Should Congress Establish an Electoral Commission to Handle Disputes over the 2020 Presidential Election?
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.
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