Do-Over Congressional Elections: The 1974 Louisiana Moore-LaCaze Race

Before leaving (hopefully) the subject of election do-overs, I should mention that there is one relevant modern “precedent,” of a fashion, which came to my attention after my initial post on the subject. (Hat tip: Steven Shepard of Politico).

The election of November 5, 1974 in Louisiana’s sixth congressional district was between Republican Henson Moore and Democrat Jeff LaCaze. The initial count had Moore leading by 44 votes, but LaCaze was able to obtain a TRO in state court preventing the certification of the results based on an allegedly malfunctioning voting machine. After the issue of the court’s jurisdiction was litigated up to the Louisiana Supreme Court (which upheld it), the trial judge (Judge Shortess) took evidence regarding the voting machine, which he determined was defective and may have changed the outcome of the election. See Melvin A. Shortess & Charles G. Douglas III, State Courts and Federal Elections, 62 A.B.A. J. 451, 453 (1976).

Judge Shortess then concluded that the appropriate remedy was to order a new election for the congressional district (he considered, but rejected, the alternative of rerunning the election in just the precinct affected by the defective voting machine). Review of this decision was sought in the Louisiana Supreme Court, which denied the writ. See LaCaze v. Johnson, 310 So.2d 86 (La. 1974).

A new election was held, which Moore won handily. He was seated by the House, apparently without further controversy. An unusual article co-written by Judge Shortess later claimed that this action by the House showed “by clear implication the House approved the analysis adopted by the state judiciary in Louisiana.” 62 A.B.A. J. at 453.

I would not assign much precedential weight to the House’s silence, particularly as to issues not before it. As far as I can tell, the question whether do-over elections conflict with federal law was not raised even in the Louisiana litigation. Two justices dissented from the denial of review of Judge Shortess’s order of a new election, but they merely argued that the circumstances did not warrant “the drastic step of annulling the entire election.” 310 So.2d at 88 (Dixon, J., dissenting). They did not consider whether federal law prohibited calling a new congressional election when no vacancy existed.

Nonetheless, the Louisiana case provides some support for the proposition that do-over congressional elections may be held, at least when ordered by a court as an extraordinary remedy. However, it is hardly conclusive as to an issue not raised, namely whether a state may provide for a do-over congressional election when, in circumstances it defines, the initial election is deemed unfair or inadequate. This remains very much an open question in my mind.

North Carolina Still Has a Problem

Yesterday the North Carolina election board unanimously voted to call a new election in the state’s ninth congressional district, an unexpected result that occurred after the Republican candidate, Mark Harris, basically imploded on the stand and ended up agreeing with his Democratic opponent that a new election was needed. As a practical matter, this might seem to moot my concerns about the legality of this process because, with both candidates and their respective political parties on board, it is difficult to imagine a challenge to a second election being seriously entertained.

Not so fast. It turns out that there is still a dispute about the process for conducting the new election. Under North Carolina law as of the time of the 2018 election, a new election called by the election board is supposed to be limited to the same candidates who were on the ballot in the original election (with some exceptions not relevant here).  See NC Gen. Stat. 163-182.13 (c).

However, in December 2018, after the state election board refused to certify the result in the ninth congressional district, the Republican-controlled North Carolina legislature passed a new law that requires the candidates in a  new congressional election ordered by the board to be selected in primaries. This law, the New York Times observed, “opens the door for Republicans to consider replacing Mark Harris, their candidate in the disputed race in the Ninth Congressional District.” Under the current circumstances, this door is one Republicans are happy to have.

However, the three sitting Democratic members of Congress from North Carolina protested the passage of the new law, contending that “changing the law after the election, to require a new primary, is likely unconstitutional.” Needless to say, the Democrats would be better off if Republicans were required to run Harris as their candidate. Therefore, although the election board apparently intends to follow the new law and require that primaries be held, there could well be a legal challenge to this process.

Assuming for the sake of argument that states have the power to provide for do-over elections under their general authority to regulate congressional elections (art. I, § 4, cl. 1), it is not at all obvious to me whether that power extends to changing the law after an election has already occurred. It is possible that a court would order a new election to take place under the old law, which would deprive other Republican candidates of the opportunity to run. It is also possible that a court would conclude (correctly, I tend to think) that North Carolina lacks the power to provide for a do-over election at all. In either case, there is likely to be a procedural mess, as well as continuing controversy regarding the fairness and legality of the process.

