Another Way To Elect A President: Contingent Elections (Part 8)

This podcast is part of the Democracy Group. This is Larry Lessig. It's happened only twice in our history. Once before the 12th amendment and once after. But it's possible that no candidate for president will win a majority of the Electoral College votes. It's also happened once for the vice president. But let's put that aside, however interesting that particular bit of history is. It happened once in the election of 1800, when the conniving Aaron Burr conspired to make it so that though he and Jefferson were clearly intended as the winners of that election and he was clearly intended as the vice president, there was a tie between him and Jefferson, forcing the House of Representatives to resolve who would be president. And it happened in 1824, when no candidate of the four major candidates got a majority in the Electoral College, even though Andrew Jackson won the popular vote not by a majority, but by a plurality. It could happen again. If the Electoral college is tied 269 to 269, then the Constitution has a strange procedure, the procedure called a contingent election, to allow the House of Representatives to choose the president. In this episode, we'll talk to one of the leading, I think the leading historians of the legal half of this problem, Ned Foley, who will help us understand the motivation of the framers in crafting this weird procedure for selecting a president where the Electoral College fails and for thinking through a little bit about how it might work in the election of 2020.

Stay tuned.

Okay, so welcome everybody. Again, we've got some regulars on this podcast and we just want to make sure everybody knows their voice. So, Jason, why don't you recognize your voice for us?

Good to be back on the series, Larry.

Great. And then Matt Seligman, who has been with us consistently and also is responsible for this whole mess being part of our life right now. I mean, not the actual election mess, but the.

I know. I was going to say, Larry,

I

may be grunted to your attention, but I don't want to take too much respons.

Okay. And then the third person we've got is a student at the Harvard Law School and the Harvard Business School. I'm right on that. Right, Chris, why don't you introduce yourself? Chris?

Hi, I'm Chris Corcoran. I'm a student in the JD MBA program in my fourth year. I'm a student in Professor Lessig's election law class. And I'm interested to be here with you today, Professor Foley. Thank you.

Then the guest of honor on our podcast today is Ned Foley, professor of law at Ohio State. And he's known in the world of election law as the leading scholar on election law. Not just the present case of how does the world work, but also historically, how did we get to where we are, especially in the context of the fights around the ballot? He's completed a really extraordinary book which I strongly recommend to everybody. Presidential Elections and Majority Rule. That's the title, right, Ned. And that tells us about the historical presuppositions that got us to this bizarre structure that we now have for selecting the president. Now, Ned, in the seven episodes before this, we have walked through every single step that could go wrong between election Day and the moment that the Electoral College has voted and Congress has tried to count those ballots. And so what we want to talk about today is what's referred to as the contingent election, which is the outcome when nobody gets a majority in the Electoral College. But before we get to the mechanics of the contingent election, I'd be really grateful if you could just help people understand how we got to a structure like this, this bizarre structure where states get one vote and the House is basically choosing who the President is against the background of what most people think of as something that's supposed to be a democratic process, which obviously that would not be. So bring us into an understanding of the framers minds as they structured, especially the most important text here, the 12th Amendment that sets up.

Yeah, well, thanks, Larry, for that introduction and it's great to be with all of you. The bizarre thing about the whole Electoral College system is that it's not the product of any one mind. It's not a rational system designed by some architect. It's a series of decisions made over time that don't really fit well together. And I think the contingent election feature of it is a good illustration of that. A version of that is part of the original Electoral College that the founders in the Philadelphia Convention of 1787 adopted when they had one vision of presidential elections. And as I've written in the book that you mentioned, the vision, the philosophical vision of the 12th Amendment is very different in fundamentally important ways. And yet the contingent election feature is a holdover. So it's kind of out of step with, with the new vision that the 12th Amendment wanted. But they didn't do a complete overhaul because they were counting every last vote in Congress to make sure they had enough votes for a constitutional amendment. As we know, for those of us who would like to replace the Electoral College with something better in terms of a national popular vote, we just know how difficult a constitutional amendment Is. Is. And they were aware of that. And the Jeffersonian party had a bare super majority of two thirds of each chamber of Congress. In 1803, when they sent the 12th Amendment to the states for ratification, they did not have an extra vote to spare. So they made what they thought was the most important change consistent with their new philosophy of majority rule that we can get to. But they left in place this holdover element in terms of the contingent election procedure, really not expecting that it would be. In other words, the framers in Philadelphia in 1787 were quite anticipating that this contingent election procedure might be used and that there might be. After George Washington left the scene, it might be difficult to get a winner of the Electoral College mechanism that they had set up and that the backup of this special procedure would come into place that was not.

I mean, we've talked about this a number of times, because obviously, in 1787, one big question was, how could you ever have a presidential candidate in a country where it takes four months to get from one end of the country to another? I mean, Washington was known by everybody, but who would the next Washington be? So many people had the view that they would just basically be local favorite sons from different states who would be promoted.

And.

