The Founders produced a remarkable document at the Constitutional Convention in 1787, ably explained and justified in the Federalist Papers - for the most part. But there were also some bloopers:
And what happens in these cases?
Suppose a sufficient number of states adopt the National Popular Vote Interstate Compact, but the first time it is in effect, the national popular vote is so close that it is immediately disputed... but some secretaries of state, not necessarily of Compact states, for reasons of political advantage, refuse to order a recount in their state.
Why do we elect a vice-president? He might become president but probably won't. In the meantime, to be useful, he has to be somebody chosen by the president. What happens if the vice-president becomes useless to the president, without committing a crime or going insane. Might as well let the president choose a new vice-president, subject to confirmation by Congress.
Have you read the 12th Amendment? It's nuts. We need a more clearcut way of resolving indecisive elections - If we're going to have electoral votes, we need a rational way of resolving a lack of majority. And it might as well apply any time we need a president fast.
A president or vice-president proves to be plainly incompetent but not criminal or mentally disabled.
A presidential nominee secures enough delegate votes to win the party's nomination at its convention, but before the convention, dies, becomes incompetent, or lands in prison.
A presidential or vice-presidential nominee, between the time of the nominating convention and the election, dies, becomes incompetent, or lands in prison.
Some states used to have a concept of "failed elections" that did not produce a majority winner. Now most states accept a plurality, but the Presidential Election Day Act of 1845 still provides for "failed elections" without saying what those are. It's an ambiguity that Republicans have been eager to exploit, so far without success. It should be repealed or updated - it's a Federal statute, not part of the Constitution.
Good news - the case of a dead elected but not yet inaugurated president or vice-president seems to be handled by the 20th Amendment.
It's too late to fix these issues for 2020, but maybe we can make some progress by 2024.
The advocates of a direct presidential election might not have thought through the most likely failure modes, particularly in the light of the phenomenally bitter partisanship of the 2020 election. In the event of a disputed outcome, can we expect to recount the entire country in time? What if some states decline to recount? Do residents of other states have standing to sue?
Within our constitutional system, the Federal government has powers, the states have powers, but interstate compacts have no constitutional standing at all. That system is apt to fail, bitterly, the first time there is any dispute as to outcome.
It's much more robust to have a number of smaller pieces, most of which will have clear outcomes, so the scope of recounts is as small as possible One way to do this is to have one electoral vote for each House district. Maine and Nebraska already do that. That way disputes about elections are relatively easy to resolve and entirely in-state.
Of course, any scheme base on House districts depends on an unbiased drawing of district boundaries. That's a direct attack on Republican minority rule, and intense opposition can be expected.
There is a problem with the two extra electoral votes each state has as part of the Constitution's rural bias.
All these plans have the defect that they need to be imposed nationally. California will not voluntarily and unilaterally adopt the Maine/Nebraska plan, giving up electoral votes to the Republican candidate, unless another large Republican state does so simultaneously - Texas comes to mind.
Of course there is no need for Article 2's actual convening of electors in state capitols on a specified date. It would suffice for the secretarys of state to transmit the election results to the president of the senate - in other words, the vice-president - on the appointed day.
The president should be able to nominate a new vice-president at any time. The nomination can be vetoed by a 2/3 vote in either house of Congress. Such vetos would probably never occur because the president would take care to nominate a suitable candidate. Note that getting 2/3 votes from Senate or House on almost any topic more contentious than adjournment is very difficult.
In the normal course of events, the vice-president would continue to be the one nominated at the same party convention as the president. But allowing a nomination at any time allows efficient dealing with defective persons or relationships on the rare occasions that's needed.
For all the times when the office of president is vacant or filled by the wrong person, and the times when the general election produced an inconclusive result - we need a plan B, actually a plan C, for Congress.
At any time when the office is occupied, the House may nominate a new president by 2/3 vote. The Senate then has three days to veto the nomination by 2/3 vote; at the end of three days, the nominee is sworn in.
It's the same at any time when the office is not occupied, due to death or resignation or rapture, except the House may nominate by a simple majority vote. Again the Senate then has three days to veto the nomination by 2/3 vote; at the end of three days, the nominee is sworn in.
During the time that the office is vacant, the vice-president assumes the powers of the president, but not the office. Likewise, when the office of vice-president is vacant, the president assumes the powers of the vice-president, but not the office.
Suppose AF1 and AF2 collide and both president and vice-president are lost simultaneously. There needs to be a president pro-tem designated by statute, in advance, who is geographically remote from Washington DC (in case of nuclear attack or massive natural catastrophe), who assumes presidential powers but not the office until Congress acts. The Speaker of the House seems to be that person currently, but the Speaker has other important duties and might be unavailable for the same reasons as the president and vice-president. A retired president, vice-president, or speaker living 1000 miles or more from DC would be a suitable choice.
Congress has wrestled with these issues and mostly lost the wrestling match. The Presidential Succession Act, as amended several times, governs but fortunately has never been invoked. Better to have a simpler plan laid out in advance.
Any plan based on the House has to be based on individual votes by members
(not by state delegations as in the 12th Amendment) and House districts must
be fairly districted. Otherwise no Democratic support.
There is nothing to buy or sign up for on this website.
Please report dead links, typos, and factual errors to
web-report at comcast dot net
Visitor count for this page starting 20 September 2020: .
2020-crises.html 1.9 21/05/11