Nightmare Presidential Scenarios Averted; Election Reforms Still Needed

Nightmare Presidential Scenarios Averted; Election Reforms Still Needed

11.20.2020

By Jerry H. Goldfeder

What a year! Almost everyone even remotely paying attention now has a fairly good idea of how we elect a president, or at least knows the broad outlines of the process. Fortunately, the so-called nightmare scenarios that I and others incessantly wrote about^[1] for the last two years ultimately did not come to pass, though there were last-minute attempts to persuade several legislatures to ignore the popular vote in their states.^[2] It is worth reviewing the salient legal issues, though, to focus our attention on how we might reform the pertinent laws. After that, I will address a few of the more problematic New York election law issues.

Will He Stay or Will He Go?

This was our 59th presidential election. Each of them was conducted and resolved relatively smoothly. In one race, in the year 2000, the Supreme Court played a decisive role; in 1876 a special commission determined which candidate won several contested states. In the others, the electoral college vote was clear, and the winner was quickly declared. Indeed, in 10 previous elections the incumbent president lost his bid for a second term, and graciously (if not happily) conceded and turned over the keys to the oval office.

The norm of peaceful transition is so embedded in our history and culture that even when a sitting vice president seeking the presidency was unsuccessful, he nevertheless presided over Congress as it tallied the electoral votes and announced his own defeat. Thus, Vice President Al Gore declared George W. Bush had won in 2000; Hubert Humphrey announced his loss to Richard Nixon in 1968; and, eight years earlier, Nixon himself proclaimed that John Kennedy edged him out.

Uniquely, despite the federal constitutional provision that his term ends at noon on January 20, President Trump has raised the prospect that he might not leave office if he lost re-election.^[3] His persistence on the issue has prompted questions as to who would have the authority to escort a recalcitrant president from the White House. Perhaps it would be the Secret Service, or the military, or the United States Marshal, or even the District of Columbia Police Department. Unsurprising as it might be, none of these actors has publicly taken ownership of this responsibility. As it turns out, President Trump seems to know that he must leave, so the legal issue appears moot.

In short, this drama revealed that it is the norm of peaceful succession that ultimately carries the day, not any specific legal procedure. Indeed, being a “good loser” is the very premise of our democracy.^[4]

So, Let’s Back Up. What About Those Nightmare Scenarios?

The highly contentious election, and the President’s post-November 3 lawsuits, engendered widespread worry about several extraordinary scenarios.

Could a State Legislature Step In?

If the vote is close in a state and no clear winner could be determined, could a state legislature step in and choose its own slate of electors? The Democrats have been on record as opposing this, and the Republicans were publicly discussing it.^[5]

Let’s look at the law. The United States Constitution provides that state legislatures choose the manner by which electors are chosen.^[6] In the beginning of the republic, the states enacted a variety of methods – selection of electors by the legislature, or the voters, or the governor – and from time to time a state would change its procedure.^[7] For almost 150 years, however, each state has enacted legislation authorizing the voters to choose electors at the polls on Election Day.

Could a state legislature change this? The short answer is, yes – but most scholars agree: only with the approval of the governor and before Election Day.

In 2020, there were 29 state legislatures controlled by Republicans, and in 21 of those states, the governor was also a Republican. The concern was that a state might opt to circumvent the voters by allowing its legislature to pick electors. Although this scenario was actively considered by the president and his supporters even after Election Day, no state did so.^[8]

Florida almost did this in 2000 during the 35 days between Election Day and the Supreme Court’s decision in Bush v. Gore. During that fraught period, it was unclear who won the vote in the state, and, with it, the election. As a result, the Florida legislature took steps to name its own slate of Bush electors, and Governor Jeb Bush was ready to approve the legislation. After the high court ended the recount, however, the Republicans dropped the idea – it was no longer necessary.

With Florida’s almost-attempt fresh in their minds, Democrats this year argued that a legislature could not change the law by which electors are chosen after the voters went to the polls. Some Republicans were nevertheless unpersuaded. Relying upon a provision in the Electoral Count Act, state legislators in Pennsylvania, for example, argued that if the vote count was not determined – if, in the words of the statute, the voters had “failed to make a choice” – the legislature was empowered to select electors in another manner.^[9] Thus, a legal imbroglio was in the offing. As we know, the margins were not close enough for a legitimate invocation of this legislative act.

While the election was still up in the air, however, several legal questions emerged. What does “failed to make a choice” mean? How long would a state have to count the votes until this statute could be invoked? Presumably, the counting could proceed until the date presidential electors are scheduled to meet, which is December 14 this year.^[10] But could the state call a deadlock earlier? And who would make that determination? In that this provision has not been litigated, let alone resolved, it remains wholly unclear as to when it could be invoked or by whom.

Furthermore, if we can get past the issue of who can determine when voters have failed to choose a winner, does a legislative “fix” require a gubernatorial signature? To reiterate, the constitution says the “legislature” decides how electors are chosen. But given that the original procedure by which electors are chosen by voters on Election Day has usually been effected through a customary legislative process, the constitutional provision is reasonably understood to include gubernatorial approval. The Supreme Court robustly debated the meaning of “legislature” just a few years ago, but in a different context.^[11] No court has interpreted its meaning in the context of choosing presidential electors.

