How the Hamilton Electors Show that an Article V Convention Cannot Run Away

Back in 2011, I wrote a law review article discussing concerns that a limited convention for proposing amendments called under Article V could propose one or more amendments outside the scope of the application upon which it was called. Among the many safeguards against such a “runaway convention,” I pointed to the ability of a state legislature to restrict the authority of its delegates to an Article V convention, to require from its delegates an oath or pledge to restrict their deliberations to the subject of the application, and to provide for disqualification of and/or sanctions against any delegate who violates these restrictions. See Michael L. Stern, Reopening the Constitutional Road to Reform: Toward a Safeguarded Article V Convention, 78 Tenn. L. Rev. 765, 786 (Spring 2011). Since that time, at least seven states have passed such “delegate limitation acts” or “faithless delegate” laws. See David F. Guldenschuh, The Article V Movement: A Comprehensive Assessment to Date and Suggested Approach for State Legislators and Advocacy Groups Moving Forward 19 & n. 77 (Nov. 2015).

The concept of DLAs (as I shall refer to them collectively) was in part based on analogous laws that had been passed or proposed to bind presidential electors. See Stern, 78 Tenn. L. Rev. at 786 n. 111. For example, the Uniform Faithful Presidential Electors Act (UFPEA), completed by the Uniform Law Commission in 2010, “provides a statutory remedy in the event a state presidential elector fails to vote in accordance with the voters of his or her state.” The UFPEA provides “a state-administered pledge of faithfulness, with any attempt by an elector to submit a vote in violation of that pledge, effectively constituting resignation from the office of elector.” While only a handful of states have passed the UFPEA thus far, a total of 30 states plus the District of Columbia have some sort of law purporting to bind presidential electors to vote for their state’s popular vote winner.

The constitutionality of the UFPEA and other “faithless elector” laws has been debated and litigated over the past several months. Following the November 8, 2016 presidential election, a concerted effort was made by the “Hamilton electors” to argue that (a) presidential electors are free, as a constitutional matter, to vote in accordance with their own judgment and conscience; and (b) whatever norms might ordinarily compel electors to vote in accordance with the popular vote in their state were overcome by the unique and extraordinary facts of this election. These facts fell into three categories: (1) the failure of Donald Trump to win a majority or plurality of the national popular vote; (2) facts which allegedly showed Trump’s unfitness for office (some of which cannot be mentioned on this family-friendly blog); and (3) facts which allegedly showed foreign interference in the election.

As best you can, clear your mind of any passion these arguments may incite in it. Our objective here is not to pass judgment on President Trump, the Hamilton electors, or even the merits of their respective legal arguments per se. Instead, it is to see what the effort to secure an unbound electoral college, a “runaway college” if you will, tells us about the practical, real-world prospects for an analogous effort with regard to an Article V convention.

Continue reading “How the Hamilton Electors Show that an Article V Convention Cannot Run Away”

President Hastert and Other Symptoms of a Constitutional Crisis

What would have happened had the U.S. Supreme Court not intervened in the Florida election contest and the Florida courts had ultimately found in Gore’s favor? The answer to this question depends in part on when the Florida courts reached their decision.

Section 5 of Title 3 codifies the so-called “safe harbor” provision of the Electoral Count Act. This section states:

 If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.

3 U.S.C. § 5.


Continue reading “President Hastert and Other Symptoms of a Constitutional Crisis”

How to Count to 270: The Electoral Count Act and the Election of 2000

To understand the congressional battlefield with regard to the counting of the 2000 presidential vote, we will need a (mercifully) brief review of the law and procedure of electoral vote counting, such as it is. For more comprehensive but less merciful discussions, see Stephen A. Siegel, The Conscientious Congressman’s Guide to the Electoral Count Act of 1887, 56 Fla. L. Rev. 541 (2004) and Vasan Kesavan, Is the Electoral Count Act Constitutional?, 80 N.C. L. Rev. 1653 (2002).

The Basic Counting Procedure

As discussed in my original post, the Constitution does not say who, if anybody, has the “power” to count electoral votes. It says “the votes shall . . . be counted,” apparently referring to a mathematical task that could be performed by anyone who has mastered addition. In current congressional practice, this task is performed by four tellers, who consist of two members of each house appointed by the presiding officers thereof (with one teller from each party in each house).

To see how this works in an ordinary and uncontested situation, see this video of the counting of the electoral vote from the 2012 presidential election. After the members of the House and Senate file in to the chamber, Vice President Biden calls the four tellers (Senators Chuck Schumer and Lamar Alexander and Representatives Candace Miller and Robert Brady, respectively the chairs and ranking members of the Senate Committee on Rules and Administration and the Committee on House Administration) to come forward. The opening and reading of the certificates of the states (plus the District of Columbia) is done one at a time, proceeding in alphabetical order.

