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Monday, March 27, 2017

Ornstein on election do-overs

In The Atlantic, Norm Ornstein proposes the creation of a mechanism for special presidential and vice-presidential election in "extraordinary circumstances," covering not only a terrorist attack or other catastrophic event, but also attacks on the electoral process itself, as well as "foreign interference in the election combined with a winning party’s involvement in or reinforcement of the interference." Ornstein's basic point is that if a cloud if illegitimacy hangs over the President and Vice President, everyone who might replace him within the line of succession sits under that same cloud. (This is the converse to the logic of having cabinet officers as primary successors--they enjoy what Akhil Amar calls "apostolic democratic legitimacy" should they be elevated to acting president, by virtue of having been appointed by the legitimate President. But if that President is not legitimate, then no one enjoys apostolic legitimacy).

Norm knows more about presidential succession than just about anyone alive. I had the privilege of working with him a bit on the Continuity of Government Commission, an effort he co-chaired in the years after 9/11 to alter the rules of presidential succession to respond to a mass-destruction event aimed at Washington (recall that Flight 93 was headed to the Capitol). Those efforts went nowhere, as the political urgency subsided. His point now is that a different political urgency has presented itself.

Posted by Howard Wasserman on March 27, 2017 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Some states have a provision for recall elections of the governor. Recent invocations of it (Walker in Wisconsin, for example) weren't the sort of affairs that give one confidence in direct democracy. Even the case of Schwartzenegger replacing Davis didn't do much to change substantive policy. (And doesn't anyone at The Atlantic even think to look for historical examples? This stuff should be obvious.)

If elections truly are rigged to the point of lacking legitimacy, the political order of a place has problems too big to be fixed by tweaking the order of succession.

Posted by: M. Rad. | Mar 31, 2017 1:01:26 PM

If there's one country that shouldn't moralize about tampering in others' elections, it's the United States.

Plus, if this idea were to ever become law, whichever party lost the election would attempt to create a (non-quantifiable) "cloud of illegitimacy" over the president and vice president, thus triggering special elections.

Just because someone knows a lot about a subject doesn't mean they can't have a bad idea. This is a very bad idea.

Posted by: YesterdayIKilledAMammoth | Mar 28, 2017 6:53:39 PM

FWIW, I think the Flight 93 assertion about the Capitol is disputed. It could have been the White House or another target.

Posted by: TS | Mar 28, 2017 4:26:19 AM

This would have been extremely useful after the 2012 election what with the Kremlin's support for Obama's reelection and his pre-election pledge to the Russian regime that he would have more flexibility in dealing with them after his reelection, after defeating the anti-Russia candidate Romney.

Posted by: MS61 | Mar 27, 2017 5:48:18 PM

Concern for partisan abuse is apparently addressed via a supermajority standard. Whatever standard is applied in cases like this, I gather (this is a law blog, find a good hypothetical is a specialty) some outlier cases might be imagined. Maybe his analysis is off. But, the supermajority requirement and general BFD of all of this would tend to crowd out minor "theft" concerns, just like a POTUS isn't going to be impeached (without a lot of heavy lifting & the Clinton precedent there has left many gun shy) for trivial reasons.

Posted by: Joe | Mar 27, 2017 2:36:19 PM


It's worse. The standard he floats is that you can hold a special election if the first election was "effectively" stolen. Not that there needs to be evidence of actual vote tampering, but given that he talks about Trump, the standard just seems to be just some number of people voting on the basis of lies they read online. What election would fail to qualify as being effectively stolen from here on out?

Posted by: Derek Tokaz | Mar 27, 2017 2:08:04 PM

"a mechanism for special presidential and vice-presidential election in 'extraordinary circumstances,'"

Exactly, because that standard couldn't possibly be abused by either party./s

It would only seem fair that, if the President were forced to campaign/run again before his term is up and he/she were to win, the term would be reset for another four years as well as the standard four-year schedule that we currently have in place.

Posted by: TJM | Mar 27, 2017 1:26:30 PM

But, in effect, by arguing to remove them from the line of succession, he is trying to create the very problem he is trying to solve. The current system already addresses the problem by having 2 of the top 3 people in succession not be appointed by the President, and therefore not tainted by a corrupted election.

Is it perfect? No, but his approach seems too much of a solution in search of a problem, and could potentially be ripe for abuse.

Posted by: Observer | Mar 27, 2017 12:50:11 PM

Ornstein argues that both should be removed from the line of succession, either because it is unconstitutional (they are not "officers of the United States," especially once they resign their legislative positions) or, at the very least, a terrible idea creating all sorts of perverse incentives to have legislators in the line of succession. So he is envisioning a model where no legislators are in the mix.

Posted by: Howard Wasserman | Mar 27, 2017 12:33:22 PM

There's a significant hole in his logic. The second and third people in the line of succession are the Speaker of the House and President Pro Tempore of the Senate. Why would either of them be under a cloud of suspicion? They might not even be in the same party, and the President Pro Tempore might not have even been running for office in the last 4 years.

Posted by: Observer | Mar 27, 2017 11:22:46 AM

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