Can We Have an Electoral Do-Over?
In a thread earlier, we were having a discussion about what would happen if it was determined that the 2016 presidential election was “stolen.” The idea being that if investigations found tampering with voting machines or ballots, what would then happen?
One commenter asked if we could have a new election. The short answer, as it says in the subtitle, is: No; we get once chance every four years to elect a president.
The longer answer, is a bit more complicated and requires going through various portions of the Constitution. So, let’s start at the beginning…
Technically, there is no constitutional right to vote for president. Article II, Section 1 states:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
The selection of Electors has evolved over time. In 1789, five states chose their Electors by state legislature action. Only Pennsylvania and Maryland had winner take all votes for electors, the other states chose electors by district (similar to what Nebraska and Maine do today).
Hamilton and Madison were proponents not only of the Electoral College, but believed that election of electors by district was the best way. Madison explained in a letter to George Hay:
The district mode was mostly, if not exclusively in view when the Constitution was framed & adopted; and was exchanged for the general ticket & the Legislative election, as the only expedient for baffling the policy of the particular States which had set the example.
Hamilton, being Hamilton, went so far as to draft an amendment to require electors be chosen by district. Obviously, it was not ratified.
Legislative elections fell out of practice fairly quickly, and South Carolina was the last state to end the practice, in 1860 (by 1832, South Carolina was the final hold out in selecting electors by popular vote). By 1836, every state had dropped district voting for electors.
Now, here’s where it gets a bit complicated: there is an implication that the selection of Electors should be by popular vote, per Section 2 of the 14th Amendment:
But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Similar language appears in the 24th Amendment:
The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
But neither of those Amendments specifically repeal the power of the state legislature to determine how electors are chosen. However, there is a federal law meant to give force to the 14th Amendment that has slightly different language, at 2 USC 6, it states:
Should any State deny or abridge the right of any of the male inhabitants thereof, being twenty-one years of age, and citizens of the United States, to vote at any election named in the amendment to the Constitution, article 14, section 2, except for participation in the rebellion or other crime, the number of Representatives apportioned to such State shall be reduced in the proportion which the number of such male citizens shall have to the whole number of male citizens twenty-one years of age in such State.
Obviously, the constitutionality of this law has never been tested, mostly because no state legislature has attempted to repeal popular voting for electors.
The only time I can recall the possibility of electors being selected by means other than popular vote was in 2000, during the Florida recount when there was an outside possibility that Florida would not be able to certify the vote in time to appoint its electors.
It’s also worth remembering that the only vote that really matters, is that of the electors. That’s why there was a push for faithless electors last year.
Now, the next issue is whether a president’s term can be cut short. Article II, Section one clearly defines the president’s term at four years, and by amendment that term starts at noon on January 20th. The 20th Amendment lays out the procedure if the president-elect dies or in the event no one has qualified as president (meaning nobody got to 270 electoral votes and the House had yet to elect a president). It even goes so far as to state that Congress can pass a law to determine who will be acting president in the event that nobody has qualified as president or vice-president. And the 22nd Amendment limits the amount of time one can serve as president to 10 years.
Finally, the 25th Amendment makes it clear that if the president is removed from office, dies, or resigns, the vice-president becomes president.
Here’s another interesting footnote, of history, under the Presidential Succession Act of 1792, if the office of President and Vice-President were to become vacant, the Secretary of State was to call for a special election for president by the following December (the Speaker of the House would act as president until the election was conducted). However, those provisions were removed in the Succession Act of 1886 and the Succession Act of 1947. Considering that the president who signed the 1792 Act was involved in the writing of the constitution (as were various members of the Congress who passed the bill), it would at least be logical to assume that such a law would be constitutional. But as it stands, there’s no procedure in place for such a special election (and given the nature of modern campaigns, it would be an absolute nightmare scenario; in addition to requiring states to set up some system for choosing electors).
We have contingencies built into the system in the event something goes wrong - the 25th Amendment gives the Vice-President and the Cabinet the ability to declare the president unable to perform the duties of his office (and also gives the president the ability to do so). We have a clear line of succession in the event of death, removal, or resignation. But what we do not have, is a means of conducting a special election for president.