Continue reading “How to Count to 270: The Electoral Count Act and the Election of 2000”

What the 1960 Hawaii Presidential Election Meant for Bush v. Gore

On December 11, 2000, the day before the Supreme Court issued its Bush v. Gore ruling, Congresswoman Patsy Mink (D-HI) circulated this Dear Colleague entitled “1960 Hawaii Presidential Election Provides Roadmap for Resolving Florida Election Dispute.” As Congresswoman Mink explained, in 1960 Richard Nixon was originally declared the winner in Hawaii by 141 votes over John F. Kennedy, and the Nixon electors were certified by the governor. The results were contested in court, and on elector balloting day both the certified Nixon electors and the uncertified Kennedy electors cast ballots.

Subsequently, the court-ordered recount resulted in Kennedy being declared the winner by 115 votes. The court entered judgment in favor of Kennedy, and the Republican governor of Hawaii certified the election of the Kennedy electors pursuant to the court judgment. When the certificates from Hawaii were presented during the electoral vote counting, the President of the Senate (i.e., Vice President Nixon) suggested that the certificate of the Kennedy electors be accepted. No one objected and Hawaii’s three electoral votes were counted for Kennedy.

How, one might ask, did this episode provide a “roadmap” for the resolution of the Florida recount? Surely Mink (a University of Chicago trained lawyer, after all) understood that the Hawaii governor’s certification of a particular 1960 election contest conducted under Hawaiian law says nothing about whether the Florida governor should or would certify a 2000 contest conducted under Florida law and presenting completely different factual and legal issues. To take just one example, the Hawaii case had no bearing on whether Florida law required that any presidential election contest be completed by the “safe harbor” date of December 12. See Bush v. Gore, 531 U.S. 98, 110-11 (2000) (stating that any contest that lasted beyond December 12 would constitute “action in violation of the Florida election code”).

As a matter of congressional precedent, one might argue that the disposition of the Hawaii electoral vote supports the proposition that the President of the Senate may determine that the certified result of an election contest should be preferred over the certified result of the initial count, even when the contest was not decided until after the electors voted. One might make this argument, except for a small detail omitted from Mink’s Dear Colleague. When it came time to count Hawaii’s vote, Nixon stated: “In order not to delay the further count of the electoral vote here, the Chair, without the intent of establishing a precedent, suggests that the electors named in the certificate of the Governor of Hawaii dated January 4, 1961, be considered as the lawful electors from the State of Hawaii.” 3 Deschler’s Precedents of the House of Representatives ch. 10, § 3.5 (emphasis added).

Even if Nixon had not made this reservation, the precedential value of the Hawaii episode would have been minimal. Nixon did not purport to make a ruling or exercise any power as presiding officer; he merely made a proposal, against his own interest, as to how to treat three electoral votes that would not have changed the outcome of the election anyway. Moreover, no one objected to his proposal. It is therefore difficult to see how this would have had any precedential effect, either as to procedure or substance, in an actual dispute over counting Florida’s electoral votes.

The Hawaii episode, however, does help to illustrate the two paths by which Congress, absent intervention by SCOTUS, might have resolved the 2000 presidential election in a relatively smooth manner (i.e., without a “constitutional crisis”). The first path would have involved Vice President Gore accepting Bush’s victory and proposing, as President of the Senate, that the votes of Florida’s Bush electors be counted. This likely would have happened if the Florida recount/contest had confirmed Bush as the winner.

The second path would have involved the Florida courts deciding the contest in Gore’s favor and the Florida governor (who happened to also be Bush’s brother) following the example of the Hawaii governor and certifying the result of the election contest. As a legal matter, the conclusiveness of an election contest judgment plus certification is debatable, but politically the certification would presumably have signaled the willingness of the Bush camp to accept Gore’s victory.

In hindsight, we know that there was a reasonable possibility that events would have unfolded along the first path if the Supreme Court had not intervened to stop the Florida recount. Subsequent media analysis indicated that if the recount had taken place in the manner ordered by the Florida courts (without further changes or modifications), Bush would have won. Of course, there was no way to know this in advance and even today we cannot be sure what would have happened.

On the other hand, we can say with a high degree of assurance that events would not have followed the second path. Given the numerous factual and legal controversies surrounding the recount and the Florida judicial process, it is difficult to imagine the Bush camp would have accepted a Gore victory based solely on the authority of the Florida supreme court. It is likewise highly doubtful that Florida Governor Bush would have certified the outcome (alternatively, he might have done so with such reservations as to deprive the certification of its utility).

Furthermore, any attempt to have Florida’s electoral votes counted for Gore under these circumstances would have faced fierce resistance in Congress, specifically from the House of Representatives led by Speaker Hastert and Majority Leader Delay. As I will discuss in my next post, the House had a number of options for blocking (or attempting to block) Gore’s ascension to the presidency and there is reason to believe it would have employed some or all of them.

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.

Continue reading “Nobody for President”

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).