But there is a simple way to avoid this. The House can simply declare the seat vacant (an noncontroversial act now that both candidates agree the first election must be set aside). This will trigger NC Gen. Stat. 163A-721, which requires the governor to set times for both primaries and the general election. It is the same process being used to fill the vacant seat caused by the death of Congressman Walter Jones and, as far as I know, there is no legal objection that could be made to it.

So why not do that?


Why the North Carolina Election Board Should Punt to the House

Yesterday the North Carolina election board began hearing testimony regarding alleged fraud and misconduct affecting the 2018 election in the state’s 9th congressional district. Attorneys for Dan McCready, the Democratic candidate who finished 905 votes behind his opponent, urge the board to exercise its authority under NC Gen. Stat. 163-182.13 (a) (4), which allows it to order a new election if it finds “irregularities or improprieties occurred to such an extent that they taint the results of the entire election and cast doubt on its fairness.” Attorneys for Mark Harris, the Republican candidate, argue that the statutory standard has not been met and that in any event the discretionary remedy of calling a new election should not be employed.

My prior post on this issue assumed North Carolina’s authority to call a new election here would have to rise or fall based on the House Vacancies Clause (art. I, § 2, cl. 4) in the U.S. Constitution. Under this theory, the decision of the state election board to order a new election would have to be viewed either as a legally operative act creating a vacancy under North Carolina law or as prima facie evidence that a vacancy already exists. In either case the governor would have to issue a writ of election to comply with the House Vacancies Clause, which provides “[w]hen Vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.”

This theory, however, seems problematic. For one thing, it is not at all clear that the governor will play any role here. There is a statutory provision for filling congressional vacancies, NC Gen. Stat. 163A-721, which the governor will use to fill the vacancy caused by the death of Congressman Walter Jones (RIP), but this provision appears to operate separately from the state election board’s process for calling new elections. Moreover, any attempt to argue that a vacancy exists would have to grapple with the fact that the House itself has not recognized a vacancy.

An alternative theory would be that the state election board’s authority flows from the state’s general power to regulate elections under the Constitution (art. I, § 4, cl. 1), which provides: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . .” Under this theory, North Carolina’s statutory scheme would prescribe the “time” and “manner” of electing representatives in situations where the initial election failed.

The problem with this theory, as mentioned in my earlier post, is that it seems to run afoul of 2 U.S.C. § 7, which provides that the general election for representatives to each congress must take place on a single uniform day in all states (i.e., the Tuesday after the first Monday in November in every even-numbered year). This federal law overrides any state law to the contrary. See generally Foster v. Love, 522 U.S. 67 (1997). As far as I know, there is no federal law allowing a “do over” exception to this mandate.

Therefore, it seems to me that any order from the North Carolina elections board ordering a new election in this case would run a significant risk of being held unconstitutional and/or a violation of federal law.

Another problem is that the elections board can only order a new election if four of its five members agree to do so. The board consists of three Democrats and two Republicans, creating a distinct possibility that it will be unable to reach agreement on the proper course of action. McCready’s lawyers argue that in such case the board should decline to certify the election and instead send its findings and records to the House of Representatives, deferring any further action until the House decides what to do. Harris’s lawyers counter that North Carolina law requires the board to either order a new election or certify Harris as the winner.

Whether or not a vacancy exists in this case is a determination only the House ultimately can make (however much it may wish otherwise). Regardless of whether the board certifies Harris as the winner, it should send its records, along with any findings or recommendations it deems fit to make, to the Committee on House Administration for purposes of allowing the House to make that determination. No election should be called until the House does so.

Is Senator McSally Unconstitutional?

An interesting Seventeenth Amendment issue is raised by this Atlantic article by Professor Garrett Epps.  Epps contends that the Arizona law which permitted the governor to appoint Martha McSally to fill the vacant senate seat arising from the death of Senator John McCain is unconstitutional. A new lawsuit filed in Arizona federal court, Tedards v. Ducey, seeks to force the governor to call an immediate special election to fill the vacancy.

