NYT: “There’s Still a Loaded Weapon Lying Around in Our Election System”

Here’s my latest piece on the election for the NY Times. I want to thank a number of other election-law experts who contributed their insights to this:

The 2020 election revealed longstanding fractures in the foundation of our system for conducting presidential elections. Before these lead to an earthquake in a subsequent presidential election, we need to shore up that foundation.

The single most dangerous threat the election exposed was the prospect of legislatures directly appointing a state’s electors and overriding the vote of the people in that state. No state legislature has attempted to do this since at least the Civil War. But in the run-up to the 2020 election, this seemed the most likely means that might circumvent the voters and subvert the election. This concern has been proven warranted: After the Trump campaign’s post-election lawsuits failed around the country, its strategy was precisely to get state legislatures in key swing states to appoint the electors themselves. . . .

There is no legal basis for what the president is urging, but it calls attention to a previously obscure provision in federal election law. This provision, known as the “failed election” provision, lies around like a loaded weapon. It is the only place in federal law that identifies circumstances in which, even after a popular vote for president has been taken, a state legislature has the power to step in and appoint electors….

When Congress was creating the Presidential Election Day Act, the “failed election” provision was added at the insistence of representatives from New Hampshire and Virginia. At the time, New Hampshire required that a candidate had to receive a majority of all votes cast to be elected. A candidate who finished first but with only a plurality of the vote was not elected. The backup process in New Hampshire, as in other states that similarly required a “majority of votes” to win, was either that the legislature would appoint the office holder or that a second election would be held. Thus, these states would not be able to choose their presidential electors on Election Day, whenever no candidate received a “majority” of the votes — which would happen with third-party candidates on the ballot. When the bill was next debated, the House responded by adding the “failed election” provision now found in current law.

The history of why federal election law includes this “failed election” provision is part of the story of how democracy was understood early in American history. Many state constitutions initially included these “majority” vote provisions. This reflected the link between democracy and “majority rule” as that was understood early on. But as experience with democratic elections developed, states soon discovered that many elections involved a candidate winning a plurality, but not a majority, of the votes. That would trigger a backup provision in state laws — a provision that provided either that the election would be held repeatedly until someone received a majority of votes, or that the legislature was empowered to bypass an election and appoint the officeholder (the current Georgia Senate runoff elections are a remnant of this history)….

The adoption of these “plurality vote” rules eliminated a major reason for the “failed election” provision. Two different, contemporary purposes might still warrant retaining a version of this provision, but if so, the provision needs to be rewritten to address these two specific situations in safer, narrowly defined terms.

First, a natural disaster or similar event might make it temporarily impossible for a state to vote on general Election Day. But in many contexts, states will be able to recover from these disasters quickly enough to hold the election within a week. State laws, enacted in advance, should provide for these foreseeable emergencies. Federal law, in turn, should permit a state to choose its electors after Election Day in this rare circumstance when it is impossible for a state to hold elections on Election Day.

Second, it is possible a state might not be able to certify its vote before the date the Electoral College must vote, which would risk depriving the state of its vote. That could happen if unresolved litigation raises legitimate challenges and the judicial process cannot be finished in time to certify a winner before the electors must vote. Leaving open a small window to account for this rare possibility might be necessary, but the scope of this power must be extremely limited. Indeed, one strategy of the Trump campaign was to exploit this possibility by dragging out court cases long enough for state legislatures to “have” to step in….

The American people, not state legislatures, should choose the president. The “failed election” provision, which lies around as one of the greatest threats to that principle, was created in significant part for reasons that no longer apply. To preserve the integrity of presidential elections, Congress needs to modernize that provision and define clearly the extremely limited, highly unlikely circumstances in which it might ever legitimately come into play.

This essay builds off an article I wrote with Michael Parsons, The Legality of Ranked-Choice Voting.

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