Presidential election controversies are nothing new. They have plagued our republic since 1801, when the fourth election for the office ended in a muddle that nearly deprived the rightful winner of the presidency. Each controversy has led to calls for reform. In every instance, the cryptic and troublesome constitutional text has hampered congressional efforts to correct the problems. Simply stated, the Constitution offers little explicit guidance on when and how Congress can regulate the selection of the President. In this Article, we explore the implications of this textual deficiency, looking both at what Congress has done in the past and at what it might do now.
Our analysis proceeds in five steps. Part I of our Article highlights relevant features of the constitutional text. Part II explores how Congress reluctantly but successfully used this text to enact significant reform legislation in response to the Hayes-Tilden election debacle of 1876. Part III identifies some reforms that Congress has under consideration to address the problems that complicated the 2000 presidential vote, focusing on measures that would lead to nationwide use of a uniform ballot and federally approved voting devices and machinery. Part IV then examines whether Congress has the power to enact these measures, concluding (in an analysis that covers six possible sources of authority) that it does. Part V urges Congress to wield this power by enacting significant reform legislation in time for the 2004 election.
Our central message is that our federal leaders should learn from the past. Following the election of 1876, Congress was able, in time, to put aside partisan wrangling and constitutional concerns to enact presidential election reforms that have served our nation well for more than a century. The present Congress should take bold action as well. Invoking the powers we identify in this Article, our federal leaders should respond to the essentially technical and mechanical problems that cast a lingering cloud over the 2000 election. In short, Congress should address with visionary legislation the gravest problems that surfaced in the last election to ensure they do not reoccur in the future.
I. THE CONSTITUTIONAL TEXT
The Constitution says surprisingly little about the process of choosing those individuals empowered to select our President. In pertinent part, it provides: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress...." (1) These electors, meeting in their respective states, elect the President and Vice President by majority vote. The Constitution expressly gives Congress only two roles in this process. (2) First, as to the time of choosing electors and the day on which the electors vote, it states: "The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States." (3) Second, as to the counting of votes cast by the electors, it states: "The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted." (4) Only if the electors fail to elect a President or Vice President by majority vote does. Congress take center stage by choosing those officers from among the top electoral-vote recipients. (5)
The constitutional process was altered by the Twelfth Amendment after the 1800 election ended in a tie between Republicans Thomas Jefferson and Aaron Burr, a deadlock resulting from the failure of the original constitutional text to permit electors to distinguish between their votes for President and Vice President. (6) Republican Party electors, who held a narrow eight-vote majority of the electoral college, all duly voted for Jefferson and Burr, intending the former to become President and the latter to become Vice President. …