In that no state legislature attempted to circumvent the voters in this manner, the legal ambiguities remain.

What if There Are Competing Slates of Electors?

If the vote totals in a state are sufficiently close, and one legal authority – say, the election officials – were to determine a winner, but another body – say, a court – would rule that the opposing candidate won, competing slates of electors may be transmitted to Congress. The last time this problem occurred in any meaningful way was in 1876, and as a result of that highly contentious election, a full-blown Electoral Count Act was enacted which remains in place today.^[12]

As part of this law, both the House and Senate meet jointly on January 6 to tally the votes.^[13] Unfortunately, this provision is poorly drafted and ambiguous – and its implementation has not been tested or adjudicated. The law seems to provide that if there are competing slates of electors sent to Congress, and one had been chosen six days before the presidential electors meet in December (the “safe harbor” date),^[14] such slate is presumptively the valid one. If both were chosen by then, or if neither was, the Congress would decide which one is counted. If the House and Senate, meeting separately, agree, a slate’s votes would be counted and, presumably, a president and vice president will be elected. On the other hand, if there is a split between the two bodies, the law provides that the chief executive^[15]of the state makes the call.

One may reasonably suggest that it is not constitutional for Congress to have delegated this role to a governor to decide which is the winning slate when the Constitution has explicitly given the power to determine how electors are chosen to state legislatures – and no legislature has authorized a governor to make this decision. As such, would Congress have to abide by this statutory scheme – or could it simply select a slate as it deemed appropriate? And if Congress simply chose a slate, wouldn’t this act itself be at odds with the constitutional authority bestowed upon the states to choose its own presidential electors?

Fortunately, the winner in each state was sufficiently clear as to avoid these scenarios. But the abiding concerns during this election should prompt a re-examination of the constitutional provisions and statutes relating to presidential selection.

Readers who are interested in a more extensive review of the presidential election process and the variety of scenarios that might emerge are invited to consult the NYSBA’s 2020 Presidential Task Force Report.^[16]

Closer to Home, New York Remains a Minefield for Candidates and Voters

Rebecca Seawright, the New York State Assembly member from Manhattan’s East Side and no first-timer running for office, nevertheless made fatal errors in her paperwork that got her bounced off the ballot in the Democratic and Working Families primaries. Only after she petitioned as an independent, on the “Rise and Unite” line, did she succeed in winning re-election against her Republican opponent.

How did this happen? Although Seawright had more than enough petition signatures to obtain a place on the ballot in both the Democratic and Working Families primaries, she ran afoul of statutory and regulatory requirements. Because she is an enrolled Democrat, the law requires the filing of a Certificate of Acceptance for her Working Families petitions.^[17] Seawright failed to do so, and the Board of Elections in the City of New York invalidated her petitions. She then retained counsel and filed her Acceptance, though untimely. Seawright also failed to submit a “cover sheet” with her Democratic petitions, required by Board regulations pursuant to statutory authority.^[18] Thus, the Board rejected her Democratic petitions as well, and her counsel then submitted this paperwork.

At a full Board hearing, Seawright’s counsel argued that these errors occurred when the pandemic struck New York City, and her late filings should be accepted, nunc pro tunc. The Board was unpersuaded and adhered to its position. Seawright sought relief in Supreme Court, New York County. The court restored her to the ballot on both lines, ruling that the pandemic provided a sufficient excuse for her lateness. The Appellate Division, First Department, affirmed, also citing the pandemic and the absence of “specific actual prejudice.” The Board of Elections sought leave to appeal from the Court of Appeals, and it was granted.

The Court of Appeals, 5–2, reversed, holding that precedents required timely filings and any relaxation of such rules would “dilute the integrity of the election process” and “jeopardize enforcement of the mandatory filing requirements set forth in the Election Law [citation omitted].” The Court added, “Whatever may be our view [as to the equity of the situation], the legislature has erected a rigid framework of regulation, detailing as it does throughout specific particulars’ [citation omitted].”^[19]

Seawright was not the only candidate whose candidacy was invalidated by a strict adherence to rigid rules – rules, it is worth noting, that are unrelated to the bona fides of the voters’ signatures required for a place on the ballot. Others had petitions invalidated because the number of signatures required for New York City office is inconsistent with the relevant state statute;^[20] judicial relief was blocked by imprecise Board notices;^[21] and candidates were bounced because of inadvertent errors on timely filed cover sheets.^[22] To be sure, sometimes a candidacy has been saved by a challenger’s failure to abide by strict timelines or service provisions.^[23]

Yet, at the same time, Governor Andrew Cuomo issued multiple Executive Orders and the legislature enacted bills to ease ballot access and voting procedures during the pandemic.^[24] The number of signatures required to obtain ballot access was slashed; the petitioning period was truncated; “no-excuse” voting by mail was ordered; a robust early program was instituted; and a process by which voters could “cure” mistakes on absentee ballots was effected. It remains to be seen whether these temporary reforms will remain in place during future elections.

