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Thursday, April 02, 2020

(Still) More on 12:01 p.m., January 20, 2021

I shared my thoughts on what happens if President Trump declares an emergency and tries to suspend the elections and stay in office. A reader raises an issue as to my seventh option, so I amend my earlier argument slightly. [Update: This conversation has taken off on a listserv, so I am putting in a page break and adding some additional points]

1) I suggested in my original post that, in the absence of elections, state legislatures would adopt a new method of appointing electors. But I suggested only states with unified legislative/executive control would be able to participate, because no agreement would be possible in a divided government--a governor would not agree to legislative appointment  by a legislature controlled by the other party and a legislature controlled by one party would not give power to the governor. This affects eight states with Republican legislative control and Democratic governors, four states Democratic legislative control and Republican governors, and Minnesota, which has a divided legislature.

A reader suggests that the reference to "legislature" in Art. II § 1 gives the legislature the power to act unilaterally to appoint electors, without passing a law requiring gubernatorial approval or subject to gubernatorial veto. Legislature means the legislature itself acting on its own; legislature is not a synonym for "by law" (which would mean via the appropriate state lawmaking process). If so, 12 of those states (everyone but Minnesota, I presume) will appoint electors committed to the candidate of the controlling party: eight Republican legislatures for 93 votes for Trump, four Democratic legislatures for 28 votes for Biden. Trump wins 310-223. That would be a landslide.

This still assumes there is a House of Representatives to open and count the electoral votes or that the Senate can do so without the House; otherwise, we fall to Option 10. It also assumes the state legislatures can function come January if there were no fall 2020 election or that they act before their sessions end.

2) (A point that a commenter made to my original post): The President Pro Tem need not be the senior-most member of the majority. Instead, as someone argued on the list, the Senate will look for someone who would make a good caretaker President, would not be missed in the Senate, and is from a state with a same-party governor. In other words, if it goes to the PPT, do not assume it will be Leahy (Vermont has a Republican governor) or Grassley. But that raises several alternatives: 1) PPT goes to Leahy or Grassley or someone similar as a career-capper, a last act before leaving public service (hopefully on the assumption the person also would make a good caretaker); 2) the PPT, whoever it is, declines because he does not want to surrender his Senate seat, leaving us with Acting President Pompeo; or 3) the PPT has confidence (if not an outright quid pro quo) that his same-party governor will reappoint him to his vacated seat once a President is selected.

3) Another list member offered this: The Speaker need not be a member of the House. This means her term as Spreaker is not constitutionally capped at two years and does not run with the term of the House. So the current House could, prior to January 3, name Hillary Clinton (although not a member) as Speaker with a term to run until the House selects a new Speaker, whenever that is. The current House also could extend the length of Pelosi's term as Speaker, allowing her to remain as Speaker after her term as representative ends on January 3. There thus is a Speaker on January 20 who can resign and act as president. This is a cute idea, but it raises several questions:

    Regardless of what a prior House did, can there be a Speaker of the House if there is no House (as there will not be come January 3 if the states cannot hold elections)?

    Can a Speaker who is not a member of the House qualify to act as president? Section 19(a)(1) says the Speaker acts as president "upon his resignation as Speaker and as Representative in Congress." On one reading offered by a list member, only someone who holds both the Speakership and a seat in Congress can act as president because only someone who holds both can resign both. An alternative reading (which I prefer) is that it means the person must resign whatever positions she holds--if the Speakership and a seat, she must resign both; if only the Speakership, she resigns that. As another member argued, the "resign both" language likely was intended to avoid an Incompatibility Clause problem--make sure a person could not act as president while retaining her legislative seat. But that purpose does not support reading the text to limit the class of Speakers who can act as president.

All of which is to say that this does not begin and end with what states do with the electors. The range of legislative options is greater than I suggested in the original post.

Posted by Howard Wasserman on April 2, 2020 at 03:19 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

Comments

I disagree. I think the nature of academic inquiry and of blogs and of parlor games is to think about questions such as this. I don't think it normalizes anything, especially since, as I said in the original post, this is a lark that is unlikely to happen.

Posted by: Howard Wasserman | Apr 3, 2020 5:12:19 PM

At the risk of piling on to my previous comment, things like this normalize the idea of postponing the election and suggest there is credence to the idea that it is not possible to hold it because of the virus. The reality is that holding the election as scheduled is as easy as dedicating the money needed to expand already existing voting alternatives to in-person, one-day elections. Mail-in voting, no cause absentee balloting, early voting extended for weeks before election day--all of these things are done all over the country. Virus conditions permitting, in-person voting can be done like my grocery store--with a limited number of people inside and everyone spread out safely every day for a few weeks. Let's save scenarios where state legislatures make Pat Leahy or Chuck Grassley president for the zombie apocalypse or an alien invasion.

Posted by: Charlie Martel | Apr 3, 2020 4:59:58 PM

At the risk of piling on to my previous comment, things like this normalize the idea of postponing the election and suggest there is credence to the idea that it is not possible to hold it because of the virus. The reality is that holding the election as scheduled is as easy as dedicating the money needed to expand already existing voting alternatives to in-person, one-day elections. Mail-in voting, no cause absentee balloting, early voting extended for weeks before election day--all of these things are done all over the country. Virus conditions permitting, in-person voting can be done like my grocery store--with a limited number of people inside and everyone spread out safely every day for a few weeks. Let's save scenarios where state legislatures make Pat Leahy or Chuck Grassley president for the zombie apocalypse or an alien invasion.

Posted by: Charlie Martel | Apr 3, 2020 4:59:58 PM

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