And when nobody got a majority, then it would have to fall back to somebody else to decide.

And Roger Sherman was the guy in the convention who came up with this sort of compromise plan, because, as you know, they kind of left the issue of the Electoral College and presidential elections to the end of the Philadelphia convention. They all wanted to get home. Madison writes a letter later in life saying, you know, it was a long, hot summer, and designing the Electoral College wasn't our best effort, and we were a little sloppy. I'm paraphrasing, but that's the essence of it. But, you know, they were very jealous of states rights, and they really believed in a system where Rhode island and Delaware should have equal representation as Virginia and New York, Massachusetts, the more populous states that, you know, the Senate, the great compromise of the Constitution was that the Senate would be different from the House of Representatives in terms of representation in Congress. And so figuring out the presidency, they built the Electoral College with a little bit of the Senate in mind and a little bit of the House in mind. And then they came up to this idea that if no one could win outright in the primary mechanism, they wanted equality of the states, regardless of population in the backup.

And.

And so their first instance was, well, the Senate was the institution that was going to have equality of state representation. To senators for each state. But they were afraid of giving the senate too much power. Again, the senators would not be elected directly by the people under the original constitution. They would be appointed by state legislatures. And so they did want the presidency to be a little bit closer to the people. And so they came up with this. Roger Sherman said, all right, well let's use the members of the house who were directly elected by popular vote, but we'll use the equality of each state rule. That applies to the senate, but we'll just morph that over to the house for this one special backup procedure. It was a kind of hodgepodge compromise to get the system done so they could go home.

Now let's though before we get to that, let's just understand why were they so obsessed with the idea of making sure somebody gets to a majority? Like what is the whole reason for 200? I mean what we think of now is 270, but there's the majority of the electoral votes. Why not just have a plurality system and find the guy who get guy? I mean obviously then it would be a guy. The guy who gets the most votes becomes.

Well, they were aware of the problem of a three way split or multi candidate split. Right. Getting the votes, the most votes isn't necessarily an indication of majority support. There may be strong antagonism to the plurality winner, meaning the person with the most in a fractured field. And they were very well aware of that and wanted to avoid that. And so they thought of the contingent election as a kind of runoff. They used runoffs for their own elections back home in the states. In Massachusetts, for example, you couldn't be a governor with a mere plurality win. There had to be a runoff. The most common form of a runoff was a runoff in the legislature, as opposed to a second popular vote runoff, which some of us are familiar with. There was experimentation with that too. But their primary concern was to get this majority sense of the community. Nobody should be. And they were also trying to understand the power of a chief executive. Remember, in the colonial world, the legislature was a body more representative of the colonists, but the governor was a representative of the crown and a potential tyranny. So as they were moving to the idea that chief executives would have serious power, either the governor of a state state or the chief magistrate of the new federal union, the president. They were careful to say who's going to hold that position based on what pedigree. And they really did not want factions to control. They were aware of the plurality of interest bankers, merchants, farmers, and they wanted A mechanism that would get to some kind of consensus or majority vision.

So I remember Massachusetts was the example of you have a first run in the people voting, and if it fails, it goes to the legislature and the legislature chooses among the top candidates by a majority. Right, Correct. That was a method Massachusetts used. So then you can see the contingent election basically replicating that by saying there's a first step where electors are trying to choose and the electors choose necessarily get elected by the people. After the original Constitution, the state legislature still could be picking them, but the presumption is they in some sense are closer to the people than the legislators. And if they fail, they fail to get us a majority. Then we have to turn to the necessity of having the legislature.

Exactly right. I think they were very aware of the Massachusetts model and they were designing it for the new Federal. I think that's exactly right now.

But originally there was a strong expectation that this would be invoked regularly. Your view is that Jefferson or the Jeffersonians believed that under the new system it would not be invoked regularly, that this would just be an unnecessary problem we would never worry about again.

I think the best way to understand it is they thought it would be much rarer. And the reason for that is because of the rise of two party competition. The original system was designed for a plurality of factions and the constitutional architecture keeping those interests fluidly in check, never coalescing into two teams, us versus them. But as folks who have looked at the 1790s know, that vision failed almost from the beginning. And very quickly we got intense two party conflict between the Federalist Party on the one hand and. And the so called Jeffersonian Party on the other. And so that was the new world for when they rebuilt the Electoral College after 1800 and the debacle of that election. And so they were building the redesign for the world of two party competition. And in that situation, they didn't anticipate the kind of fragmentation that would lead to the contingent election procedure. Instead, you'd have us versus them fighting it out first in the states. And so whoever was the majority party at the level of the states, Virginia, Massachusetts, would control the electors of that state. And then you would get your electoral college majority. Not 270, but the same basic concept. You'd get that by accumulating enough majority wins at the local level. And that worked because Jefferson won in 1804 based on the redesign that his party was successfully put through both in Congress and in the ratifying conventions.

