I’ve published this essay, which steps back from all the specific legal issues surrounding the election to bring to the surface an underlying question about why our legal system leaves us so much uncertainty about such vital questions.

From The Conversation:

As I’ve Zoom-traveled the country speaking about legal issues involving the election, I have found myself, as well as audiences, bewildered and frustrated by one underlying question: Why is there so much legal uncertainty about so many critical questions concerning the rules for resolving a disputed presidential election?

If ever a need existed for clear legal rules established in advance, before we know whose ox will be (Al) Gored, that situation is it….

After a decade of deliberations, Congress bequeathed the Electoral Count Act in 1887, designed to provide the framework, which still governs today, for how Congress should deal with a state that certifies two or more slates of electors.

Yet for all that deliberation – or maybe because of it – the Electoral Count Act is still riddled with major legal uncertainties. So are other federal statutes that govern the election….

But what if – more relevant this year, perhaps – a state cannot quickly enough to determine who has won the vote? That means reaching a final resolution, including any litigation that could affect the outcome, by the time the Electoral College must vote on Dec. 18. Can a legislature assert the election has “failed,” step in and directly appoint the electors itself? Yet the act contains no definition or examples of a “failed” election.

That is a rather large question to leave up in the air….

Now the courts enter the picture – or more accurately, this is where you might expect the courts to enter the picture. But they don’t.

If the courts had given a definitive interpretation of what it means for an election to have “failed,” there would be a settled meaning of this term and other unresolved ones, in this law and others, in advance of the election.

The Supreme Court has also never interpreted the Electoral Count Act. Nor will there be any ruling on what a “failed” election means before the moment when Americans actually face potentially explosive political conflicts over exactly that issue.

The reason is that our federal courts, unlike those in some states and other constitutional democracies, will not address any legal issue unless it arises in the middle of what’s termed an actual “case or controversy.” Though this principle rests on a thin historical foundation, it is as deeply embedded in American legal doctrine as any principle.

In legal terms, the federal courts will not issue advisory opinions. That means federal courts will refuse to answer any question in the abstract about the legal meaning of a statute, including whether the statute is even constitutional, no matter how important it might be to have clear guidance on what those laws mean.

This principle is conventionally described as a way of limiting the role of federal courts in American democracy. Courts will resolve disputes over the meaning of law only when they absolutely must enter the fray. The “case or controversy” constraint is also linked to proper respect for the separation of powers.

But as this election and many other contexts illustrate, this doctrine can also be dangerous for the country, as well as the courts themselves. The last time Americans want to discover the proper meaning of laws like the Electoral Count or Presidential Election Day acts is precisely in the midst of an actual controversy over who will become president.

At that moment, the courts are no longer operating behind a veil of ignorance, which would mean they were blind to any knowledge of who would benefit. They will be aware of which candidate is more likely to benefit from a ruling one way or the other.

Worse than that, even if the courts decide that question in exactly the same way they would behind that veil, the half of the country whose candidate loses will almost certainly perceive the courts as having acted for the purpose of favoring that candidate. That is almost inevitable, as I said at the time of Bush v. Gore.

One major purpose of a well-constructed legal regime is to provide a clear framework in advance for resolving contentious issues. Being in conflict about the very content of those rules, at the same time we are trying to apply them to resolve those issues, is sure to make these conflicts all the more divisive.

The country does not want to be debating how long the term of office for a president ought to be at the same time it is choosing a president, which is why the Constitution specifies the four-year term.

But to settle the meaning of many rules on the books, judicial interpretation is required. Yet that is exactly what the “case or controversy” requirement precludes – until we are in the midst of that controversy.

This is why audiences I talk to are frustrated at discovering that legal experts offer conflicting views, or give “on the one hand, on the other hand” answers to questions about exactly how a disputed election might arise and be resolved. In the name of limiting their own power, the federal courts leave us at sea until the boat is nearly capsizing.