To understand the issue, we should begin with the text of the Seventeenth Amendment:

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This seemingly straightforward language turns out to be more complicated on closer inspection. For example, what happens if a vacancy arises so close to the end of a senate term it is impossible or impractical to call a special election to fill the remainder of the term? A literal reading of the constitutional language might suggest that in such instances the governor is disabled from making an appointment at all because such an appointment would not be a “temporary” one lasting only until the people fill the vacancy by election.

Perhaps not surprisingly, the constitutional text has not been so interpreted, presumably because it makes little or no sense to deprive the governor of the authority to fill a vacancy in such circumstances and because to do so would contravene the important goal of ensuring that each state is fully represented in the Senate. See U.S. const., art. v (“no State, without its Consent, shall be deprived of its equal Suffrage in the Senate”). Indeed, there have been at least 27 instances since the ratification of the Seventeenth Amendment where the governor’s appointee served out the balance of the senate term rather than being replaced at some point by a senator popularly elected to fill the vacancy. See Judge v. Quinn, 612 F.3d 537, 556 (7th Cir. 2010) (“Judge I“). This practice is at least some evidence that the Constitution does not require a special election in all circumstances when a senate vacancy is filled by executive appointment.

What about vacancies at the opposite extreme, namely those that arise relatively early in a senate term? The Seventeenth Amendment does not specify when the special election to fill a vacancy must take place. Thus, if a state were to provide that the special election to fill the vacancy take place at the time of the general election immediately preceding the expiration of the senate term, the election could theoretically take place more than five years after the vacancy arose. Although such a state law would not violate the literal terms of the Seventeenth Amendment, it arguably conflicts with the spirit of the amendment’s “primary objective of guaranteeing that senators are selected by the people of the states in popular elections.” Judge I, 612 F.3d at 555.

Continue reading “Is Senator McSally Unconstitutional?”

North Carolina Ninth Congressional District: Status Unchanged

The updates on the North Carolina 9thcongressional district consist largely of things that have not happened. First, not surprisingly, no one has been sworn in to represent the district in the new Congress. Second, no one has been issued a certificate of election, although Republican candidate Mark Harris has filed suit asking a court to order the state elections board to issue him such a certificate. Third, while some investigation into the election by state election authorities continues, formal proceedings are on hold until a new state board of elections is constituted on January 31. Fourth, and somewhat more surprisingly, the House has not taken any formal action to assert jurisdiction or commence an investigation regarding the election, although House Democrats have been having discussions about possible next steps. A good summary of these nondevelopments can be found here.

It appears House leaders are inclined to wait on the outcome of the state election proceedings, unless a court should order Harris certified (in which case the House would refuse to seat Harris and commence its own investigation). They seem to be hoping that the state board of elections will order a new election, thereby obviating the need for the House to take any action.

The problem with this passive approach is that it could take weeks or months for the new state election board to act. Moreover, as suggested in my last post, there are questions about the interaction of the House’s authority to declare a vacancy, the governor’s authority to call a special election in the event of a vacancy, and the state board’s authority to order new elections under state law. These questions and uncertainties could further delay congressional representation for the 9th district.

In the meantime, the House seems to recognize that there is no vacancy in the North Carolina 9th congressional district. Up until yesterday the Clerk’s homepage showed the tally of members in the 116th Congress as including one vacancy, but that has now been changed to zero vacancies. The Clerk’s vacancies page confirms “there are no vacancies for the 1st Session of the 116th Congress.”

What this means for the Clerk’s authority over the empty congressional office remains to be seen. As of Tuesday afternoon, no one seemed to be in 132 Cannon (see photo of the uncollected mail). Unless the House takes further steps to empower the Clerk or someone else to manage the office or hire staff, the people of the district will have to look to their senators if they need constituent service.



Is there a Vacancy in North Carolina?

The vote count in North Carolina’s ninth congressional district resulted in the Republican candidate, Mark Harris, leading his Democratic opponent by a narrow margin (905 votes). The North Carolina election authorities, however, have declined to certify his victory as they investigate allegations that the results were tainted by fraud.