So we've only, at the presidential level, we've only Ever had the contingent election twice. Once before the 12th Amendment and once after the 12th Amendment. Right. And before the 12th Amendment, it was this bizarre conspiracy, I think, of Burr to screw up the obviously intended presidential candidate, Thomas Jefferson. And that was what triggered the need for the 12th amendment. After the 12th amendment, it's because this presumption that we would only have two parties had fallen apart.

Right, right. 1824 is. There was the so called era of good feelings when the Federalist Party essentially collapsed and there was only the Jeffersonian party left. But that then fragmented into factions again. And before you got the rise of the so called second party system of the Whigs versus the Jacksonian Democrats, that couldn't happen until after 1824. And that's where you have Andrew Jackson in his first attempt, you know, this former general of the War of 1812 running against John Quincy Adams. The legacy of John Adams. And there were other candidates as well. Henry Clay is a factor in 1824, and they all are kind of trying at that point, claiming the mantle of Jefferson and Madison and Monroe because the Federalists had withered. And John Quincy Adams is an interesting figure for history buffs in that way because his sense of his party identity changes over time. Because he, he grows up in the Adams family in the Federalist part.

Yeah, right, exactly.

Right. Yes. Some people thought they were monsters, but not everybody. But anyway. But once the Federalist Party collapses, John Quincy Adams sort of needs a new home and he's sort of willing to change party identity as to be able to be a successful candidate anyway.

Yeah, it's interesting to think about this historical perspective. I mean, so we're talking about the election of 1824. So imagine we all have a vision of what the election of 2024 will look like, but in the election of 2024, you think back to 1989, that's a critical moment. 1789 was obviously a founding the Constitution. So 1989 would be the equivalent time there. And the people who were president in the 1990s and early 2000s as being not impossibly distant, but still it feels like a different generation from the generation we're in right now. And that's where they were too. Obviously the, the nation had gotten through its first generation. It's on its clear second or third generation of leaders and they're trying to figure out how to make the Constitution work in this really new partisan.

Yeah, no, and I think that's a really important point because I think, you know, from our vantage point, looking at the past, we can't see anymore the distance between 1789 and 1803, for example, or 1803 and 1884. That all looks like essentially the same, same distance from us, but it's not at all the same distance to them as each others. And trying to get back into that mindset, I think is important to understand how they understood their own world. And that's why I think reading the letters of James Madison that he writes in the Cause, Madison anticipates the problem of 1824. They can already see that there is going to be fracture and fragmentation. And Madison is a conscientious figure. And of course by the 1820s he's had a lot of lived experience. And so when he writes to his friends, he's confessing error when he was a young pup at the convention, making mistakes, trying his best. And so he's scribbling out constitutional amendments to change the system even after the 12th Amendment, because he's seen that even the 12th Amendment is not up to snuff, so to speak, because it's going to have a train wreck in 1824. And the contingent election procedure which he participated in, he sees, doesn't make any more sense for now the country of 1824, this idea of state equality in the House of Representatives looks anachronistic to James Madison himself by the 1820s.

So Ned, I have a question about the initial moment, the initial design of the Constitution and the tensions between the Electoral College and the contingent election procedure as a way to elect a president. And so one of the several preeminent concerns of the founders during the Constitutional Convention was to ensure a vigorous executive. And part of that was to make sure that the executive was not beholden to the legislature. And that's why the Electoral College exists. So in other countries, like for example in the President United Kingdom, the legislature elects the prime minister. And the founders of the Constitution considered that possibility and then decided against it. But then if we put that together with the contingent election procedure, which is an election of a president by the legislature, along with what you said before about the anticipation of the pre 12th Amendment founders that this would happen on a fairly regular basis because they didn't anticipate a truly locked two party system where there would always or almost always be a majority candidate. So how can we reconcile the fact that they designed the Electoral College precisely to avoid the legislature appointing the executive and then anticipated that the contingent election procedure would routinely result in the legislature appointing the executive?

Yeah, it's a great question. I'm not sure we can completely reconcile it. I think I may go back to that first point I made, which is to assume rationality of the system is a mistake. Maybe even the original system wasn't fully rational on its own premises because it was a product of compromise and was done hastily. The component of the system, that is the Electoral College, was based on the premise that you just articulated, let's keep this out of Congress and have this independent entity called the Electoral College pick our president. And yet the backup procedure puts it back into Congress in this bizarre way of this special House vote with each state delegation getting one vote. Those two things don't sit well together. But if you go back and look at the votes taken by the framers at the Philadelphia convention, they're cycling through proposals right there. There's a lot of fluidity before they settle on this compromise and they capture that compromise in order to get it done. But I think it's a fairly fragile compromise and I'm not sure everybody who signed onto it fully agreed with all of its so called intellectual premises. So trying to articulate a well thought out philosophy that explains it is, I think, asking too much of it.

So the presupposition that you identify in your book that they wanted majoritarian presidents or presidents who represent the majority of the public, and you have this. I'm now forgetting the technical way you described this.

