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Election Law @ Moritz

Free & Fair

Election Commissions and Supreme Courts

The latest word from Afghanistan is that President Karzai has agreed to the run-off called for by the U.N.-affiliated commission’s finding of sufficient fraud to bring his vote total below the 50% mark. His acquiescence is welcome because earlier reports in this morning’s New York Times, as well as on NPR, had mentioned the possibility that Afghanistan’s Supreme Court might, despite the apparently clear text of the Afghan Constitution on the point, have nullified the independent electoral commission’s decision. 

The fear was that the supreme court, for political motives based on an allegiance to President Karzai, might subvert the result of a structurally impartial tribunal designed specifically to resolve an election dispute as fairly as possible.

I know nothing about Afghan law—constitutional, electoral, or otherwise—but today’s news stories raise in my mind an institutional question relevant to U.S. law, and I suppose the law of any other democracy.  It relates to Bush v. Gore, our nation’s experience with an Electoral Commission to resolve the 1876 Hayes-Tilden dispute, and any effort to set up an orderly process to resolve a disputed presidential election in accordance with two goals: (1) it is understood in advance by all parties and the public what institution has conclusive authority under the law to settle the dispute; and (2) the institution with this conclusive authority is perceived by all parties and the public to be legitimate and unbiased.

It is sad to say that in our own democracy, even after the lessons of 2000, we cannot say that we have met the first of these two goals, much less the second. Despite Bush v. Gore, we don’t know to what extent the U.S. Supreme Court has, or will purport to have, jurisdiction to resolve disputed presidential elections in the future. Would the Court intervene again, or refrain from intervening next time? Discretionary jurisdiction, with its inevitable uncertainty, is not a good thing for disputes over counting presidential ballots. It invites strategic gaming: we all know the Court sometimes decides to grant or deny certiorari based on whether the Justices, or at least four of them, want to hear or avoid an issue. Even if the Justices’ motives are pure when confronted with a case involving a disputed presidential election, discretionary jurisdiction presents the risk of a perception that the Justices have decided strategically whether or not to intervene.

Moreover, although it is a common misperception, the Supreme Court did not actually have the last word in 2000. Gore’s concession after the Court’s order to stop the Florida recount prevented the dispute from going to Congress, where it would have faced additional institutional uncertainty. (A purported certificate from Florida’s Attorney General, a Democrat, might have been enough of a pretext for Democrats in Congress to act, if Gore had encouraged them—there was a similar certificate from Florida’s Attoney General in 1876—and one can imagine other scenarios involving a defiant Florida Supreme Court majority.) Gore’s concession was good in that it did not put the system to its ultimate test, in the same way that Karzai’s acquiescence today avoids a test of Afghanistan’s institutional structures. But avoiding the ultimate test in 2000 means there is much less public awareness of just how uncertain our institutional mechanism is for handling a disputed presidential election if it gets all the way to Congress. 

To the extent that folks focus on this issue, they are likely to think that the Electoral Count Act of 1887—adopted in the wake of the Hayes-Tilden dispute—provides the institutional roadmap. This Act is the maddeningly complicated statute mentioned back in 2000, with the “safe harbor” provision and all. But what few folks realize is that, for all its complexity, the Electoral Count Act fails to specify what to do in several scenarios that could arise: for example, two different certificates from a state’s governor (as occurred in 1960 involving Hawaii’s electoral votes). Moreover, there is a credible—although far from conclusive—argument that the Electoral Count Act is itself unconstitutional under the Twelfth Amendment, for interfering with the President of the Senate’s purportedly sole constitutional authority to count the electoral votes from the states. (Check out the ambiguity of the passive voice in the relevant clause of the Twelfth Amendment if you don’t believe me that there is institutional uncertainty under our Constitution concerning the resolution of disputed presidential elections: “The President of the Senate shall, in the presence of the Senate and the House of Representatives, open all the certificates and the votes shall then be counted.” Counted by whom? It doesn’t say.) 

