The 2020 Electoral End Game — Finding a Peaceful Transition of Power in a Political Question World

Abstract

The playing field for 2020 election disputes is not level because the incumbent-candidate is already in office. The incumbent-candidate is already asserting election irregularities that could leave the election undecided at Inauguration Day. One potential path is that the Supreme Court declares some outcome-determinative election law issue to be a Political Question. This Essay uses this scenario to examine the dynamics of election disputes remaining open and accompanying threats to the rule of law. This Essay develops a solution that yields a peaceful transfer of power under law, even without final, dispositive court rulings. First, the House can provide a fair and legitimate path to resolution of an electoral Political Question. Intensive hearings in the House in the form of a trial-like proceeding could resolve interference and fraud disputes, as a political matter. This would be far different from the 1876 Electoral Commission. It would take advantage of: (1) live broadcast of proceeding and (2) public opinion of, interest in, and attention to actual trials. Second, it is true that the challenger and his allies would need to force such a trial, as a political matter. They can do this using the unilateral power of the House to determine disputed House elections. The by-member-majority in the House could decline to seat various State delegations. For the same States as the incumbent-candidate claims are in dispute for the Electoral College, the House would assert that all House elections are in dispute. In the likely alignment of the 177th Congress, this would prevent both candidates from being able to obtain a by-State majority in any House election of the President. This will have strong legal and political effects to reduce incumbent advantage. This two-part solution also helps solve the threat to the rule-of-law arising from un-elected government officials having to decide overtly who is President. A fair trial in the House is the only way to air the same facts to the public and those government officials. With very limited time from Election Day to Electoral Count Day, the challenger would need to push forward immediately with a House trial-like proceeding. This would require far more even than the House put into impeachment, including pre-election preparation. There are additional major benefits. A trial-type hearing would provide the opportunity to give the public a unified, understandable narrative of disputes that will otherwise appear as a morass of necessary-but-technical state-by-state litigation. Furthermore, it could help the Supreme Court with its legitimacy concerns arising from another Bush v. Gore decision. It would also help with the legitimacy of any 1876-type negotiated resolution.