Compound. Yeah, the compound majority.

Compound majority. So you get a majority in the states and then you get a majority in the Electoral College. And that combination gives us presidents who in a really strong sense represent the people. The 1824 contingent election sows the seeds of the destruction of that as a democratic ideal in some sense, because Jackson presents himself as the person who should be president because he's gotten more votes than everybody else. Even though he hasn't gotten a majority, he has gotten more votes. And then the politicians all conspire and the deep state selects the son of the second President of the United States to be the president, even though his claim to being president under the combined majority, compound majority system is not bad. I mean, you know, in the sense that he's got a bigger, broader range of support, and that then seeds the beginning of the movement to plurality elections. Is that right?

No, that's exactly right. And a couple of key points there. Even this bizarre backup procedure is based on a concept of majority rule. It's not popular majority rule, but you need an absolute majority of states. Right. It's not good enough to get, you know, the most states in the contingent election. But what again, what I didn't realize until I did the research for the book was just how dynamic and interesting and the debate was in the states moving away from the majority vision because of the rise of Jackson. You know, you're absolutely correct. I think you can defend what happened in 1824. It's not our modern conception of majority rule, but it is consistent with the Jeffersonian version of it. But again, that's a version that may make some sense in 1803. By 1824, as you point out, we're already in a little bit of a different world. And New York in particular has a incredibly rich discussion about whether or not they're going to elect their electors, the members of their own delegation, to the Electoral College, based on a majority requirement or move to a plurality requirement. And the defenders of the old system point to the debates of the time of the 12th Amendment to say, we built this for majority wins and we should continue that. We may need to tinker how we do majority wins, but we've got to insist on majority wins. And the new Jacksonians say, no, no, no, no. Jackson was robbed and plurality is going to be good enough. And so the transformation of our Electoral College system that happens after 1824 is a transformation that happens at the level of state law. Because the Achilles heel of the 12th Amendment is to still allow state legislatures to choose the method of appointing electors, which they didn't modify because they didn't think they needed to. Because in a world of two party competition, it's only going to be us versus them. And this problem of plurality wins isn't going to manifest itself. And again, without any extra votes to spare in the Congress of 1803, don't tinker more than you have to, so fix the main point. So they thought they could live with letting state legislatures choose the manner of appointing electors? They said they thought to themselves, state legislatures. In fact, they said on the Congressional Record, state legislatures will choose the method most conducive to majority rule within the states. Yet they didn't anticipate the transformation that would occur after Andrew Jackson that would strip that majority requirement out of the system at the level of the state law. Which is why I wrote the book, because I looked at the returns in 2016, and this is a nonpartisan point. I didn't understand how you could win an Electoral College majority in the way that President Trump did by winning 100 electoral votes. He wins roughly 300 electoral votes, and 1/3 of them, about 100, come from states where he's under 50%. Florida, North Carolina, Arizona, Michigan, Wisconsin, Pennsylvania. He's less than 50% in all those states. States. So I asked myself, how is that consistent with this explicit requirement in the 12th Amendment that you win a majority of electoral votes? Or if not, it goes to the contingent procedure where you need a majority of states. There's this textual commitment to majority rule, and yet it doesn't operate that way. And it was only going back into the history did I learn just how profoundly they actually cared about majority rule. It wasn't just in the text, it was a philosophical commitment, and yet they failed to write the rules to guarantee that their vision would hold.

Yeah. So this telegraphs a little bit of your current work. But obviously, if they had remembered how important. If states had remembered how important majorities were, they could have adopted techniques to make sure that there was a majority winner in their state. Right. So, for example, work you're doing now about ranked choice voting could assure that there was a majority winner in the state, even if you allocate electors in a winner take all way, which we've talked about in other contexts, why that's problematic. But even with that, at least it should be the person who actually is the majority winner as opposed to the person who happens to be the plurality winner, though still not anywhere close to the majority. I think In Nevada in 1992, Bill Clinton gets 37% of the vote and wins all the electors in Nevada because obviously Ross Perot was a very strong candidate in that year and George Bush was as well. So if they had continued the Jeffersonian ideal, we could avoid the problems that we've seen in 2000 and 2016, maybe 2000, for sure. And so that's kind of the Democratic movement to revive that now through ranked choice voting or alternative changes in the states. But let's go back to make sure that we understand exactly what's going to happen if it gets into the House. So what's the procedure in the House that will then decide who the president is if the electoral votes are announced? So Congress is going to count the votes. We've had an episode of that disastrously complicated process, and Steve Siegel has helped us understand the Electoral Count Act. Let's say they come to, nobody has a majority, then just exactly what happens? What are the next steps?

