Last Thursday, Congress confirmed Barack Obamas election as president. Thankfully, there was no controversy, as there was the previous two times Congress officially declared a winner. But the procedures for reviewing the Electoral College votes from the states remain deficient a point that should not be lost in all the current commotion over seating Senators.
There are two problems. One is timing, the other institutional.
According to the schedule set by Congress, the Electoral College meets on the first Monday after the second Wednesday in December Dec. 15 in 2008. But mid-December is too early, as we learned in 2000 and are reminded now by Minnesotas disputed Senate race.
The Supreme Court stopped Floridas unfinished recount in 2000 on Dec. 12, so that the state could comply with Congress Electoral College timetable. When Dec. 15 arrived this time, Minnesotas canvassing board had not yet begun to review challenged ballots in the Senate race. That process started the next day.
If Minnesota had been recounting presidential ballots, the clock would have run out long before the board was ready to declare a winner. Neither Minnesota nor Florida is particularly slow in conducting statewide recounts. Washington state in 2004, for example, took until Dec. 30 to certify its gubernatorial election; had its recount halted the day the Electoral College met, the opposing candidate would have prevailed prematurely.
Congress should adjust the schedule: Let the Electoral College vote in early January, with Congress own review several days later. This change would enable states to complete their recounts, with ancillary lawsuits needing to end by this more generous deadline. Yet it would leave enough time for Congress, having monitored events in the states, to pass judgment on the results.
Congress should also create an impartial institution to guide its judgment in contentious cases. In 2000, the Supreme Court intervened because it foresaw a fiasco if the two chambers of Congress, by partisan votes, deadlocked over who won. But no law specifies the court as an impartial arbiter of disputed presidential elections. Nor is the court well-structured for this role, as its 5-4 disposition of Bush v. Gore indicates.
Instead, Congress should designate a three-person panel with one Democrat, one Republican and a third chosen by the first two to serve this function. Absent constitutional amendment, this body would merely advise Congress. Still, its judgment would be difficult to overturn.
Suppose the three were George Mitchell, Bob Dole and David Boren (the third ex-Senator having been mutually selected by the two former Majority Leaders). If these luminaries concurred on which presidential candidate should prevail, any contrary conclusion by Congress would be seen as illegitimate power-grabbing. And experience indicates that this kind of three-person panel, which convenes solely for its single purpose, is more likely to be unanimous than the Supreme Court, with its hardened ideological divisions on topics ranging from abortion to zoning. Minnesota, for example, used this kind of three-person panel to successfully resolve its disputed 1962 gubernatorial election and is following that nonpartisan precedent for its current Senate dispute.
This panel would fill a gap left by the shortsightedness of our Founding Fathers. It is generally known that they had expected the Electoral College to prevent partisanship from affecting presidential elections, and that this plan quickly failed. What is less familiar is that this failure meant the Founding Fathers did not equip the nation with a mechanism for addressing controversies over the counting of ballots cast for presidential electors.
Joseph Story, a leading scholar and jurist of the early Republic, pointed to this omission in 1833: It seems to have been taken for granted that no question could ever arise concerning the regularity and authenticity of the return of electoral votes. After four decades of politics under the Constitution, however, Story observed: It is easily to be conceived that very delicate and interesting inquiries may occur.
Yet the defect identified by Story has never been repaired, and without a fix the nation risks repeating the institutional anxiety that prompted the courts intervention in 2000. It is not enough to eliminate hanging chads, as Minnesota proves. There is always the possibility of some unanticipated problem with the counting of ballots, and if it happens in a presidential election, the institutional question arises: Who will fairly settle the dispute?
Congress, as a partisan body, alone cannot be trusted. But if Congress establishes a structurally neutral tribunal to which it will defer, the nation and the Supreme Court will know that any future fight over who won the presidency will be resolved with the least possible damage to the new officeholders legitimacy.
Thus, as Congress considers proposed electoral reforms in the wake of 2008, including increased early voting and improved voter registration, part of the package should be new procedures for the endgame of presidential elections. Although a formality this year, the endgame will prove all-important again.
Edward B. Foley is a law professor at the Ohio State University and directs its election law program.