As we look around the country this year, New Yorkers are compelled to acknowledge that other states have electoral procedures that are more candidate- and voter-friendly.^[25] Our legislature should take a deep dive into the Election Law and enact comprehensive reform – and make it easier for candidates to run for office and stay on the ballot, and for voters to cast ballots and have them counted – after the pandemic, on an ongoing basis. Hyper-technical rules should not sink a candidacy or restrict a voter’s right to choose.

New Yorkers deserve a simpler, fairer and more efficient electoral system.

Jerry H. Goldfeder is Special Counsel at Stroock LLP, practicing election and campaign finance law. He teaches election law at Fordham Law School, where he was voted Adjunct Professor of the Year in 2015 and 2019; is the author of the treatise, Goldfeder’s Modern Election Law (NY Legal Pub. Corp, 6th Ed., March 2021) and co-author of the Government and Election Law column in the New York Law Journal. He is currently the Chair of NYSBA’s 2020 Presidential Task Force and hosts a weekly podcast on public radio WFUV, Election Connection.

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[1]. See, e.g., Edward Foley, Preparing for a Disputed Presidential Election, 51 Loy. U. Chi. L. J. 309 (2020); Jerry H. Goldfeder and Lincoln A. Mitchell, What if Trump Loses and Refuses to Leave the White House, N.Y. Daily News, Dec. 3, 2018, https://www.nydailynews.com/opinion/ny-oped-what-if-trump-loses-but-refuses-to-leave-the-white-house-20181127-story.html; Richard L. Hasen, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy, Feb. 4, 2020; Jerry H. Goldfeder, Tornadoes, Coronavirus and the 2020 Election, N.Y.L.J., Mar. 10, 2020; Richard Hasen, Three Pathologies of American Voting Rights Illuminated by the COVID-19 Pandemic, and How to Treat and Cure Them, UC Irvine Legal Studies Research Paper Series No. 2020-43, May 19, 2020, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3604668; Jerry H. Goldfeder, Still No Plan for a Smooth Election, N.Y.L.J., July 1, 2020; Jerry H. Goldfeder, Trump’s Tweets Are Hollow, but Frank Underwood-Style Voter Suppression is a Real Election Day Threat, N.Y.L.J., Aug. 11, 2020; Jerry H. Goldfeder, No Winner in a State? What Then?, N.Y.L.J., Oct. 26, 2020; Barton Gellman, The Election That Could Break America, The Atlantic, Nov. 2020, https://www.theatlantic.com/magazine/archive/2020/11/what-if-trump-refuses-concede/616424/.

[2]. In that this article is going to press in mid-November, I can only hope that, notwithstanding the current recalcitrance of President Trump and his supporters, no extraordinary event actually occurs that interferes with a lawful succession.

[3]. See Sarah Lyall, When a Leader Just Won’t Go, N.Y. Times, Nov. 15, 2020, https://www.nytimes.com/2020/11/15/us/politics/trump-concession-books-literature-.html.

[4]. Adam Gopnik, Democracy Depends On Good Losers, The New Yorker, Nov. 15, 2020, https://www.newyorker.com/news/daily-comment/democracy-depends-on-good-losers.

[5]. Jerry H. Goldfeder, No Voters Need Apply?, N.Y.L.J., May 26, 2020.

[6]. U.S. Const., art. II, § 1.

[7]. Jerry H. Goldfeder, Election Law and the Presidency, 85 Fordham L. Rev. 965 (2016).

[8]. Maggie Haberman, Trump Floats Improbable Survival Scenarios as He Ponders His Future, N.Y. Times, Nov. 12, 2020, https://www.nytimes.com/2020/11/12/us/politics/trump-future.html.

[9]. 3 U.S.C. § 2.

[10]. 3 U.S.C. § 7.

[11]. Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U.S. 787 (2015).

[12]. 3 U.S.C. §§ 1 et seq.

[13]. 3 U.S.C. § 15.

[14]. 3 U.S.C. § 5.

[15]. Usually the chief executive is the governor, but it could be the secretary of state or another public official under a state’s law.

[16]. https://nysba.org/app/uploads/2020/10/Final-Report-with-Cover-10-20-20-1.pdf.

[17]. N.Y. Elec. Law § 6-146.

[18]. A sample cover sheet can be found at https://www.elections.ny.gov/NYSBOE/download/law/CoverSheetDesignatingIndependentCombined.pdf.

[19]. Seawright v. Bd. of Elections, 35 N.Y.3d 227 (2020).

[20]. Council v. Zapata, 183 A.D.3d 678 (2d Dep’t. 2020).

[21]. Echevarria v. Bd. of Elections, 183 A.D.3d 857 (2d Dep’t 2020).

[22]. Saunders v. Egriu, 183 A.D.3d 1292 (4th Dep’t 2020).

[23]. See, e.g., Sauberman v. Weinstock, 183 A.D.3d 1107 (3d Dep’t 2020).

[24]. https://www.governor.ny.gov/executiveorders.

[25]. See Wendy R. Weiser, Talking Election Law with the Brennan Center, Brennan Center for Justice, Oct. 30, 2020, https://www.brennancenter.org/our-work/research-reports/talking-election-law-brennan-center.