Yeah, So I think, you know, you have to dust off the history of 1824 since it hasn't been used that that time. And I do think there may be some interesting questions about, you know, how much the House, in controlling its own procedures, can effectuate that process. Consistent with the constitutional requirement. But just to underscore, if I might, the point that you just emphasized, I think we only get to this procedure if your previous conversation points out that you get to the end of that whole complicated process of counting the electoral votes and you end up with a conclusion that nobody has a majority and that you still keep the denominator at 538. Because if, as a result of disqualifying some electoral votes of a state. State, you could run into this really difficult question about, under the 12th Amendment, how you calculate the majority. Because if you say Pennsylvania gets completely thrown out, then if the majority is 518 instead of 538, somebody still with less than 270 might still have a majority of 518. And even then, you wouldn't get to the 1824 procedure. So. So I'm happy to focus on the 1824 procedure or the current version of it, but I think it's crucial to know that it's the end of the line, so to speak. Every other twist and twist and turn has to be resolved in a different way.

Right. Great. So let me state the hypothetical more clearly. Assuming that no states get thrown out, so all states are in the denominator, so we have 538 potential electoral votes, and somebody gets less than 270. Nobody gets 270. Now we're in the 1824.

Well, like a 269. 269 tie, which could happen if you play with these electoral college calculators online. That's not inconceivable, obviously, a closer race than the polls may project, but still plausible. So, yes, or if there still could be, as you all know more than anybody else, there still could be a Hamiltonian elector, a conscientious elector, a faithless electoral, because notwithstanding the Supreme Court's decision, not every state has the kind of laws that eliminate that possibility. That's on the table too, if you get to that procedure. I think each delegation to the House shares a single vote. There is the risk of. Of abstaining delegations, because let's say a state has eight members in the House, four Republicans, four Democrats, they could split on the initial vote. Back again in the 1800 election, which used essentially the same procedure under the first virgin electoral college, it took umpteen number of ballots until some of that stalemate was broken. Goes back to the history you mentioned about Aaron Burr. And you know, Hamilton, Alexander Hamilton had to convince some members of his own Federalist Party that Jefferson was less objectionable. Than Burr. And for folks who seen the musical, I think the line there is essentially true, which was Hamilton said, basically, I hate Jefferson's morals, but at least he has them, whereas Burr doesn't. So let's go with Jefferson. But if that log jam hadn't been broken, there was a risk of a Civil War in 1800. I mean, Virginia and Pennsylvania had mobilized their state militias to march on the Capitol to insist that Jefferson get inaugurated. If Congress wasn't going to break the stalemate in Jefferson's favor, thankfully, it didn't come to that. But that was a serious threat of force. And if we have a, I mean, if we have a contingent election this year and it's the new House, not the old House, you know, right now, you know, President Trump has announced, you know, there's 26 state delegations that have Republican majorities. And he's been looking at that number. And 26 is the minimum necessary, you know, for an election under the, under that procedure. I mean, do you assume straight party line voting? I mean, you can game it out that way. But again, the what broke the deadlock in 1800 was somebody deviating from a straight party line vote at the behest of Alexander Hamilton. But if you had a deadlock, I mean, the 20th Amendment contemplates the possibility that the contingent election fails, right? The 20th Amendment is written with the possibility that the Senate is successful in electing a vice president by noon on January 20, where the house remains unsuccessful in electing a president because neither no candidate can muster 26 votes. And if that were to happen, the new vice president becomes acting president under the 20th amendment with the full powers of the presidency and of commander in chief powers until such time as the House manages to break its deadlock. So as soon as The House found 26 votes in the procedure, immediately that president elect would divest the vice president of commander and chief powers. But the Constitution contemplates that that was avoided in 1824 by the deal that Andrew Jackson saw as corrupt.

So, Ned, I have a question about the various ways in which we might have a deadlock in the contingent election. So perhaps the most obvious is if we have a 25, 25 tie. So all of the state's delegations vote, but we have a deadlock at 25, 25. And until somebody is able to be persuaded to change their vote there, we stay. Now, are there other, can I just

make a note here? I mean, it's interesting how D.C. has a role in the Electoral College, but D.C. doesn't have a role here. Right. So if D.C. did have a role, then there would, there wouldn't be.

So I have a hypothetical which I think should remain hypothetical. But, and I assume the answer to this at least normatively, in terms of a rule of law, you follow the rules, means this would be unconstitutional. But suppose the House of Representatives by majority vote said, well, we think D.C. should have a vote in the contingent election procedure, even though that's not explicitly contemplated. But we're putting two parts of the Constitution together, the 12th Amendment, which clearly does not allow for the D.C. to have a vote, but then the subsequent Amendment that gives D.C. three electoral votes means that D.C. should have some role to play. So we're, we're just going to, by House rule, as we set up the procedure for the contingent election, we're going to actually give the D.C. delegate a vote here.

And you know, the evil genius of Ned's hypothetical, which I hadn't thought about before here, is that, and it highlights one of the oddities of the contingent election feature, which is that the contingent election procedure relies on a majority of state delegations, not a majority of the members of the House. But the evil genius of Ned's hypothetical here is that at in his hypothetical, the majority of House members, which will presumably be Democrats in the coming Congress, a majority of House members could decide to add a delegation to D.C. thereby affecting the balance of the delegation.

