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Friday, March 20, 2020

Acting President Who?

This post is a lark, inspired by a question from my daughter, a question from a colleague, and general paranoia among liberals that President Trump will cancel or undermine the election so he can remain in office in 2021.

Whether the election can happen and how is a genuine concern given coronavirus. But there is no single "election;" there is a series of 51 simultaneous elections in 50 states and D.C., and it is unlikely Trump at his most nefarious can stop alll. Nevertheless, assume the worst-case scenario of no election in any state this fall. The possible results are infinite.

Let's have some fun.

Trump's term as President (and Pence's as VP) end at noon on January 20, 2021. This is non-negotiable. The failure to hold elections means there is "neither a President nor Vice President" due to "failure to qualify," putting us into the Presidential Succession Act.

Acting President Pelosi. The Speaker of the House is first in the statutory line, unconstitutionally so in the eyes of many and unwisely so as a policy matter in the eyes of most. But there is a problem: If there is no election in November, it will not affect only the President; presumably states would be unable to hold House elections. There thus would be no House come January 3, because no House members would have been elected.  If there is no House, there can be no Speaker. If there is no Speaker, the President pro tempore of the Senate becomes acting president. Meaning:

Acting President Patrick Leahy. The Senate is a continuing body, with roughly 2/3 of the body returning in the new Congress. Thirty-five Senate seats are up in 2020; if there are no elections, those 35 seats will not be filled. Thus, the Senate in the 117th Congress in January 2021 will consist of 65 returning Senators. The breakdown of that rump is 33 Democrats, 2 Independents who caucus with the Democrats, and 30 Republicans. The President pro tem is the senior-most member of the chamber majority--Patrick Leahy of Vermont. But:

Acting President Grassley. In 46 states, the legislature can empower the Governor to make a temporary appointment to a Senate vacancy, pending an election at a future point (timing varies by state). Three of the four (OK, OR, RI) that do not allow temporary appointments have a Senate seat up this year. Thus, of the 35 contested seats, appointments could be made for 32 of them; of those 32, 13 are in states with a Democratic governor and 19 are in states with a Republican governor. Three (Arizona, North Carolina, and Wyoming) require the appointee to be of the same party as the vacating Senator; North Carolina's Democratic governor would have to appoint a Republican to the seat vacated by Republican Thom Tillis. This means 12 Democratic appointees and 20 Republican appointees, creating a 50-47 Republican Senate. The President pro tem (as in the current Senate) would be Chuck Grassley of Iowa. But:

Acting President Mike Pompeo. Five of the states with contested seats that would need an appointment (Montana, New Hampshire, North Carolina, Texas, and West Virginia) have 2020 gubernatorial races. If the election for President, House, and Senate does not happen, neither can the election for governor. Absent a governor and lieutenant governor, succession would depend on the weeds of the organization of state government--is either house of the legislature a continuing body that would have a leader who could serve as governor? If not, no appointment is possible in those five states. This means loss of four Republican appointees (by Republican governors in New Hampshire, Texas, and West Virginia and cross-party appointment by a Democratic governor in North Carolina) and one Democratic appointee (by a Democratic governor in Montana). That leaves us with a 46-46 Senate. Absent some sort of compromise, there would be no President pro tempore of the Senate. The succession law takes us into the cabinet, beginning with the secretary of state. Unless:

Acting President Grassley. Suppose that anticipating these gaps, the Senators in the three states guaranteed a same-party replacement resign in December 2020 so the governor can make the appointment. Those would be Republicans in NC, TX, and WV. They would remain in those seats through January 3, 2021, making it a 49-46 Republican Senate that chooses Grassley as President pro tem, who becomes acting president. Or:

Acting Prsident Grassley. Alternatively, the terms for those five governors end after January 3, when the new Congress begins and the Senate vacancy becomes clear. Each thus could make an appointment then, before his term expires, adding four Republicans and one Democrat to a 50-47 Republican Senate. Unless:

President Trump. The Constitution empowers each state to appoint electors "in such manner as the legislature thereof may direct." Every state has directed electors be chosen by popular election. But facing such an emergency, states could change their laws to provide a different selection mechanism--legislative or executive appointment. A state presumably will enact a law changing its selection method only if both chambers and the governor are from the same party. Twenty-two states, for 219 electoral votes, have unified Republican control and will appoint electors to vote for Trump; 15 states + D.C., for 195 electoral votes, have unified Democratic control and will appoint electors to vote for Biden. Twelves states, for 124 electoral votes, have a Republican-controlled legislature and Democratic governor or vice versa, and one state has a divided legislature. Those states may be unable to agree on a selection method--the legislature will not give the governor of an opposing party the appointment power; the governor will veto any attempt to give the power to the legislature. So the electoral college votes for Trump over Biden, 219-195 (which Trump will call the greatest landslide in U.S. history). The Twelfth Amendment provides that the winner must obtain a majority of the whole number of electors appointed. Because those 13 states did not appoint electors (because there was no election and no alternative appointment mechanism), the whole number is 414; 219 constitutes a majority and Trump is reelected. Alternatively:

President Trump. Those 13 states, not wanting to be left out, could compromise and create a mechanism to split their electoral votes. Trump gets 281 electoral votes (219 + half of 124) while Biden gets 257 (195 + half of 124). Trump is reelected. Unless:

