes — recounts, court proceedings, and more — for resolution. As a result, when a sitting President, running for reelection, becomes immersed in a disputed presidential election, he potentially enjoys an advantage over his opponent. He can attempt to exploit the powers of the presidency to push these legal proceedings in his favor. As a practical matter, this advantage can be formidable. A sitting president can resort to his extraordinary bully pulpit, for example, to influence public sentiment. This advantage shrinks, however, with respect to the President’s official powers — the legal authorities that the President can wield by virtue of his role in government. Here, a sitting President’s advantage over his opponent, at least after Election Day, is slight. As this Essay explains, the President’s powers over a disputed presidential election are not primarily legal in nature; they are political. And, accordingly, so are the means to push back.
This essay was an invited contribution to the Ohio State Law Journal’s online Election Law Roundtable.
Keywords: Congress, President, Separation of Powers, Elections, Administrative Agencies, Administrative Law, Voting
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