Now, just to be clear, you know, this is the evil genius here is the devil advocate who is putting these hypotheticals. I'm not speaking in my own voice. I do not advocate this. Again, I think it would be unconstitutional. But the law professor in me that spins out devil's advocate type hypotheticals says, well, what if the House did this? You know, is there some judicial review that could stop the House from doing that? Or is that a political question under the political question doctrine? That, and the House controls its own rules, so they would be acting unconstitutionally. But the, but the, the enforcement of the Constitution would have to come from public opinion.

But can I jump in really quickly? Because, you know, we have talked on this miniseries quite a bit about Constitution hardball, but that line seems to just directly contradict the text which in the 12th Amendment says, in choosing the President, the votes shall be taken by states. And D.C. is just clearly not a state under that reading. So I'm not sure how they could get there. But Ned, I wanted to ask you then about the very next clause, because again, we like to spin through the law school hypotheticals that we all agree should remain hypothetical but the very next clause is a quorum for this purpose shall consist of a member or members from two thirds of the states. So we've talked a little bit and Larry, as you know in the class about could Democrats do things that have happened in states like Texas where an entire party walks out of the state capitol to deny a quorum, could that be a constitutional hardball play? If Democrats say Republicans have 26 or 27 delegations, but they're not gonna have two thirds, could all the Democrats walk out and deny a quorum and let the acting. Let the vice president be the acting president?

Yeah.

I mean, again, I find hardball distasteful just as a matter of my own approach to law. But I. Ned, you're not a man. I believe in. Second, actually, on another occasion, we could talk about, I think, I think democracy can't survive without a norm of fair play.

Yes. And that's true.

So to the extent to which we are losing that value and that hardball is of the moment, that really makes me worried long term. So. But having said that, if we're trying to imagine what hardball might look like, you know, as you know, I've done some thinking about what happens if the whole process in Congress breaks down for one reason or the other. And does that mean that January 20th arrives with the possibility of, again, assuming it's Speaker Pelosi capable of asserting the status of vice president or, excuse me, acting president, because of the breakdown? Now, again, that. That would require that the breakdown occurred, I think, prior to the contingent election process, because again, if the Senate is successful in electing a vice president, then your acting president is not the speaker, but the elected vice president. So that's how I would start to think about your hard. I mean, would it behoove the Democrats to play hardball in the House if it turned out that the Senate is going to elect. I mean, again, hypothetically, suppose they have the votes to elect Mike Pence, Reelect Mike Pence, vice president for second term, then he would become acting president for as long as they deny a quorum.

Yeah, that doesn't sound sensible. Okay. But then what's interesting about this calculation of 26 states is that some states are really close. And you. I've already begun to get fundraising appeals from the swing seat in a particular state. Like, if we can just win this one seat, we will make sure that we control this state or the Democrats will control this state. And you begin to think about the question of the influence that might be, what might operate here. Remember, in The Supreme Court in the Shofalo case, the. They were so fearful about electors being bribed. And that was kind of astonishing given that never has there been an elector who's been bribed. But 1800 suggests that there's a lot of reasons to worry about exactly what the influence would be that would bring particular members of the House of Representatives, just lowly Congresspeople, to vote one way or the other, to flip their delegation and therefore flip the results of the President.

Yeah. In the historical context for members of Congress, Congress being bribed, there's bad looking history and then there's better looking history. So the bad looking history is when you have a member of Congress who is arrested by the FBI with a brick of $100,000 of cash in his freezer, which was Representative Jefferson from Louisiana. But then if we think to the movie Lincoln and the passage of maybe the moral high point of the American Republic, the 13th Amendment that prohibited slavery, that entire movie about bribing congressmen to vote in favor of the passage of a constitutional amendment. So, you know, the, the norm of anti bribery of Congress members is weakly adhered to and not always morally clear, even at that.

Professor Foley, I have a follow up question for you related to the procedures that the House will use if they were to engage in the contingent election. So what are the historic procedures? For the House to break apart state by state and to cast their votes for the presidential election. How for instance, would Idaho decide to whom their votes would be allocated? Is it by secret ballot? Is there a process? Are there rules?

Yeah, I don't think we fully know the answer to that. At least I don't profess to know, in part because I think even if we could go back to 1824 and 1800 and sort of reconstruct exactly how the process happened, then that doesn't necessarily mean the House has to do it exactly the same way now. I mean, again, my DC hypothetical was meant to be hypothetical, but it was meant to put on the table that the House may have some powers as an institution to structure the voting process here. And I don't think those nooks and crannies have been fully explored. So, you know, could the House actually structure how the state delegations are supposed to operate in terms of when they meet, how they meet, what rules they might have to use for their own meetings? Or is that something that the Constitution in effects, you know, takes out of the normal rulemaking power of the House and somehow each state delegation on its own is entitled to its own mini rulemaking Authority, delegation by delegation that can't be controlled by the body. I don't think the Constitution really fully answers that question.

