Administering Presidential Elections and Counting Electoral Votes After Trump v. Anderson

Abstract

In the landmark case Trump v. Anderson, the Supreme Court unanimously held that states lack the unilateral power to exclude presidential candidates from the ballot on the basis of Section 3 of the Fourteenth Amendment. But while the Court was united in its essential holding, the justices fractured in their reasoning, leaving significant questions about Congress's role in enforcing Section 3 against presidential candidates.

This Article examines the fault lines in Trump v. Anderson and analyzes how Congress’s power to count electoral votes under the Twelfth Amendment intersects with its authority to enforce Section 3 of the Fourteenth Amendment. It argues that while Congress holds the power to refuse to count electoral votes cast for a candidate it deems ineligible, it should refrain from exercising that power in presidential elections in contentious cases unless it has provided clear rule to ascertain ineligibility well before the election. The Article further contends that if Congress does exclude a winning candidate on the basis of Section 3, it cannot simply declare the second-place candidate the winner; instead, the election would go to the House of Representatives for a “contingent election.” Exploring the intricacies and implications of the Electoral Count Reform Act of 2022, this Article offers timely insights into a high-stakes issue with the potential to affect the 2024 presidential election and beyond.

Keywords: Electoral College, Presidential elections, Voting, Ballot access, Election law, Presidential primaries, Federal courts, Congress, Twelfth Amendment

JEL Classification: K00, K1, K19