Law professors, historians, political scientists, journalists, and campaign veterans discuss the the origins, history, and…. It was on this day in that the House finally decided a tied presidential election because of a constitutional flaw: the…. In this session, students learn about voting rights in America through a historical exploration of the right to vote in America. Town Hall Video The Past, Present, and Future of Presidential Elections Law professors, historians, political scientists, journalists, and campaign veterans discuss the the origins, history, and….
Although the provision does not directly disqualify a vice president who is from the same state as the president, the provision disqualifies the electors from that state from voting for both offices. Prior to the election, both presidential candidate George W.
Bush and vice presidential candidate Dick Cheney lived in and voted in Texas. To avoid problems with the inhabitant clause, Cheney registered to vote in Wyoming, where he previously lived. The Twelfth Amendment also specifies how the president and vice president are to be selected should neither candidate obtain the votes of a majority of the electors: the House of Representatives selects the new president from the top three candidates.
This is a slight variation from the original provision, which allowed the choice from among the top five candidates. However, the vote within the House is by state, not by representative. We note at the outset, however, that some of these paths may invoke questionable legal arguments e.
Instead, our goal is to show how some political actors might nevertheless try to assert these types of claims, and what recourse remains when they do.
The 12th Amendment to the Constitution, adopted in , states the relevant law for the Electoral College — the process for selecting our President. Unfortunately, the wording of that amendment is confusing and, as a consequence, presents difficulties.
Congress attempted to cure those difficulties in the Electoral Count Act of This one-hundred-and-thirty-three-year-old act has been roundly scorned by scholars as almost unintelligible. But that act is what will govern our process for determining who becomes President, if the result is contested in particular ways.
Imagine that on election night and the following morning President Trump is leading in all four states. Nonetheless, electors for Trump meet and cast votes for him even though the count continues while litigation e. The Governors, however, await the completion of the count, which Biden ultimately wins. This is an extremely unlikely outcome if Republicans control the Senate. There are other grounds to object. One credible legal argument is that the vice president serves only a ministerial role in presiding and lacks authority to rule on the requirements of the Electoral Count Act.
Yet another argument is, of course, that the competing submissions from these states simply do not qualify for the safe harbor statutory provision. Members also might assert that the certification of electors violates state law in that the certification is based on only a partial popular vote count or that litigation in state court had not concluded. All objections would be expected to fail either a House or a Senate vote depending on how the objections are worded and how the question is presented.
Objectors might hold out hope that the Supreme Court can be persuaded to intervene. As an alternative scenario to avoid this outcome, the Governors of Pennsylvania and Michigan, anticipating the move by their Republican Legislatures, could themselves certify Biden electors to the Congress on or before December 14 even though the count is incomplete. This also assumes the Biden electors had met and voted on December 8. After all, if as a matter of political authority the Republican Legislatures can certify electors on the basis of an incomplete vote, so should the Governors be able to do so — the critical difference being that the Governors would be acting in good faith to allow all the votes to be counted.
If the Governors do so, they would then have until the congressional session on the afternoon of January 6th to recertify electors under state seal backed up with a full count. And the recertified electors based on a fully counted vote should prevail in both House and Senate.
This scenario could play out in each of the states with Republican Legislatures and Democratic Governors — Michigan, North Carolina, Wisconsin, and Pennsylvania, and perhaps in other states as a way to buy time to complete their vote count.
A clear win for democracy and for the republic.
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