From the Conlawprofs Listserv comes this timely gem from Seton Hall Law School's Prof. Michael Zimmer.
By tomorrow evening, in normal times, we could expect to know whether it's four-more-years of the same or a new broom.
With the networks projecting an election that's too close to call, an even split within the margin of errors (the plural is a happy accident that I'm leaving in) seems to be in the cards.
Others are projecting post-election lawsuits. It may be months before some judge, make that justice of the 'least dangerous branch' tells us who our next president will be.
Kerry v. Bush may supercede Bush v. Gore. Or maybe we'll have two coup in a row.
Prof. Zimmer states:
I prepared this for my Con Law students and several people suggested that I post it, he said not so humbly. Let me know if I have gone wrong anywhere:
Primer on Presidential Election Laws
by Professor Michael J. Zimmer
1. The States select the Electors: Article II, Section 1, cl 2: “Each state shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitle in the Congress. . .
i. Amendment XXIII grants the District of Columbia three electors
b. Notice that it is not required that the people in any state have a federal constitutional right to vote at all for the Electors since the state “shall appoint, in such Manner as the Legislature may direct.”
i. Since Civil War, states do provide that the Electors are appointed by popular vote in the state.
c. Clause 4 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.”
i. Congress has, in 3 U.S.C. § 1, set election day to be “on the Tuesday next after the first Monday in November in every fourth year.” This election year it is Tuesday, November 2, 2004.
ii. 3 U.S.C. § 7 sets the day for the electors to meet to vote in their respective states to be the “first Monday after the second Wednesday in December.” This year that date is December 13, 2004.
iii. 3 U.S.C. § 15 sets the date for Congress to count the electoral votes from all the states and the District of Columbia to be January 6th.
2. State election law and state election mechanisms run the elections for President. Thus, the selection of the President is a prime example of “cooperative federalism.”
a. The political parties compile lists of electors for their party candidate and it is that slate that we vote for when we vote for President. We go to polls set up by our state governments and the rules for
running the election, including contests and protests, are under state law in state courts.
3. The “Faithless Elector”: Since the Constitution does not require how electors vote, there have, so far, been 8 electors who have not voted for the candidate on whose slate they were listed. This election one elector on the Republican slate in West Virginia has announced that he may not vote for President Bush.
a. Twenty-six states have enacted laws trying to prevent faithless electors. The Supreme Court, in Ray v. Blair, found that it was not unconstitutional for a state to make electors pledge their support of the
candidate on whose slate they appear, but it is questionable whether a state could constitutionally force an elector to vote that way.
4. Why the winner of the popular vote may not win the electoral vote: The candidate who has the highest popular vote among all the people voting in the United States may not end up with a majority of the Electoral College. This is true for two reasons.
a. Small states have an advantage v. larger states in the Electoral College system because each state, no matter the population, has at least three Electors. So, a majority in a small state carries more
proportional weight than a majority in a large state.
i. California has 53 members of the House and so it gets 55 electoral votes for president. In 1996, there was one elector selected for every 179,000 voters while in Wyoming, the state with the
smallest population with three electors, one elector was selected for every 70,000 voters.
ii. On the other hand, under a “voting power” theory, the largest states get to control the largest blocs of electoral votes since, for example, California voters get to choose 55 electors this year.
b. Further, all but two, or maybe three if Colorado passes an initiative on this year’s ballot, of the states give all the electoral votes to the candidate who polls the most votes for President.
i. Therefore a candidate can have a huge popular vote lead because he won by big margins in a number of states, capturing all the electoral votes in those states, but can lose the electoral college
vote because he lost by a close margin in enough states that the winner-takes-all rule gives his opponent a majority of electoral votes.
5. Separate lists of electors for President and Vice President: Amendment XII – 1804 – amended Constitution to provide for separate lists of President and VP candidates to take account of the emergence of political parties that ran slates of elector candidate so the winning candidates for both President and Vice President had an equal number of electors. Separate lists means that Presidential candidates run against each other and Vice Presidential candidates run against each other.
a. “The Electors shall meet in their respective states and vote by ballot for President and VP; they shall. . . make distinct lists of all persons voted for as President, and of all persons voted for as VP,
and transmit sealed to the seat of government of the US , directed to the President of the Senate, [i.e., the then sitting VP].”