I mean, the 12th Amendment says that they vote by ballot, but that's ambiguous between the states. Vote by ballot in the sense that Arizona puts in a ballot that says Donald Trump or Joe Biden and the members of the House vote by ballot in order to determine what the state shall do. And if it's the latter, you know, if it's a secret ballot among the members of Congress, then the questions about bribery become both more compelling and less compelling. Right, because more compelling because, you know, somebody can imagine they could get away with it. Less compelling because the need to go through with the deal is removed. Like I can take the money but not actually vote that way and you have no way to know how I voted. Right. So it's a real mess. We can imagine it just completely falling apart, given the potential for influence here, at least in a world where hardball is the norm and people feel morally justified to do whatever it takes to make sure that their candidate wins. Yeah.

And to go back to the earlier point, I mean, I think we have to acknowledge that both times this was used, 1800 and 1824, there was deal making going on of one kind or another. Again, exactly what the deal was for Jefferson. And was it bribery or corrupt? I think that the historians have studied that and likewise you can characterize the deal or was it a deal between Adams and Clay to get get it in 1824. But it does seem like that procedure is going to put political negotiation on the table and it's going to make my own view of 1824 is it makes an American presidential election look more like parliamentary procedure in Israel or another country where they're trying to put together a coalition government when no party has won a majority of seats. And deal making is to be expected in politics in those circumstances.

But yeah, and there's a big deal. There's a big difference between a deal that is benefiting a member of Congress personally, like $10,000 or $10 million paid to the member of Congress and a deal for the state. You could easily imagine that the delegation says, well, you know, President Trump has promised us the following spending that we desperately need. And so therefore our delegations decided to vote for President Trump. That's at least public regarded deal making, the sort of things that Congress is supposed to be doing. And you can imagine both sides would be willing to make whatever deal is necessary, especially if it's one congressperson that is going to decide the election.

But it's interesting Ned's view on the 1824 election was that it's not clear there was a deal between Adams and Clay to become Secretary of State in an Adams administration. But that's very much what Jackson and the Jacksonians thought. And Jackson ran again, and that was a time of convulsive political conflict. And it is perhaps a coincidence that the president that our current president most often holds up as a role model is President Jackson. And so if we can imagine a situation where there's a contingent election and, you know, it's 25, 25, and then finally the deadlock is broken and it's not in Trump's favor, then, I mean, I think we have every reason to expect that Trump would characterize that as a corrupt bargain, just as Jackson did, and that could we see Trump run again in 2024 to come on.

Come on.

Or maybe it's Don Jr. Who runs in 2024 to try to evil avenge the corrupt bargain of a contingent election in 2020. And the reason why this is relevant is just that the perception of legitimacy of the process has echoing effects after the election. And we saw that in 1824 with respect to the contingent election procedure. And so if we have a contingent election where there's 30 House delegations that are in one party's control, then this probably wouldn't happen. But we happen have an extremely closely divided set of House delegations. And in that context, regardless of who wins the contingent election, if The Republicans retain 26 delegations, I think there's every reason to expect that a losing Democratic party for the presidency would say that that's anti Democratic, it's anti majoritarian, and potentially corrupt. And so one aspect of the parliamentary style procedure that you're saying the contingent election embodies is that it potentially creates this very fertile ground for continued opposition to the legitimacy of the election.

Just what we need. How perfectly timed in 2020. Okay. I think we have a picture of the potential disaster here. And we all understand that that means that there's going to be a vote in the delegations to determine which way the delegation will go. The delegation either goes for Trump or for Biden or is split. And therefore, if it splits and they can't resolve it, then they abstain. And so you still have to get to 26. Right. Even though one has abstained. And that process is going to be a process of bargaining as it was in 1800 and in 1824, and the sky's the limit, I would think. In what would be on the table and what might induce one member to vote, even for the best possible reasons, completely public regarding reasons, not saying that they're necessarily criminals. That's what the contingent election looks for. Now, what's interesting about the contingent election, I think this emphasizes something Ned said at the beginning. It really didn't make sense originally. It certainly makes no sense now. And when you look at proposals for reform, one striking fact is that this seems to be the sort of issue where there's cross partisan support for reform. So Mitch McConnell actually has proposed an amendment to the Constitution that would address the contingent election problem. It would have a runoff between the candidates scheduled if you got to the place of a contingent election. And I think that's because he, more than anybody, realizes the need for a president to have a real sense of democratic legitimacy, which I think all of us have a sense that this would SAP away. But there will be no election. There will be no amendment of the Constitution before 2020.

Larry, we've got 11 days left. Anything is possible.

