The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
It's no secret that, if the presidential election turns out to be close, there might be serious disputes over who actually win. President Trump has repeatedly suggested he might not accept an election result that goes against him, claiming that any such defeat would be the result of fraud. Many Democrats might at the very least be deeply suspicious of any close win for Trump. Add in the reality that increased mail-in voting might mean that the results will remain unclear for a long time after election day, and there is the potential for a serious crisis over disputed election results. In an insightful recent LA Times op ed, Yale Law School Prof. Bruce Ackerman and Democratic Rep. Ro Khanna, describe the potential dangers, and propose a possible solution:
President Trump's claim that only "a rigged election" will yield a Democratic victory poses the risk of a constitutional crisis far beyond anything Americans witnessed in Bush vs. Gore, when the Supreme Court precipitously intervened to award the 2000 election to George W. Bush. Two decades later, the best way to confront the looming crisis is to enlist the Supreme Court in a very different fashion — by creating a special commission, headed by Chief Justice John G. Roberts Jr., to oversee the disposition of any disputed state election results….
After a presidential election, when Congress reconvenes early in January, the nation's 435 representatives and 100 senators are required to meet in the House chamber in a special joint session. The Constitution designates the sitting vice president to preside over the proceedings — in 2021, Mike Pence will be in the chair….
Precedents established by Thomas Jefferson in 1800 would permit Pence to invalidate a particular state's electoral returns on the grounds that the underlying vote-count was generated in an illegitimate fashion — that it was rigged.
Pence could refuse to allow the House or Senate to consider a state certificate that he found fraudulent and eliminate its electoral votes from the overall tally. That would reduce the number of electoral college votes required for a majority. If Pence used his prerogative in a partisan manner — for example, invalidating close results that favor Biden, but accepting those that favor Trump — he could mathematically upend the overall election.
If that seemed likely to happen, House Speaker Nancy Pelosi could play some legal and political hardball of her own. She could refuse to hand over the gavel to the vice president when Pence arrived in the House chamber to call the special January joint session into existence. That would make it impossible for Biden or Trump to claim the authority to be sworn in as president, and according to the Presidential Succession Act of 1947… it is the speaker who is third in line if neither the president nor the vice president can serve. Pelosi could forestall a handoff of the presidency to Trump by becoming "acting" president herself.
Either of these courses of action — Pence interfering with the election results, Pelosi refusing to allow Pence to call the joint session — would provoke political chaos, street demonstrations and even violence as the nation approached "noon on the 20th day of January" — the moment when the Constitution explicitly states that term of the "current President and Vice-President shall end…"
Congress would be wise to act now to prevent the passions of January from spinning out of control.
The disputed presidential election of 1876 serves as a crucial precedent. It pitted Democrat Samuel Tilden against Republican Rutherford B. Hayes and involved contested election returns from several southern states. Rather than relying on the usual joint session, Congress delegated the job of resolving the controversies to a special commission — five Supreme Court justices, five senators and five House members….
For the 2020 election. Congress should immediately create a commission similar to the Tilden-Hayes panel. In this case, the right makeup would be five Supreme Court justices — two liberals and two conservatives, with Roberts as chairman. If the commission began monitoring the electoral process now, it could make fact-sensitive judgments on the accuracy of state vote counts come January. Pelosi and Pence should make clear their intention to abide by the decisions reached by the commission.
I am not sure Pence and Pelosi could really get away with taking the sorts of actions Ackerman and Khanna describe. But the risk of this and other kinds of skullduggery is real, as is the danger of crisis and civil unrest.
There is considerable merit to Ackerman and Khanna's proposal for mitigating the danger. In particular, there is value to committing to an impartial dispute-resolution mechanism before the details of any election controversy become known. If there is broad, advance bipartisan agreement in Congress to abide by the decisions of the electoral commission, that would make it much more difficult for Trump - or anyone else - to refuse to accept the results. Thus, the risks of a dangerous constitutional crisis might be averted.
While the general idea here strikes me as sound, there may be some devils lurking in the details. Here are some that occur to me:
Appointing Chief Justice Roberts as chair may not be wise, given that many conservatives think he has "betrayed" them in various ways, a sentiment deepened by several votes he cast in ideologically charged cases this past term. Many on both right and left also regard him as politically shifty, and therefore might view any decision where he cast the pivotal vote with suspicion.
If the Electoral Commission must have a Supreme Court justice as chair, I tentatively propose that it be co-chaired by justices Elena Kagan and Neil Gorsuch. Both have strong support from their respective sides of the political spectrum, but also at least some substantial credibility on the "other" side.
I am also wary of a Commission where all the members are Supreme Court justices. If the justices on the Commission reach a decision that is seen as wrong or illegitimate by a large part of the country, that could further politicize the Court and make it vulnerable to attacks on judicial independence. The Court's growing popularity has given it some protection against court-packing and other possible schemes to weaken judicial review. But that popularity might erode if a commission composed exclusively of SCOTUS justices decides a disputed presidential election in the present atmosphere of severe polarization (which, as Ackerman and Khanna note, is far worse than that which existed at the time the Court decided Bush v. Gore in 2000). That said, the Court's public image has bounced back from many previous controversies that critics claimed would erode its legitimacy (including Bush v. Gore itself), and perhaps the same thing would happen here.
Nonetheless, other things equal, I would prefer a commission that included at least some non-SCOTUS members. As Ackerman and Khanna note, the 1876 Commission include ten members of Congress alongside five Supreme Court justices. I am not sure including members of Congress would be a good idea this time around (the vast majority of them are highly partisan figures). But perhaps it might be possible to find other non-SCOTUS members with greater credibility across the political spectrum.
Finally, it's worth noting that the 1876 election far from an entirely positive precedent. The Commission ended up splitting along partisan lines, with the eight Republicans all voting to award the 20 disputed electoral votes to GOP candidate Rutherford B. Hayes, while the seven Democrats all concluded they should go to Democratic nominee James Tilden. As a result, many Democrats never really accepted the idea that Hayes' victory was legitimate, and they continued to denounce him as "Rutherfraud" B. Hayes.
The conventional wisdom about 1876 holds that such acceptance as Hayes did achieve was in large part bought at the price of the "Compromise of 1877," in which Republicans agreed to ease up on pressuring the southern states to protect the civil and voting rights of African-Americans, in exchange for Democratic acquiescence to Hayes' win. Ackerman has questioned the standard account of 1877 in his academic work, and perhaps he is right. Still, using 1876 as a model is not without risk.
At the same time, it may be that a commission created in advance will have more credibility than one established on an ad hoc basis after a crisis has already begun. In addition, an 1876-style split along partisan lines might be avoided by requiring the commission to reach decisions based on a supermajority. For example, if there are five members, perhaps 4 of 5 will need to agree to make any binding decision.
Despite these possible reservations, I think the commission idea is a promising one, and at the very least deserves serious consideration.