Three-Month Period Imperils Presidency

Posted November 1, 2004 at 6:36pm

Much talk in the past few weeks has focused on whether fraud or voter suppression could prevent the rightful winner from assuming the presidency.

But as voters head to the polls today, the country embarks on a period of arguably more profound risk than even those scenarios contemplate. Electoral ambiguities ensconced in the Constitution and exacerbated by federal law put the United States nearly alone among nations in the length and severity of the vulnerabilities between Election Day and the president’s Jan. 20 inauguration.

The next 78 days provide at least three distinct periods of potential peril should both members of the winning ticket die or otherwise sustain a debilitating attack. The risks culminate with Inauguration Day itself, when Congress’ own continuity plan, or lack thereof, and that of the executive branch could coalesce to create an almost unfathomable constitutional crisis.

Unpleasant as it may be, this article attempts to highlight the biggest gaps in the electoral system and the proposals that have been suggested to fix them.

Nov. 2 to Dec. 13

By statute, electors meet and vote on the first Monday after the second Wednesday in December — this year, Dec. 13.

If the winning ticket were to be killed in the 41 days after the election, the appropriate political party could simply nominate new candidates. The power to choose a new slate is enumerated in the rules of both the Democratic and Republican national committees, although the GOP’s rules spell out the process more clearly.

The electors, of course, would not be bound to the wishes of their party, but presumably most would accept the new candidates as a substitute ticket, argue American Enterprise Institute scholars John Fortier and Norman Ornstein (a Roll Call contributing writer) in an upcoming article in Election Law Journal.

“The electors are all loyal party people selected by the parties at the conventions,” Fortier said in an interview. “It is very likely if there was a signal sent by the parties to follow along” that the electors would vote for the new candidates, even though “there is nothing forcing them to do that.”

Dec. 13 to Jan. 6

The next period has many more potential vulnerabilities, and the outcome of an attack or crisis that results in the death or incapacitation of the winning ticket is less clear.

Until Jan. 6 — when Congress, by law, counts the votes of the presidential electors — there is not officially a president-elect and a vice president-elect. How Congress would handle the death of both winners is not outlined in either the Constitution or federal law.

Congress could count the electoral votes of the winning candidates, even if they were deceased. Such an action would create vacancies for both the president and vice president on Jan. 20 and trigger the Presidential Succession Act of 1947.

But the clarity of this process could be undercut by a less-than-optimal result. Consider, for example, if the Democratic presidential candidate, Sen. John Kerry (Mass.), and his running mate, Sen. John Edwards (D-N.C.), were to win and the Republicans were to maintain control of the House. In that case, Speaker Dennis Hastert (R-Ill.) would be offered the right to become president for the full four-year term, contingent upon his resignation from the House. If Hastert chose not to take the job, it would fall to the Senate President Pro Tem, currently Ted Stevens (R-Alaska).

Alternately, Congress could refuse to count the electors’ votes. Federal law outlines procedures for objections — in this case presumably because the winning candidates were no longer living — but “there is no clear answer as to what Congress should do with electoral votes for deceased candidates,” according to Fortier and Ornstein.

Precedent exists for Congress not counting ballots of a deceased candidate. In 1872, Democratic candidate Horace Greeley — whose ticket lost the election — died before the electors cast their ballots. Three electors voted for Greeley, but Congress refused to count them.

If, for whatever reason, Congress were to refuse to count the votes for the winning but deceased ticket, no candidate would garner the necessary majority of electors appointed, and the decision would boomerang back to Congress via the 12th Amendment.

That amendment stipulates that if no one collects a majority of electoral votes for president, the House is to choose among the top three votegetters. Thus, in this case, Congress would effectively overturn the election by choosing the losing major-party candidate or even a third party’s nominee.

The Senate, in turn, would choose the vice president from the top two finishers. Theoretically — and perhaps likely in an era when neither party has an overwhelming majority in either chamber — the Senate could choose a candidate for vice president of a different party than the House chose for president.