This means that the House, which is constitutionally the judge of the elections and returns of its members (Article I, section 5, clause 1), has a decision to make when it meets tomorrow on the first day of the 116th Congress. Will it seat a member to represent the ninth congressional district of North Carolina? According to the incoming House Majority Leader, Steny Hoyer, the answer is no. Last Friday, Hoyer told the Charlotte Observer that Harris would not be seated on January 3 because “[i]n this instance, the integrity of our democratic process outweighs concerns about the seat being vacant at the start of the new Congress.” Hoyer’s position was visually illustrated on Monday by the nameplate on the door of a congressional office at 132 Cannon (see photo below). Rather than bearing the name of the member expected to represent the district, it reads “Office of the 9th Congressional District of North Carolina,” which is how the House designates an office managed by the Clerk under House Rule II(2)(h)(i) in the event that a vacancy occurs.

There is, however, no vacancy in the North Carolina 9th district yet, and there will not be one tomorrow unless the House votes to declare one. The House certainly has the power to do so, but it seems unlikely that it will. The question of whether the seat is vacant is not a relatively straightforward factual question (like whether a member has died or is in a coma from which recovery is unlikely), but a legal judgment that can only be made after reviewing the evidence and determining that (1) fraud occurred and (2) either the candidate was complicit or that the fraud was significant enough to have affected the outcome. This is particularly so given House precedent that “[n]othing short of an impossibility of ascertaining for whom the majority of votes were given ought to vacate an election, especially if by such decision the people must . . . necessarily go unrepresented for a long period of time.” CRS Report for Congress, Procedures for Contested Election Cases in the House of Representatives 16-17 (Oct. 18, 2016) (quoting McCloskey and McIntyre, H. Rep. 99-58, at 44 (1985)).

So what then should the House do?  It could choose to seat Harris without prejudice to its ultimate determination of the election outcome. Normally this is what the House does when one candidate is certified as the winner but there appears to be a serious challenge to the certified election results. Even then, the House sometimes declines to seat anyone. I am not aware of any precedent for what the House should do when the state authorities have not certified anyone as the winner, but it seems logical that no one would be seated in that situation. On the other hand, that intensifies the need for a speedy resolution of the matter.

The House could also choose to wait upon the outcome of the state election investigation. There are both pragmatic and constitutional considerations against such an approach, however. The former include the fact that it would significantly extend the period in which the people of the district would be unrepresented, particularly because the process in North Carolina appears to be bogged down with its own problems. The latter include the question whether it is proper for state election authorities or courts to make the types of difficult factual and legal decisions inherent in a fraud case (as opposed to the administrative nature of a recount). See Kristen R. Lisk, The Resolution of Contested Elections in the U.S. House of Representatives: Why State Courts Should Not Help with the House Work, 83 N.Y.U. L. Rev. 1213, 1217-18 (2008) (arguing for “exclusive congressional jurisdiction over all election contests seeking more than administrative recounts, because these contests involve substantive claims that require decision makers to engage directly with election results and make difficult policy decisions.”).

There is a separate and even more serious question whether state officials have the authority to order a new election on the grounds that the original election was tainted by fraud. A new election is fundamentally different than recounts or other post-election remedies. Under federal law, North Carolina was required to conduct its congressional elections for the 116th Congress on the first Monday in November 2018. See 2 U.S.C. 7. If a vacancy then happens in North Carolina’s representation, the governor must then issue a writ of election to fill the vacancy, but I am not aware of any authority for the proposition that the governor or other state officials can declare a vacancy because they believe the initial election to be defective in some way.

The closest case I have found (in an admittedly non-exhaustive search) is an 1826 Pennsylvania congressional election which resulted in a tie vote. See I Hinds Precedents 555. In that case “[i]t appearing that the people had failed to make a choice, the executive seems to have considered the case in the light of a vacancy, but not to an extent sufficient to warrant him in directing a new election until both [candidates] informed him in writing that they relinquished all claims to the seat in virtue of the election of 1826.” In light of this waiver, the House committee accepted the results of the second election and declined to consider claims arising from the first. This precedent would therefore be of little help in establishing a governor’s authority to declare or recognize a vacancy in the circumstances presented here. There are also a couple of even earlier cases brought to my attention by Professor Derek Muller in which a second election was held to fill a House seat (Lyon v. Smith, 1796 and Turner v. Baylies, 1809), but it is not clear that these involved a purported vacancy as opposed to merely a carrying out of state election procedures for the original election. Prior to the enactment of a uniform federal date for congressional elections, states were free to hold a second election at a later time if the initial election was deemed inconclusive.