Even worse, suppose the Senate backs its President, who has declared that one of the candidates has won the White House, while the House of Representatives after January 20th continues to claim no candidate has been officially elected and, therefore, the Speaker of the House serves as Acting President pursuant to the Twentieth Amendment until the dispute is resolved. Yikes. It would be bad enough to have the situation where the Twentieth Amendment is invoked and we need an Acting President, but it would be more horrible still if the House thinks the nation is in this situation while the Senate does not. Neither the Twentieth Amendment nor anywhere else in the Constitution specifies what to do in the event of this bicameral roadblock. 

If we were prudent as a nation, we would clear up this constitutional confusion before it ever matters again. Although 2000 is much more recent than 1876, it was 1876 that took us much, much closer to the constitutional brink. We can’t guarantee that next time will look more like 2000 than 1876, and we ought to be prepared for either by preventing the institutional uncertainty that bedeviled both situations.

Yet clarifying the constitutional authority of our nation’s ultimate tribunal in the event of a disputed presidential election would require us to make a difficult choice. We have come to believe as a people in the Supreme Court as our fairest institution, and therefore we might want to repose it with this specific authority. In other words, we could give the Court mandatory and final jurisdiction over any dispute over the counting of presidential ballots: no questions about whether or not the Court will intervene on its own initiative (as in Bush v. Gore), and no possibility for the losing candidate to take the matter to Congress. 

But do we think the Court, as it is permanently structured for all sorts of cases not involving elections, has the best institutional design to handle a disputed presidential election? Or do we think that a single-purpose Electoral Commission, structured to be evenly impartial towards the two disputing political parties, would be better for this particular task? If the latter, then we had better be prepared to divest the U.S. Supreme Court of jurisdiction over a discrete set of constitutional questions—those specifically arising out of a dispute over the counting of presidential ballots. 

It has not, however, been in our constitutional tradition of the last half-century or more to want to deprive the U.S. Supreme Court of authority to answer constitutional questions. To be sure, the Court itself has invoked the so-called “political question” doctrine on rare occasions, as with the Senate’s sole authority to try impeachments. But that was a case of self-restraint on the Court’s part. We have never explicitly written into the Constitution a new exception to its longstanding self-asserted authority under Marbury v. Madison to answer constitutional questions. Yet that is what would be called for if we wished to amend the Twelfth Amendment to give a special-purpose Electoral Commission conclusive authority to resolve all issues arising out of a disputed presidential election.

Thinking about this question of constitutional architecture is why the news from Afghanistan today resonates. It is not at all obvious that a nation’s supreme court—including our own—is a better institution than a special-purpose electoral commission to settle a disputed presidential election. If the electoral commission is well-designed to be genuinely impartial, then its resolution of the dispute may have greater legitimacy and fairness than one reached by the nation’s general-jurisdiction supreme court. (That would seem true for Afghanistan, which is perhaps why President Karzai acquiesced quite quickly.) Yet if this judgment is correct for the U.S., then it will be necessary to write a clear constitutional clause ordering the supreme court to keep its hands off of the electoral commission’s exclusive jurisdiction over this single type of dispute. Would we as a nation be prepared to ratify that kind of constitutional amendment? 

As I write these words today, I note that, coincidentally, one year ago on this date Election Law @ Moritz (together with the AEI-Brookings Election Reform Project and the Georgetown Law School’s Supreme Court Institute) sponsored a simulated oral argument of a hypothetical McCain v. Obama disputed presidential election. We learned a lot from that exercise—particularly how a specially-designed tribunal handles a dispute of this nature, compared to how the Supreme Court handled Bush v. Gore. We continue to learn from that exercise, as we study it in relationship to how the real case of Coleman v. Franken was resolved in Minnesota (also by a balanced three-judge panel specially created for the single dispute). There is more learning to be done, as today’s events from across the globe remind us.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile


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