[EL] What if election is still tied up in court somehow on Jan 20?

Fri Sep 11 16:00:02 PDT 2020

Sorry for belatedly jumping into this conversation from yesterday, but a few quick points:

  1.  The constitutional argument that it would be inappropriate for the Speaker of the House or the Senate President Pro Tempore to be in the statutory line of succession is based (as I understand it) on an interpretation of the word “officer” in Article II, which would apply in the case of a presidential and vice-presidential death, but arguably would not apply in the context of the Twentieth Amendment, which uses the term “person” instead of “officer”.  The structural arguments for having a Cabinet officer be next in line after the Vice President are also potentially different in the case of death (Article II) rather than electoral failure (Twentieth Amendment).  Joel Goldstein has written on this point.

  1.  It seems clear that the Twentieth Amendment requires an acting president at noon on January 20 if it is agreed that there is both no “president elect” and no “vice president elect” because of a congressional failure to complete the counting of electoral votes from the states; in other words, Congress bicamerally agrees that the joint session specified in the Twelfth Amendment (and 3 USC 15) has stalemated and failed to compete its work. BUT …

  1.  It is highly problematic if there is a dispute over whether or not (a) the process remains stalemated in this way (thus clearly requiring an acting president under the Twentieth Amendment) or, instead, (b) has been brought to conclusion over the objection of one chamber participating in the joint session (presumably the House, most likely).  This is an issue explored both in this law review article<https://lawecommons.luc.edu/cgi/viewcontent.cgi?article=2719&context=luclj> and this recent essay<https://www.theatlantic.com/ideas/archive/2020/09/terrifying-inadequacy-american-election-law/616072/>.

  1.  Yes, in a circumstance in which the counting of electoral votes from the states is complete (reaching the end of the states in alphabetical order pursuant to 3 USC 15), and it is determined that no candidate has a majority of electoral votes as required for outright election by the Twelfth Amendment, then the fallback (“contingent election”) provisions of the Twelfth Amendment apply, and if in this context the House fails to elect a president (because, for example, no candidate gets an absolute majority of states, 26, as required) but the Senate does elect a Vice President, then the Vice President elect serves as acting president until the House completes its presidential election.  But note: this fallback (“contingent election”) situation does not apply in the case of a stalemated and thus incomplete count of electoral votes in the joint session, one that never reaches the end of the alphabet under 3 USC 15.  (Again, if there is an agreement that there is neither a president-elect or vice-president-elect as of noon on January 20, then one would need to look to the statute that Congress has enacted for an acting president.)

Hope these observations are useful.

Best, Ned

-[signature_88964644]

Edward B. Foley
Ebersold Chair in Constitutional Law
Director, Election Law at Ohio State
Moritz College of Law  
614-292-4288
-

From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Lori Ringhand <ringhand at uga.edu>
Date: Thursday, September 10, 2020 at 4:13 PM
To: Stephanie Singer <sfsinger at campaignscientific.com>, Marty Lederman <Martin.Lederman at law.georgetown.edu>, Richard Winger <richardwinger at yahoo.com>
Cc: "law-election at uci.edu" <law-election at uci.edu>
Subject: Re: [EL] What if election is still tied up in court somehow on Jan 20?

I am curious if others agree this scenario would result in the Speaker as acting president. If the House cannot reach resolution on the President elect, but the Senate does announce its choice regarding the Vice President elect, then doesn't the 12th + the 20th make the VP elect the acting president?
________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Richard Winger <richardwinger at yahoo.com>
Sent: Thursday, September 10, 2020 4:08 PM
To: Stephanie Singer <sfsinger at campaignscientific.com>; Marty Lederman <Martin.Lederman at law.georgetown.edu>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] What if election is still tied up in court somehow on Jan 20?

[EXTERNAL SENDER - PROCEED CAUTIOUSLY]
It's the newly elected House.  That change was made with the 20th amendment in 1933.

Richard Winger 415-922-9779 PO Box 470296, San Francisco Ca 94147

On Thursday, September 10, 2020, 11:53:22 AM PDT, Marty Lederman <martin.lederman at law.georgetown.edu> wrote:

Yes, it'd be Nancy Pelosi--unless the Court were to hold that the Presidential Succession Act is unconstitutional insofar as it prescribes congressional members in the line of succession.  (I don't think the argument against its constitutionality is compelling, but others disagree.)

More likely, I think, that the Court would resolve any Senate/House split before January 20, much as it would prefer not to do so.

On Thu, Sep 10, 2020 at 2:44 PM Stephanie Singer <sfsinger at campaignscientific.com<mailto:sfsinger at campaignscientific.com>> wrote:
I’ve heard — from an unreliable source — that if the election is still tied up in court on Jan 20, 2021, then there will be a vacancy in both Presidential and Vice Presidential offices, which means that (per the Presidential Succession Act<https://urldefense.com/v3/__https:/www.senate.gov/artandhistory/history/minute/Presidential_Succession_Act.htm__;!!KGKeukY!hZ2vJzIKkEWl5XZ6MyIAbInJC14YkegSsos-OPdJKedyYrkATqSfTJ44uYT5EnF9gA$>) the Speaker of the House would serve as President until the vacancy was resolved.

I’d love to know from the experts whether this is a conceivable scenario and, if so, the Speaker of which House -- the newly elected House? And if so, what if some of the election contests for the new House are still tied up in court?

—Stephanie

Stephanie Singer<https://urldefense.com/v3/__https:/www.pdx.edu/profile/stephanie-singer__;!!KGKeukY!hZ2vJzIKkEWl5XZ6MyIAbInJC14YkegSsos-OPdJKedyYrkATqSfTJ44uYQa6T9bhg$>
Research Assistant Professor, Portland State University
Former Chair, Philadelphia County Board of Elections

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Marty Lederman
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