It could be argued that the North Carolina governor has the authority to call for a special election, and that this authority does not interfere with the House’s constitutional prerogatives because the House is always free to disregard the results of that special election (if it believes there was no vacancy in the first place). But this would not only be an extraordinarily inefficient way of proceeding, but it would establish a potentially dangerous precedent which would allow governors to disregard the results of any election if they believed there was some deficiency in it. As a matter of prudence, if not constitutional necessity, therefore, no special election should be called in North Carolina unless the House itself first declares a vacancy.

The House could still wait on the results of the North Carolina proceedings before making a decision as to whether a vacancy exists. This, however, is likely to take a long time. Instead, the House should immediately assert jurisdiction over the North Carolina election matter and direct the Committee on House Administration (or a task force thereof) to gather the relevant facts and determine as expeditiously as possible whether a vacancy should be declared.

Finally, there is an interesting question regarding the Clerk’s authority over the office located at 132 Cannon H.O.B. As already noted, House Rules provide that “[t]he Clerk shall supervise the staff and manage the office of a Member, Delegate, or Resident Commissioner who has died, resigned, or been expelled until a successor is elected.” This authority, however, is inapplicable here. The same rule provides “[t]he Clerk shall perform similar duties in the event that a vacancy is declared by the House in any congressional district because of the incapacity of the person representing such district or other reason.” Until the House declares a vacancy, however, this authority also is inapplicable. Therefore, it would seem the House would be well advised to provide specific authority to the Clerk to manage this office in whatever resolution it crafts to deal with this unusual situation.



Resources on State Recount and Contested Election Laws

[Correction: Professor Tokaji informs me that the page I linked to is no longer accessible from Moritz’s main page and has not been kept updated since 2004 or so. My mistake. If anyone knows of more recent compilations, let me know and I will add them to this post]. 

What’s that you say? Where can I find a 12-year old CRS report listing state recount and contested election statutes? Amazingly enough, I have one right here.

The truth is I am cleaning some files, and the hard copy of this report is going in the recycle bin. I couldn’t find the report or a more recent version of it online and, despite its age, it seems worth preserving. A quick google search reveals a couple of other useful sources (here is a summary of state recount laws that is kept up to date [see correction] by Professor Dan Tokaji at Moritz College of Law and here is a 1990 report on state procedures for resolving contested federal elections from the EAC website).  I add the CRS report for whatever additional value it can provide.

Could New York Legally Add Another Day of Voting after Tomorrow?

There has been much discussion over the past week or so regarding the question of whether a presidential election can be postponed, either generally or in particular states, in the event of a natural disaster such as Hurricane Sandy. Professor Steve Huefner (a veteran of the Senate Legal Counsel’s office) has an excellent summary of the applicable constitutional and statutory provisions. Professor Rick Hasen weighs in here, arguing we need federal legislation to address this issue.

I think it would be widely, if not universally, agreed that Congress has the constitutional authority to provide that a presidential election may be postponed under particular circumstances, or that additional time may be added to permit completion of the voting process after the legally specified day of election. The Constitution provides that Congress “may determine the Time of chusing the Electors and the Day on which they shall give their Votes, which Day shall be the same throughout the United States.” It seems fairly clear that this provision only requires uniformity with respect to the day on which presidential electors cast their votes; Congress is not prohibited from authorizing states to choose their presidential electors at different times. Thus, Congress could, if it wished, provide that the time of election in particular states or jurisdictions could be changed or extended based on the occurrence of a disaster, natural or otherwise. See CRS Report, Postponements and Rescheduling of Federal Elections 4 (2004) (Congress could “pass legislation regarding dates, and emergency postponements and/or rescheduling times for elections to federal offices”).

Current federal law, however, has no explicit provisions for postponing a presidential election under any circumstances, nor does it delegate to the President or the executive branch any authority to postpone or extend any federal election due to emergency or any other reason. (Huefner notes that, despite suggestions that it do so, Congress has adopted “no federal contingencies to deal with disasters or emergencies”).

Moreover, there is no constitutional text or historical precedent to suggest that the President has inherent authority to alter the timetable of any election, state or federal. Thus, it seems clear, as this Heritage blog post argues, that there is no federal executive authority to alter the election schedule in response to a natural disaster or other emergency.

