Nobody for President

This is not an endorsement, but the title of an article written by a University of Virginia law professor in the immediate aftermath of the 2000 presidential election. See John Harrison, Nobody for President, 16 J. L. & Pol. 699 (2000). Professor Harrison rejects the claim that “Congress is the final judge of electoral votes,” contending that under the Constitution “Congress has no such authority, nor does anyone else.” Id. at 701. He acknowledges that Congress’s unique role in the counting of electoral votes may make it the de facto decisionmaker in some circumstances, but he argues that in those cases “Congress to a large extent would be acting, not as the legislature established by the Constitution, but as an extraordinary political body seeking to hammer out an extra-constitutional solution to a problem the Constitution cannot solve.” Id. at 707. This, he suggests, is basically what happened when Congress created a special Electoral Commission to resolve disputed electoral votes from the Hayes-Tilden election of 1876. Id.

I bring this up because I recently attended a program held by the American Constitution Society to commemorate the 15th anniversary of the Supreme Court’s decision in Bush v. Gore, 531 U.S. 98 (2000). (I guess the appropriate anniversary gift would be a crystal ball). The panel consisted of Judith Browne Dianis, Rick Hasen, Pam Karlan and Curt Levey, with Joan Biskupic moderating. You can watch the whole program here.

Contra Professor Harrison, a number of participants in the ACS program seemed to take it for granted that the Constitution assigns to Congress the role of resolving controversies such as that which arose over Florida’s electoral votes in 2000. Professors Hasen and Karlan, in particular, suggested that the Supreme Court should have deferred to Congress and declined to intervene in the Florida recount. Doing so, they said, would not have resulted in a “constitutional crisis,” but simply in the ultimate decision being made by a political body as the Framers intended.

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