6. The “Safe Harbor” provision: Congress allows the states to protect their slates of electors from attack when Congress counts the electoral votes if they shelter their selection rules in a so-called “safe harbor” created in 3 U.S.C. § 15.
a. “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.”
i. For the “safe harbor” to apply:
(1) If the state election laws for appointment of electors before election day are fixed before election day, and
(2) if the determination of who those electors are has been made “at least six days before the time fixed for the meeting of the electors”, which, this year is December 7, 2004, then
(3) that determination shall be conclusive.
7. Counting the Electoral Votes: Both Houses of Congress meet on January 6, 2005, to count the electoral votes for President and Vice President.
a. By Amendment XX, Section 1, “The “terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January. . . .”
i. Thus, the new House and the new Senate selected on November 2 come into office on January 3, 2005, and will constitute the bodies that count the electoral votes on January 6th.
ii. The Vice President, who, is President of the Senate, serves until January 20th, and so Vice President Cheney will preside at the counting.
8. Counting the electoral votes on January 6, 2005 commences at 1:00pm. Amendment XII provides that “the person having the greatest number of votes for President, if such number be a majority of the whole number of electors appointed. . . . “
a. There are 538 electors – 435 for each House district, 100 Senators plus 3 electors for the District of Columbia.
b. A majority is 270.
c. As of now, all but Maine and Nebraska, provide that the winnertakes all the electoral votes of the state. Thus, for example, in 2000 Governor Bush received all the electors from Florida even though he was determined to have won the popular vote only by 527 votes.
i. The District Model: Maine and Nebraska use an alternative to the prevailing winner-take-all approach. There are two statewide electors to reflect the two Senators with the statewide outcome used to select these electors. But then each House district selects one elector by plurality vote. Maine has 4 electors and Nebraska.
5. Since they have adopted the district plan, neither Maine nor Nebraska has split its electoral votes.
ii. “Rounded” Proportional Model: In this election in Colorado, there is a proposed amendment to the state constitution that would adopt a proportional system which would be effective this
election. In 2000, the Republican ticket won 50.8% of the popular vote, with the Democrats winning 42.4% and the Green Party (Nader) 5.3%. Governor Bush won all 9 Colorado electors. If the proportional system were used, Bush would have received 5 electors and Vice President Gore would have received the other 4. The “rounding” process would have eliminated Ralph Nader.
(1) So, the Colorado electoral vote count depends on:
(a) Whether the constitutional amendment will pass, and,
(b) If it passes, whether it can be applied to this election since there are questions as to whether:
(i) Changing the rules of the road for an election by that very election is legal and constitutional, and
(ii) The initiative method of enacting a state Constitutional provision is consistent with the language of Article II § 1, cl 2 of the Constitution providing that electors are selected in a “manner as the Legislature thereof may direct.”
1) In 2000, the Supreme Court reversed and remanded a determination of the Florida Supreme Court to clarify whether it had acted pursuant to state constitutional or statutory law.
Bush v. Palm Beach County Canvassing Board. Three members concurring with the majority in Bush v. Gore would great meaning to the role of the state legislatures v. state courts in making election decisions.
9. The “Contingent” Election Procedure for President: “Contingent” election procedure applies if none of the candidates for President has 270 electoral votes. Amendment XII sets forth the procedure:
“if no person have such majority, then from the persons having
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. But in choosing
the President, the votes shall be taken by states, the
representation from each state having one vote; . . .”
a. The failure of any candidate to get a majority of electoral votes can happen in any election but the risk is considerably higher if there has been a third party candidate with enough support to have
won some electoral votes. Thus, the contingent election provision has been used only once. In 1825, the House elected John Quincy Adams as President over Andrew Jackson by a vote of 13 states to 7, with 4 states voting for William H. Crawford.
i. Note that there is no provision allowing the District of Columbia to participate in the contingent election.
ii. So the question is which candidate can get at least 26 state congressional delegations to vote for him. Wyoming with a tiny population gets one vote as does California, the most populous state.
(1) As of now the state delegations to the House have a majority of Republicans in 30 states. If that continues after this election and state delegations to the House vote along party lines,
the House would vote for President Bush if the contingent election procedures apply.
(2) It is possible that there will be a tie vote among the 50 states or that neither candidate will get a majority of the votes of the states because the congressional delegation of one or more states may be tied. At present, both Minnesota and Wisconsin have House delegations that are evenly divided and they are expected to stay that way in the present election. They could remain deadlocked. If they were, and one candidate received 23 votes and the... received 25 votes, neither Presidential
candidate would win a majority in the contingent vote by the House.