It is less clear whether states have the authority to postpone presidential elections in emergency situations. In the absence of federal legislation, states would certainly have this authority because the appointment of its presidential electors is a state responsibility, to be accomplished “in such Manner as the Legislature thereof may direct.” See J. Goldfeder, Could Terrorists Derail a Presidential Election?,  32 Fordham Urb. L.J. 101, 123 (2004) (“The United States Constitution and federal statutes grant the several states dominant decision-making authority in presidential elections.”).

However, federal law mandates that “[t]he electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.” 3 USC §1. This exercise of the Congress’s power to “determine the Time of Chusing the Electors” constrains the discretion the states could otherwise exercise with regard to scheduling of elections.

The next section of the U.S. Code, 3 U.S.C. §2, seems to give the states some wriggle room: “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.” The requirement of appointing electors on the specified Tuesday in November is thus not absolute, but the scope of the exception is far from clear.

First, does this exception require that the state actually hold an election on the day prescribed by law? Read literally, it appears to, and thus would seem to preclude the state from simply postponing the entirety of the election. In itself, though, this might not be much of a limitation because the state could simply hold a pro forma election (say in which one polling station was open) on the prescribed day.

Perhaps a more difficult barrier to overcome is the requirement that the election “fail[] to make a choice on the day prescribed by law.” What does this language mean? I was under the impression that this provision was directed primarily at the situation where state law required a majority vote for an election, and no candidate (or slate of electors) received a majority vote on election day. This commentator, however, says “[t]he historical record indicates that Congress thought this statutory language included cases where floods or inclement weather prevented ‘any considerable number’ of voters from reaching the polls and that, in such cases, Congress wanted to confirm the power of the state’s ‘legislature to authorize the continuance of the elections’ past the congressionally prescribed election day. This legislative history indicates that an election might ‘fail to make a choice’ even though there had been an election with a certifiable result, at least when that result was distorted by flooding or bad weather.”

I must say that if Congress intended this provision to permit states to extend an election when “any considerable number” of voters are prevented from reaching the polls, it could have chosen better language to express this intent. Nevertheless, it seems plausible that the statute would be construed broadly in such a way as to advance two federal objectives reflected in the overall statutory scheme; (1) to defer to state rules and procedures regarding the appointment of presidential electors and (2) to ensure that each state is able to cast its constitutionally authorized electoral votes on the day prescribed by federal law (i.e., the first Monday after the second Wednesday in December, which this year will be December 17).

Which brings us to New York Code 3-108, which provides:

A county board of elections, or the state board of elections with respect to an election conducted in a district in the jurisdiction of more than one county board of elections, may determine that, as the direct consequence of a fire, earthquake, tornado, explosion, power failure, act of sabotage, enemy attack or other disaster, less than twenty-five per centum of the registered voters of any city, town or village, or if the city of New York, or any county therein, actually voted in any general election. Such a determination by a county board of elections shall be subject to approval by the state board of elections. If the state board of elections makes such a determination, it shall notify the board of elections having jurisdiction in that county that an additional day of election shall be held. . . .

Note that this provision has some deficiencies from the point of view of its validity under 3 USC §2. The New York statute does not say that the failure of at least twenty-five percent of voters in a particular jurisdiction to vote, as the result of a disaster, prevents the state from making a choice on election day. Presumably, the provision applies even if there are not enough affected voters to change the outcome on election day.

It may be argued that the New York legislature has implicitly determined that the state has failed to make a choice under these circumstances. But this points up another issue- if the legislature can determine that an election can be extended if an insufficient percentage of registered voters actually vote, what is there to limit this to an emergency situation? In theory, a state could extend its voting period for as many days as it took for a specified percentage of registered voters to vote (so long as it finished by the time the presidential electors are required to vote), whether or not there was a disaster. This could substantially undermine the federal requirement of a uniform day of election.

If New York provides an additional day of voting as a result of Hurricane Sandy, it is unlikely to have any effect on the choice of New York’s electors, or on the ultimate selection of the president. But it will no doubt give rise to some interesting legal debates.

Could Biden Vote Under the 12th Amendment?

