Presidential Elections and Constitutional Stupidities

By Levinson, Sanford | Constitutional Commentary, Summer 1995 | Go to article overview

Presidential Elections and Constitutional Stupidities


Levinson, Sanford, Constitutional Commentary


Amendment XII: The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote....; and a majority of all the states shall be necessary to a choice.... The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President....

Amendment XX: The terms of the President and Vice-President shall end at noon on the 20th day of January....

On November 4, 1980, Ronald Reagan decisively defeated Jimmy Carter, the incumbent President (who had himself defeated an incumbent President four years before). Perhaps more to the point, in the 1980 election the electorate "repudiated" much of the legacy of the Democratic Party and declared its preference for leadership in a significantly different direction.(1) Ronald Reagan did not, however, take office until January 20, 1981. On November 8, 1992, the incumbent, George Bush, garnered less than 40% of the popular vote; Bill clinton was elected with 43% of the popular vote, while Ross Perot got 19%. Again, a desire for "change" was widely viewed as one of the meanings of the election. Clinton, of course, did not take office until January 20, 1992.

On November 5, 1996, almost anything is thinkable, given the current state of American politics: Perhaps Phil Gramm will indeed be elected on a platform of full-scale destruction of what will still remain of the 20th-century regulatory- and welfare-state. He would, presumably, have to wait until January 20, 1997, to begin the final dismantling. Or perhaps disaffected Democrats on the left and either pro- or anti-choice Republicans will choose to bolt from their respective parties and run insurgent candidacies that capture enough of the electoral vote to throw the election into the Congress. Any result other than Bill Clinton's reelection will highlight what I deem the most mischievious feature(s) of the current Constitution.

Consider first the easier (and far more common) case--the defeat of a sitting President followed by a ten-week hiatus in which the repudiated incumbent continues to possess the full legal powers of the modern American presidency, including, as illustrated by the Bush interregnum, the power to send troops abroad (to Somalia) and to pardon criminals (Elliot Abrams) or possible collaborators in arguably illegal conduct (e.g., Caspar Weinberger).

This is not, in fact, constitutionally required: It is the result of the contingency that we vote for presidential electors on the first Tuesday after the first Monday, thanks to Congress's exercise of its authority, given by Article II, [sections] 1, cl. 4, to set a nationally uniform election day.(2) So, as a technical matter, my concerns about the gap between election and inauguration do not require changing our Constitution at all; Congress need only set the election on, say, the first Sunday following the New Year in January, with the electors to meet the following Wednesday(3) and Congress in turn to receive the electoral-vote count on the next Monday. Inauguration could then occur unproblematically on January 20, unless, of course, no candidate had received a majority of electoral votes (to which I shall return presently).

What is wrong with the present way of doing things? First, there is something profoundly troubling, to a democrat, in allowing repudiated Presidents to continue to exercise the perogatives of what is usually called the "most powerful political office in the world. …

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