Argument

The Obscure Constitutional Loophole That 2020 Is Blowing Wide Open

The United States has a law for disputed elections—but it’s not ready for this year's presidential vote.

The Resolute desk as U.S. President Donald Trump and Israel Prime Minister Benjamin Netanyahu meet in the Oval Office of the White House  March 5, 2018 in Washington.
The Resolute desk as U.S. President Donald Trump and Israel Prime Minister Benjamin Netanyahu meet in the Oval Office of the White House March 5, 2018 in Washington. Olivier Douliery-Pool/Getty Images

When U.S. President Donald Trump tweeted on July 30 his suggestion to delay the presidential election—and questioned whether the November vote’s results would be known for “months, or even years”—the response by political experts and observers was both an overreaction and an underreaction. As many quickly pointed out, it takes a lot more than presidential whim to delay an election. The president’s and vice president’s terms end at noon on Jan. 20 whether their successors have been elected yet or not—and the line-of-succession statute dictates what happens next, putting the speaker of the House of Representatives first in line for the presidency, followed by the president pro tempore of the Senate.

The law, then, is clear about how to handle the failure to decide an election on time. But applying the law is another matter—and there’s reason to fear the United States could find itself with precisely what the existing law was intended to prevent: an acting president of disputed legitimacy. Unless Congress quickly rethinks its existing succession laws, the current system could take an already bad situation of a delayed, disputed presidential election and make it even worse.

The problem centers on the reliance on Congress for the line of succession. Having the speaker first in line fails to account for the fact that the terms for all 435 House members expire on Jan. 3. If a presidential election is delayed and unresolved because of disputes over the validity and timing of mail-in ballots, many individual House elections—decided by those same ballots—would probably be delayed and unresolved too. The result would be fierce fighting over huge swaths of the House’s membership. Majority control could change chaotically from day to day as a partially filled House wrestled over each new batch of individual election results, amid a fog of state recounts and litigation. Without at least 218 seats filled, there would not even be a quorum, meaning there would be no speaker at all.

The backup is the Senate side, where the terms of only about one-third of the senators will expire on Jan. 3. The other two-thirds of the Senate will be able to form a quorum and choose a president pro tempore. But just like in the House, delayed election results could lead to intense political combat over the 30-odd seats up for grabs, with majorities shifting daily. Complicating matters, governors in some states might try to appoint people to fill vacant seats temporarily—assuming it’s clear after the election who the governors even are. As such, the president pro tempore could be chosen by a majority of questionable legitimacy, formed through a combination of confusion, litigation, and partisan shenanigans.

Inauguration Day succession doesn’t have to be this disorderly, though. Indeed, the Constitution suggests that it isn’t supposed to be.

Section 3 of the 20th Amendment, ratified in 1933, addresses the problem of unresolved presidential elections. Before the 20th Amendment, there simply would have been no president in such a situation—a fate that was avoided very narrowly in 1877, when the presidential election disaster was settled just two days before the start of the term. The 20th Amendment authorizes Congress to pass a law to fill this gap, so that someone can act as president until an elected president can be chosen. For midterm crises (when something happens to both an elected president and vice president), Congress had already been authorized by Article 2 of the Constitution to predefine a line of succession, listing “what Officer shall then act as President.” But the 20th Amendment gives Congress an additional option for Inauguration Day succession: predefining a process instead of a list. In other words, Inauguration Day succession could be figured out more flexibly, on the spot. Moreover, the 20th Amendment opens Inauguration Day succession to any “person,” not just the limited class of “officers” allowed by Article 2.

Congress has never taken its new, broad 20th Amendment powers seriously, however. For 14 years Congress took no action at all. When it finally did act, in 1947, it just lumped Inauguration Day succession and midterm succession into the same system (speaker, then president pro tempore, then members of the cabinet), instead of defining a separate process for Inauguration Day succession. This one-size-fits-all approach is still the law today.

But there are good reasons the 20th Amendment allowed for Inauguration Day succession to be distinct from midterm situations. One is that while continuity is ordinarily a key concern for a succession law, on Jan. 20 continuity is barely a factor at all. The start of a new presidential term is the only time when turning over power to a completely different team is supposed to happen. The very premise of Inauguration Day succession is that control of the presidency would be up in the air. As such, a more wide-open process makes more sense.

Relatedly, in the middle of the term, if something sudden happens to both the president and vice president, it will be well-settled and obvious who the speaker and president pro tempore are. But as noted earlier, on Inauguration Day, if there is no new president or vice president yet because the elections are in chaos, the selection of the speaker and president pro tempore likely will be in chaos as well. It’s like having a building that is on fire, and handing over the decision of who is in charge of it to the people in the next building… which is also on fire.