In a previous post, we briefly discussed the question of whether the Vice-President could vote in the Senate in the event of an electoral college tie followed by a tie vote in the Senate to elect his successor under the 12th Amendment. Over at Balkinization, Professor Gerard Magliocca asks the same question.

My view, which I sketched out more in comments to Magliocca’s post, is that the 12th amendment does not permit the Vice-President to vote for three reasons. First, as a textual matter, the VP’s vote wouldn’t give the winner a “majority of the whole number.” The 12th amendment says that, if no one receives an electoral college majority for Vice-President, “the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.”  The Vice-President is not a Senator and therefore not part of the “whole number;” thus, his vote would seem irrelevant to obtaining the necessary majority.

Second, to the extent that the 12th amendment is ambiguous on this point, there are strong reasons not to interpret it as authorizing the VP to vote.  At the time the 12th amendment was adopted, it was not yet established that the VP could vote on matters beyond ordinary legislation. Moreover, it seems unlikely that the framers of the 12th amendment would have intended the VP to vote in an election in which he would so often be an interested party (just as members, at least in the House, are not supposed to vote on matters relating to their own seats). Thus, the 12th amendment’s silence should not be taken as an implicit authorization for the VP to vote.

Third, Article I prohibits the Vice-President from voting unless the Senate is “equally divided.” Thus, if one Senator did not vote, resulting in a 50-49 vote, the VP could not vote, yet there would not be the necessary majority to make a choice.

I think these arguments are pretty strong. (This blog, although written by a non-lawyer, makes a similar case). It does not seem Professors Magliocca or Sandy Levinson are persuaded, but Professor Michael Ramsey is.

If others in the law professoriate weigh in, let me know in the comments.

Are You Ready for the Romney-Biden Administration?

The Real Clear Politics Electoral College Map currently has the Obama/Biden ticket with 210 electoral votes and the Romney/Ryan ticket with 181. There are 12 “toss up” states with 156 electoral votes. If the toss up states are given to the slate to which they are currently leaning, Obama/Biden has 294 electoral votes and Romney/Ryan 244.

However, if just three of the closest toss up states (Virginia, Iowa and Nevada) were to switch to the Romney/Ryan camp, it would result in a deadlocked electoral college, with each ticket having 269 electoral votes.

Supposing that were to actually occur, what would happen? Under the Twelfth Amendment, if no person receives a majority of the electoral vote for President, “then from the persons having received the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.” Presumably that list would consist only of President Obama and Governor Romney, although note that any one elector could expand the list by voting for someone else.

The choice of the President would be made by the 113th Congress so we do not know what the exact partisan breakdown of the newly elected House will be. However, the voting for the presidency would be by state, not by individual member, and, as this CNN article suggests, it is highly likely that the Republicans will control a majority of the state delegations, even if the Democrats win back control of the House. Thus, it seems that Governor Romney would be the heavy favorite.

If no person receives a majority of the electoral vote for Vice-President, the Twelfth Amendment provides that “then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.” We do not know who will control the Senate in the next Congress, although the Democrats appear to be the favorites at this point. Thus, the odds suggest that Vice-President Biden would be elected by the Senate.

But what happens if there is a 50-50 tie in the Senate? Could Vice-President Biden vote to break the tie in his own favor? This article says yes, but I am not so sure. One could argue, it seems to me, that the “majority of the whole number” refers to the whole number of Senators, and that the Vice-President’s vote cannot create a majority of that number. There would also be, I imagine, objections raised to the Vice-President voting in his own election. So we can consider that an open issue for the moment.


Update: Writing in the Washington Examiner, Philip Klein also suggests that Biden could cast a tie-breaking vote for himself. However, the more I think about this, the more I tend to think it is wrong. Suppose 50 Democratic Senators vote for Biden, but one or more Republican Senators did not vote, so that Ryan receives 49 or fewer votes. Biden would not be able to vote because the Senate would not be “equally divided,” but no one would be elected because the winner must receive the votes of a majority of the whole number (ie, 51).

Note the additional complication that could occur if a Senate seat were vacant as of January 3, 2013 (because, say, the election was contested and the state had not yet certified a winner). In that case there would be a question whether the “whole number” referred to by the 12th Amendment is 100 or only the total number of Senators seated and sworn (i.e., 99).