10. The “Contingent” election procedures for Vice President: While the House elects the President, the Senate elects the Vice President. Each Senator votes, so the Vice President is selected by a majority, i.e., at least 51, of the 100 Senators. The only time the contingent election procedure for Vice President was used was in 1837 when Richard Johnson was elected by the Senate.
a. The Republicans presently control the Senate by one vote. That could change with the November 2 election so that the Democrats could end up with a majority in the new Senate that would vote for Vice President if the contingent election rules came into play. That means that the new Vice President would be Senator Edwards.
11. Some possible outcomes:
a. It is possible, therefore, that if the “contingent” election procedures need to be used, the House will pick Bush and the Senate would pick Edwards.
b. If the House cannot reach a majority vote for President and so none is selected by January 20, then Amendment XX, § 3 provides that the Vice President will act as President until a President shall have
qualified:
“If a President shall not have been chosen before the
time fixed for the beginning of his term, or if the
President elect shall have failed to qualify, then the
Vice President elect shall act as President until a
President shall have qualified; . . .”
i. The House presumably would stay stalemated until some change occurred which could come as late as the by-elections two years later.
c. If neither a President nor a Vice President is selected then the rules of succession past by Congress operate:
“the Congress may by law provide for the case wherein
neither a President elect nor a Vice President elect
shall have qualified, declaring who shall then act as
President, or the manner in which one who is to act shall
be selected, and such person shall act accordingly until
a President or Vice President shall have qualified.”
i. 3 U.S.C. § 19(a)(1) provides that: “If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the
powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.”
(1) Thus, if Republicans continue to control the House in the new election and if the present Speaker Dennis Hastert is selected as the new Speaker by the Republican majority, then Hastert would
become acting President.
ii. 3 U.S.C. § 19(b) provides that, if the Speaker fails to qualify as Acting President, then the President pro termpore of the Senate will act as President.
(1) Thus, if the Democrats would capture the majority of the new Senate and if Tom Daschle is reelected to the Senate and as the new President pro tem of the Senate, Daschle would become acting President if Hastert failed to qualify.
iii. 3 U.S.C. § 19(d)(1) provides that if the Speaker and President pro tem of the Senate fail to qualify to act as President then the next in succession goes to cabinet members, starting with the Secretary of State.
(1) Thus, Secretary of State Colin Powell, if he has not resigned office, would become acting President since cabinet members continue in office until they resign or are replaced by appointment of the new President and confirmation by the Senate.
12. Objections to Electors are governed by 3 U.S.C. § 15:
a. After the counting, the Vice President announces the outcome of the vote “which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President, and . . . shall call for objections if any.”
“Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received.”
i. These objections can be to individual electors or to the returns of a state as a whole.
ii. If objections are received, then the Senate and House split into separate sessions to consider the objections separately.
These sessions cannot last more than two hours. At the endo of this period, the houses vote separately to agree or disagree with the objection. The Senate returns to the House chamber and the joint session reconvenes. The decisions of the two houses are announced. If both agree to the objection, the electoral vote or votes that were subject to the objection are not counted. Otherwise, the
vote or votes are counted.
b. It is at the objection stage that the “safe harbor” provisions of 3 U.S.C. § 5, discussed above, come to bear where more than one slate of electors is transmitted to Washington from a state.
i. Assume that in the 2000 elections the Florida vote recount had been completed, Vice President Gore was the winner, and the Republican controlled Florida legislature had voted to appoint the
electors of Bush.
(1) If the “safe harbor” provisions had been complied with in a timely manner, then the slate submitted pursuant to those procedures could not be contested in Congress.
(2) If, however, the Florida vote recount was not completed in time and the legislature’s appointment of electors was after the election, the safe harbor provisions would not apply and
Congress would determine which of the two slates to accept under the objection procedures.
(a) If both Houses agreed on one slate, that one wins.
(b) If the House and Senate split, then 3 U.S.C. § 15 applies so the one sent under the seal of the Florida executive would have won. With a Republican executive, that would presumably have been Bush.
Michael J. Zimmer
Professor of Law
Seton Hall Law School
Thank you to Prof. Zimmer for an outstanding piece of Con-Law work.
And this feedback:
Thanks, several shortcomings have been pointed out: There were lots of faithless electors before the 20th Century and there is a question whether the succession provision of 3 USC 19 as to the Speaker and President pro tem are unconstitutional.
Mike [Zimmer]
Noted with thanks.
-rs