2 years ago
The latest drip, drip, drip of news surrounding the effort to overturn the 2020 election underscores how much we still don’t know about the run-up to Jan. 6, 2021. But one thing that’s clear is that the procedural steps used to select the next president are ripe for abuse.
Congress has finally begun to turn its attention to this issue, with a bipartisan group of lawmakers focused thus far on fixing the Electoral Count Act. The 1887 law regulates the process through which Congress counts the electoral votes after each presidential election; it also has a host of ambiguities, many of which were seized on by former President Donald Trump and his supporters to try to keep him in office despite his defeat.
Congress is right to address vulnerabilities in our election process. But reformers can’t simply fight the last war if they truly want to protect the presidency. When counting the results of the 2024 presidential election, Trump’s supporters won’t control the vice presidency like they did in 2020. Hence, if they want to try and seize the White House again, they will have to use new strategies that use those political institutions they do control.
At present, a House majority is perhaps the one thing Trump’s supporters seem most likely to run during the 2024 presidential election. But that alone might be enough to steal the presidency, unless and until Congress says otherwise.
Under current law, a simple majority in the House of Representatives could not only derail the process for counting electoral votes but would also appoint the person who becomes president if and when that process fails. If Congress wants to prevent this from happening, it needs to look past the Electoral Count Act to another area of law that reformers have yet to address: that governing presidential succession.
This disturbing scenario has its origins in the process that the Constitution sets out for determining who becomes president following a general election. The 12th Amendment requires that the vice president, in his or her capacity as president of the Senate, open the electoral votes received from state electors “in the presence of the Senate and House of Representatives,” at which point the votes “shall then be counted.” To satisfy this requirement, Congress has traditionally convened a joint session where the House and Senate sit together to review the electoral votes and debate any issues. Once the count is finalized, the vice president reads the results to those assembled and thereby establishes who has qualified to become the official president-elect and vice president-elect.
This joint session is where Trump supporters hoped to turn the 2020 election results in his favor, specifically by having legislators object to some states’ electoral votes and urging then-Vice President Mike Pence to abuse his authority to change the final count. When Pence refused, pro-Trump protesters were enraged and soon began storming the U.S. Capitol building to disrupt the proceedings. This is why reformers in Congress are now focused on overhauling the Electoral Count Act, which regulates the procedures at this joint session: so as to make it harder, if not impossible, for others to manipulate the joint session in this way in the future. But none of the proposals currently on the table address the more fundamental question of what happens if the joint session never takes place.
The Electoral Count Act states that the House and Senate “shall meet” to count the electoral votes at a specific date and time in the years following presidential elections. But there are good reasons to doubt whether Congress can compel the House and Senate to take such a step; notably, the Constitution empowers each individual chamber, not Congress as a whole, to “determine the Rules of its Proceedings.” Legislators recognized this possibility shortly after the Electoral Count Act was enacted. This is why they continued to have both chambers vote on whether to enter into each joint session, a practice that dates back to the first counting of electoral votes in 1789.
Of course, a simple majority of either chamber — or just 41 members of the Senate, if one senator were to filibuster — could defeat the concurrent resolution that establishes a joint session. Alternatively, a majority of either chamber could simply refuse to attend and thereby prevent the number of attendees from reaching the majority that the Constitution requires for each chamber to have a “Quorum to do Business.”
There are certain internal House and Senate rules that might make this more difficult to accomplish, including those that allow a minority of members to compel the attendance of absent peers. But the House, at least, adopts its rules just a few days before the electoral votes are counted, meaning a House majority planning to derail the joint session could simply amend or repeal any House rules that might stand in its way. A majority of the Senate could similarly amend its rules using the so-called “nuclear option,” as it’s done twice in the past few years in order to reduce the number of votes needed to end debate on nominations.
Some members of Congress who wish to proceed with the joint session in spite of these efforts may argue that a quorum from each chamber is not necessary to satisfy the 12th Amendment. They may also try and use the complicated procedures for making objections under the Electoral Count Act to prevent the joint session from recognizing a lack of quorum. But even if these efforts were to succeed, finalizing the electoral vote count without a quorum from both chambers present could, at a minimum, raise serious constitutional doubts about the results.