Regardless of what Congress does, however, in either case there exists a strong likelihood of events that would essentially overturn the people’s choice at the polls.

In the scenario in which Kerry-Edwards win the election only to die before the electoral votes are counted, Congress could count their electoral votes anyway, elevating Hastert to the presidency. Or Congress could decide the election under the 12th Amendment, and, having decided not to count Kerry and Edwards’ votes, choose President Bush and Vice President Cheney — even though they lost the election.

So, Congress could either choose the losing ticket or allow an individual who wasn’t on the ballot to become president. Either way, the electoral system as now structured would allow a democratic election to be turned on its head.

Jan. 6 to Jan. 20

After Congress counts the electoral votes Jan. 6, the winning candidates are officially the president- and vice president-elect. As such, their deaths would trigger the 20th Amendment.

If the president-elect were to die, the vice president-elect would become president and serve the full four-year term. If both were to die during this time, the Presidential Succession Act would kick in and revive the situation in which the Speaker (or the Senate President Pro Tem), possibly of a different party, becomes president for four years.

Possible Fixes

Recently, Rep. David Price (D-N.C.) introduced a bill that would reduce the vulnerability between when the electors meet and when Congress counts their votes by dramatically shortening the period between the two dates.

His motivation, however, had more to do with allowing adequate time to resolve a contested presidential race in one or more states.

Under Price’s plan, in the event of an “unresolved controversy” the electors wouldn’t meet until January, just before Congress counts the votes. This would have prevented the Supreme Court from intervening in the 2000 recount under the auspices of the “safe harbor” provision. Under federal statute, if a state appoints its presidential electors at least six days before the electors vote, its electors cannot be overturned. In Bush v. Gore, the high court believed that the recount had to be halted because it could not be completed by the “safe harbor” date that would ensure the legitimacy of Florida’s electoral votes.

Although Price was motivated by the turmoil following the previous presidential election — and inspired by a proposal originally drafted by election expert Leonard Shambon of the law firm Wilmer Cutler Pickering Hale and Dorr — his plan would also dramatically cut the period of greatest electoral vulnerability.

“The more I talked to people the more I realized that it could be addressed and should be addressed,” Price said in an interview.

“This is not something that has been thoroughly discussed, although it should be. I think the date that’s set in the statute in terms of the safe harbor provision is rather arbitrary, really.”

It would not be unprecedented to tinker with key election dates. Indeed, Congress has changed dates within the electoral process five times, most recently in 1934. The administration of Franklin D. Roosevelt recommended that the period between Election Day and the meeting of electors be 41 days, which records indicate was a rather capricious choice by a government attorney. Without legislative explanation, Congress went along with it, according to Shambon.

As for moving the date of the electors’ meeting, Price doesn’t see any downside. “There is really no reason not to. The December date is pretty arbitrary, and there is not a reason that the Electoral College couldn’t meet later.”

Scholars have contemplated various iterations of these disaster scenarios for years, especially since Sept. 11, 2001.

One proposal to remove the ambiguities inherent in the country’s current electoral system has been proposed by Yale law professor Akhil Amar. Amar would have Congress pass a law requiring that votes cast for candidates who die before the electors’ meeting be counted. Under this scenario, the next president would again be determined by the succession act. Amar would also have electors be required to vote for the ticket to which they are pledged if the candidates should die before the electors meet — even if the party has not had time to find a replacement.

But Price, for one, isn’t optimistic that Congress will quickly take up these proposals when they return for a lame-duck session after the election. He introduced his bill in September and it was referred to the House Administration Committee, where it remains.

“I think that a number of Republicans seem to have concluded that election reform almost by definition is critical of their president and how he got elected,” Price said. “This hasn’t been totally true, and the enactment of the Help America Vote Act had some bipartisan cooperation with [House Minority Whip] Steny Hoyer [D-Md.] and [House Administration Chairman] Bob Ney [R-Ohio]. But even then there was a kind of defensiveness on the part of Republicans, so the fact that there wasn’t more interest in this from the Republicans was disappointing but not surprising.”