The current system also produces skewed incentives. The basic minimum requirement of a democratic republic is to have timely elections. When elections are delayed or disputed, there should be incentives for resolving the situation swiftly and fairly. But while both sides would want a disputed or delayed election to be resolved in their favor, one side—the side poised to control the acting presidency—would more easily tolerate delay. The portion of the country that supports the speaker’s or president pro tempore’s party would have less reason to work ardently toward a fair resolution. And if the chaos was such that in the days leading up to Jan. 20 nobody knew which side would choose the speaker or president pro tempore, it would make things even worse. Both sides would have an incentive to prolong the delay, to buy more time to win the fight for control of the House or Senate.

If Congress used its 20th Amendment powers to create a more open and flexible process, it could avoid these problems. First, it could seek out someone to act as president who does not have a direct stake in the outcome—unlike congressional leaders, who would be playing current, prominent political roles. One obvious set of people who are on the sidelines, but who would still be capable temporary caretakers, are former presidents. Barack Obama, George W. Bush, and Bill Clinton all have the background to handle the task (Jimmy Carter, who would be 96 years old by that point, would be less suitable).

To be sure, Obama, Bush, and Clinton would each be objectionable to tens of millions of Americans for sincere political reasons. But the same would be true of the speaker and president pro tempore. (And, of course, it would also be true of whoever eventually wins the election.) The point is not to choose someone acceptable to all Americans—no such person exists. The point is to have an experienced hand other than the departing incumbent at the helm during a tumultuous, uncertain, but ideally brief time.

The “other than the departing incumbent” part is important. The problem with letting the incumbent stay on past their term is obvious if the incumbent president is one of the candidates in the delayed election. But it would be unseemly even if the incumbent were playing no role in the election or its resolution. In fact, in December 2000, a New York Times op-ed suggested taking time to carefully resolve the Florida recount and letting Bill Clinton stay on for a few weeks. This suggestion fell flat, despite Clinton’s mid-60 percent approval ratings. Combining “no election result” with “the current president stays in power indefinitely” sends an unacceptable message in a democratic republic.

While the 22nd Amendment bars Presidents Obama, Bush, and Clinton from ever being elected again, its terms do not disqualify them from temporarily acting as president. Indeed, the inability of two-termer presidents to run again makes them more desirable for this short-term role—one-term presidents might have designs on returning to office someday, making them less suitable to be a placid caretaker. But even one-termers could be suitable, so long as they left office in dignified defeat like Carter, Gerald Ford, and George H.W. Bush. Less appropriate would be a president who, whether elected once or twice, left in disgrace like Richard Nixon.

If Congress wanted to put ex-presidents in the mix to be acting president, it could legislate the criteria—how old is too old, how defeated or disgraced is too defeated or disgraced, and so on. But there will not always be a stocked stable of ex-presidents. It might therefore make sense to expand the list to include other experienced and widely respected elder statesmen and stateswomen, like former vice presidents or secretaries of state.

These are just suggestions. There is nothing magical about these lists; there might be other capable figures who would be worth considering, including current members of Congress. The point is that a 20th Amendment process could choose an acting president from lists of people like these, and that this would have many advantages over the current law.

That leaves the question of what selection procedures Congress should enact. In addition to expanding the list of candidates as described above, the process could require bipartisan consensus. Instead of selecting the acting president by a bare majority of a rump House or Senate with a disputed membership, three of the four party leaders in the House and Senate would need to agree. If Nancy Pelosi, Kevin McCarthy, Chuck Schumer, and Mitch McConnell (or whomever the leaders are after the next election) can agree on an acting president, that bipartisan stamp of approval would give the acting president substantial legitimacy.

Moreover, requiring such a consensus would make the choice more moderate—a Colin Powell type rather than a Pelosi or McConnell type—and would reduce the number of Americans who find the acting president objectionable. In normal times, the U.S. electoral system is not really aimed at choosing the most unobjectionable-but-competent candidate, but when it comes to choosing a short-term caretaker president that criterion has much to recommend it.

Consensus might not be a realistic expectation, though. It might be hard to choose party leaders if congressional elections are still up in the air. And regardless, the two parties have become so polarized in Congress that we cannot take it for granted that they could reach a consensus, let alone that they would do so quickly in the midst of election delays and disputes. This is where randomness could be useful. A new law could predefine a pool of qualified, legitimate potential acting presidents, with an equal handful from both parties. A neutral figure (say, the chief justice) could make the random selection from that pool. To balance things further, the acting president’s term could be time-limited; if the dispute over the presidential election went on too long, another drawing could be held to pick a different acting president. And so on.

Again, these are just ideas. Regardless of what method is chosen, having some system in place—so that there is always somebody in control of the presidency—is key. In the 87 years since the 20th Amendment was ratified, Congress has never had a careful debate about unresolved presidential elections of the sort that may now be on the horizon. Now is the time to have it, if it is not too late already.

 

Brian Kalt is a professor and the Harold Norris faculty scholar at Michigan State University College of Law. He is the author of Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies.

Trending Now Sponsored Links by Taboola

By Taboola

More from Foreign Policy

By Taboola