The more responsible reading of the law may well be that such circumstances simply don’t satisfy the 12th Amendment’s requirement that the electoral votes be opened and counted “in the presence of the Senate and House of Representatives.” But this would in turn leave the country without a president-elect or vice president-elect to assume office when the incumbent administration’s term ends on Jan. 20.
The 20th Amendment gives Congress the authority to regulate what happens next, which it’s done through the Presidential Succession Act of 1947. That law sets out a line of succession in the event that both the presidency and vice presidency become vacant. Specifically, it makes the speaker of the House first in line for the acting presidency, followed by the president pro tempore of the Senate and then the members of the incumbent president’s cabinet. So long as they meet the requirements for becoming president and resign from their current role, the next person in this line of succession serves as the acting president until the winners of the election are determined or someone higher in the chain of succession becomes eligible.
Putting the speaker of the House at the top of this list, however, creates some perverse incentives for the House majority. The House elects its speaker on the basis of a majority vote at the beginning of each Congress, which is just days before the joint session to count electoral votes in the years following general elections. And while every speaker to date has been a member of the House, this isn’t legally required; a majority of the House may in fact choose whoever they want as speaker and thereby make that person first in line for the presidency.
Hard-line GOP Reps. Matt Gaetz and Marjorie Taylor Greene recently underscored what this might mean in practice when they suggested that the House might select Trump as speaker if Republicans were to retake the majority in 2022. But the scary truth is that, if Republicans also win a House majority in 2024, they would not have to stop there. A Republican House majority could at that point not only elect Trump as speaker but refuse to participate in the joint session to count electoral votes, thereby preventing the selection of a president-elect or vice president-elect. This would leave the presidency vacant come Jan. 20 — a vacancy that Speaker Trump would then fill by operation of the Presidential Succession Act. And while this appointment would be temporary, Trump would remain there so long as the same House majority refused to finalize the electoral vote count and determine the actual winner. Trump said this week that he wasn’t interested in becoming speaker if Republicans take the House in November. But he might have a different opinion in 2024 if doing so becomes a stepping stone back to the White House.
To be certain, this scenario raises a number of unprecedented legal and procedural questions that might impact the outcome. But the possibility is credible enough to be taken seriously.
Nor should it be seen as politically beyond the pale. Disrupting the process for counting electoral votes is not so different from what 139 House Republicans did in 2021 when they voted against accepting the 2020 election results on the basis of unproven allegations of electoral fraud. Furthermore, a general election has produced a president of one party and a House of the other no fewer than nine times since the end of World War II, suggesting future House majorities may well see political advantage in such a step.
Fortunately, the laws that make this scenario possible are not written in stone. Amending the 12th Amendment is almost certainly a bridge too far, but revising the Presidential Succession Act is well within Congress’ reach and warrants the attention of reformers.
An easy fix might focus on Trump himself by disqualifying individuals who have previously held or been a candidate for the presidency — or even those who have been impeached by the House, a condition that could already disqualify members of the president’s cabinet — from the line of succession. But a House majority could still appoint another candidate of its choice that isn’t disqualified by these conditions.
Alternatively, Congress might remove the House speaker and Senate president pro tempore from the line of succession altogether. Some experts have already endorsed this option as a means of avoiding separate constitutional questions as to whether Article II of the Constitution allows legislative officers to be in the line of presidential succession for cases of death, disability or resignation. But handing the presidency to incumbent cabinet officials might pose its own perverse incentives, particularly if they are of the same political party as the House majority.
To truly reduce the incentive for manipulation, Congress needs to insulate the line of presidential succession in cases of failed elections from partisan preferences. One way to do this would be to limit the line of succession to non-partisans, such as senior career civil servants. Alternatively, Congress could assign the acting presidency at random from a pool of qualified individuals or rotate it between several such individuals over time. Any of these mechanisms would make it all but impossible for a House majority to know that interfering with the electoral vote count would hand the presidency over to its co-partisans, thereby removing their incentive to do so.
If the experience of the 2020 election has shown us anything, it’s that the rules and traditions that have long governed our country are more fragile than they may seem. Congress needs to take the threat to our democratic system seriously. Doing so requires that they not just fix yesterday’s problems but look ahead and address other vulnerabilities before they can be capitalized upon.
English (US)