President Trump. The electoral votes must be opened and counted before a joint session of the House and Senate, presided over by the President of the Senate (i.e., the Vice President).  Because there was no election, however, there is no House. Is the Twelfth Amendment satisfied if only the Senate is present for the count? If yes, Trump is president. The answer to that question may depend on the composition of the Senate (see above). If no:

Acting President Grassley or Pompeo. If the votes cannot be properly counted, no one will have qualified as President or Vice President. We are back into the statute. There still is no speaker. Maybe there is President pro tem, depending on the composition of the Senate (see above). Or we are back in the cabinet. Unless:

President Trump or Biden? If coronavirus is the source of election interference, the answer may turn on how many states--and of what partisan composition--will take steps to enable meaningful, simple, and manageable vote-by-mail. The easy partisan answer is that Democratic-controlled states are more inclined to expand the franchise than Republican-controlled states; easy vote-by-mail is an expansion (enabling) of the franchise in this context. So the answer may be depend on who is willing and able to create better vote-by-mail systems.

I will close by saying this is a parlor game because I am bored right now. I do not expect Trump to interfere with the election. I do expect life to be normal enough come November to hold an election or that states will create mechanisms to handle it (one side effect of the current situation is the number of governors flexing their muscles in the absence of federal action). I believe there will be the usual transition of government power come January.

But blogs exist for these kind of parlor games. Feel free to weigh in.

Posted by Howard Wasserman on March 20, 2020 at 01:11 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


As for the states that require by statute that the governor appoint a replacement senator of the same party as the departing senator, are they enforceable? The 17th Amendment provides "[t]hat 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," but does the legislature's grant of authority to "empower" include a grant of authority to impose conditions on the exercise of that power? The original language on filling Senate vacancies provided that "the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies," which does not provide for any limit (other than the constitutional eligibility requirements, of course) on the governor's power -- it seems that the amendment at least implicitly carries that forward since the amendment's language doesn't explicitly contradict the original language. Also, The tamendment doesn't include language similar to the Elections Clause, which suggests a state legislature may not limit the executive's discretion under the amendment. Amar certainly takes this position, while Levinson predictibly argues for a reading that would contrain the abritrary use of the appointment power. Given the Supreme Court's passes in the RFK appointment case and in the Blagojevich (Obama) cases, this remains a nice parlor game.

Posted by: Jas. Madison | Mar 24, 2020 1:50:54 PM

With Arthur's note, we just might have a President Warren (Klobuchar) yet.

Or, perhaps a President Romney.

Posted by: Joe | Mar 20, 2020 10:50:21 PM

Arthur: Good point that they might take the selection of PPT more seriously. It could not be Biden or Trump, because the PPT must be a member of the body (unlike the Speaker of the House).

Posted by: Howard Wasserman | Mar 20, 2020 4:41:41 PM

Charles: I agree that it is very possible to run the election under the current circumstances. The issue is whether enough states (or the federal government) has the political will to take these simple steps. History suggests no. But that wasn't the point of this post.

Arthur: No violation because no one is being denied the right to vote on account of age. No member of the public is voting for the electors--the choice has been moved to the legislators.

Posted by: Howard Wasserman | Mar 20, 2020 4:39:47 PM

Or we could do 2 things: 1) absentee ballots for all registered voters and 2) voting at designated voting places for a 2-4 week period, with limits on the number of people allowed in line at a time and space separation as necessary. Step 2 would be conditioned on this kind of limited in-person voting being safe. These two steps expand on voting alternatives in use in many states. It would take work and commitment of resources to implement these steps, but I think its best to de-mythologize the idea that voting during the virus is some impossibly complicated thing to do.

Posted by: Charlie Martel | Mar 20, 2020 3:49:08 PM

Law professor hypothetical: A state changes its rules to decree that the state legislature elects members of the electoral college. The state has a minimum age requirement for state legislators greater than 18, as most do. 26th Amendment violation? What's the remedy?


Posted by: arthur | Mar 20, 2020 3:38:44 PM

Although the President pro tem of the Senate has generally been the seniormost member of the majority party, formally the position is chosen by a vote of the Senators. It doesn't even have to be a sitting Senator. Leahy is 80 and Grassley is 87, and probably don't particularly want to become President and might withdraw from the race. Regardless of their intent, if the Senators knew they were actually choosing a President they will probably elect either Trump or Biden to be President Pro Tem. Or maybe they would choose from among sitting Senators who are less elderly.

We know what happens if some states hold elections and others don't, since it happened in 1864. The states without elections have no representation in the electoral college.

Posted by: arthur | Mar 20, 2020 3:28:02 PM

While cancelling all elections is of course pure silliness, what about the significantly more likely (but still very far fetched) possibility that one or two states have an emergency cancellation? Suppose a state that is leaning towards Biden but which has a Republican governor, like Florida.

If they drop out, it deprives Biden of an important win and completely changes the electoral math.

Posted by: Derek Tokaz | Mar 20, 2020 2:51:47 PM

9 months ago it would have been my former dean.

Posted by: Howard Wasserman | Mar 20, 2020 2:38:49 PM

If you're doing presidential succession and noting the possibility of cabinet officials acting as acting president, and if you're tweaking instances of liberal paranoia (among a subset of liberals, I should think), then you mustn't forget that coming in at number 11 on the batting order is one of our younger current cabinet members, the secretary of labor: Eugene Scalia.

Posted by: Paul Horwitz | Mar 20, 2020 1:26:32 PM

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