Is it worth thinking about for precisely these legitimacy reasons? Is it worth thinking putting 1876 back on the table, which obviously did not go to the contingent election procedure? And I think that's really important to understand that it didn't and why it didn't, because if we have intense fighting, I think it might end up looking more like 1876 than 1824. But the point here is it was an awful deal for the country to abandon reconstruction to get President Hayes, but that was another example of deal making. And I just wonder whether or not the deal making forces that might be on the table to avoid some of these legitimacy issues might be at the stage of trying to avoid getting to the contingent election process as opposed to the deal that gets struck in that process. And

we happen to have an expert on this, although he's not going to be able to talk about it much. But Chris has actually been researching the question of, like, how do you think about the deal that makes this go away? And. And there's a lot that has to be negotiated. Right. Because there's a lot of liability issues on the table here that would also have to be part of that deal. You would expect, if it's in a deal to make President Trump step aside. Chris, can you say something?

Thank you, Professor Lessig. Yes. As one of the research assignments for this course, a few of us students have been working on looking at potential compromises and negotiated transitions of power in the presidential election, similar to the 1876 decision. And we're looking at, you know, what should be on the table, what are the major components of a negotiation? And I'll say it's pretty stomach churning to think that the presidential election could come down to some horse trading. And it feels pretty gross. And as you said, Professor Foley, the election of 1876 produced a pretty terrible compromise, unless maybe you consider what the alternative to that compromise was, which is possibly a second Civil War. And so we're trying to keep in mind that while any sort of negotiation seems problematic for Democratic nation, we have to keep in mind what the alternative to such a negotiated solution would be.

And just one question that I don't know the answer to is, is, is it more important that this deal be struck with Senator McConnell or President Trump?

I think the deal gets struck by Senator McConnell, assuming McConnell, you know, McConnell is going to hang around because I think he obviously has something he wants, which is preservation of his courts.

Yeah. And also as a formal matter, the sitting president doesn't have a role. He doesn't really have a seat at that table, except as a, with the bully pulpit. He can say, you know, Trumpist candidates are going to primary every single Republican politician who, who votes who, you know, is party to a deal to remove me from office. But aside from that, ultimately the seat at the table is okay. So if we're going to have a contingent election in the House, or if we're going to do something like 1876, where we decide through the counting of the electoral votes, somebody is going to get off across the 270 mark. All of those decisions are made in Congress. None of those decisions directly involve the president.

True. But don't, I mean, there is also Vice President Pence's seat at the table, at least for part of the process. So that's not President Trump, but it is another institutional actor

which could call into question his loyalty to President Trump, which is, I think he has thus far shown unwavering loyalty to President Trump. But we can imagine certain scenarios in which that might be tested.

Yeah. So we will talk next in this series about the role of the vice president. So we'll see how that plays out. But that's an important part of this process, too. I think we've covered it. Does anybody think there's another question we need to get answered? Okay, Ned, I'm so grateful. I also want to give you a chance to pitch your own podcast here, because it's been really wonderful. So how and where can people sign up for your podcast that you've been doing on These election related issues.

Sure. It's called Free and Fair with Fernita and Foley. A lot of alliteration there. Fernita Tolson is a law professor out at the University of Southern California and a real superstar in our field of election law. And I'm just honored and privileged that we're doing this. And Frank, you may not know this, Larry, but the reason why we're doing this is that we were both at a conference that you organized on the Electoral College, what was this? Last fall, I think, and we happen to be hanging out as part of the conference and we brainstorm the idea. So you, you deserve some paternity credit for the existence of this, this podcast. And, and, and anyway, it exists on the places you find podcasts, Apple, you know, your Apple podcasts or your, you know, where Google Play, wherever you find your podcasts, I think you can find this as well.

Yeah. And quick additional plug for it, Ned, because we've done a miniseries now on contested elections, another way to select the president. Looking in particular at history, but also how it's gonna apply in 2020 if folks want a really deep dive into 1876. I want to note that you all on your feed just posted an event you did at the National Constitution center that is all 1876, all the time. So we glancingly talked about it here. We've mentioned it in prior episodes, but if they want the definitive podcast account, check your feed. Free and Fair with Fernita and Foley.

Yeah, thanks for that because I think that was a useful discussion of that particular episode. So thanks.

Okay, well, so thank you very much and stay tuned in this podcast for the next part. In this unraveling of the presidential election. That's our episode about this extremely rare but extraordinarily troubling possibility of a contingent election. In the next episode, we'll think about a central actor in this play, the vice president, and about whether the vice president has, by virtue of his constitutional status as the president of the Senate, any special powers in the reckoning of the Electoral College vote. Stay tuned. These podcasts are produced by Equal Citizens US. You can find us on the web at EqualCitizens US and these podcasts at EqualCitizens US. Anotherway, you can find a place there to help spread these podcasts. Please share and spread these podcasts and you can find a place where you can help support the cost of producing and distributing these podcasts. That is Equal Citizens Us. You guessed it. Donate. We offer our advice here pro bono, but it turns out there are other costs that are not free. Stay tuned for the next episode. Thanks for listening. This is Larry Lessig.

Sam.