Prevent Avoidable Constitutional Crises

The Founders produced a remarkable document at the Constitutional Convention in 1787, ably explained and justified in the Federalist Papers - for the most part. But there were also some bloopers:

• The idea of the runner-up being vice-president was a phenomenally bad idea, obvious as soon as Aaron Burr came along. Addressed poorly in the 12th Amendment.
• Failing to account for the possibility that an infirm president might be incapacitated and somebody else would act on his behalf - as happened to Wilson after his stroke. Addressed poorly in the 25th Amendment.
• Three fifths of a person? Addressed finally by the 13th, 14th, and 15th Amendments, but only after a grave bloody existential crisis. That crisis seems to recur every generation, so far with less bloodshed.

And what happens in these cases?

• No Direct Presidential Election.

  Suppose a sufficient number of states adopt the National Popular Vote Interstate Compact, but the first time it is in effect, the national popular vote is so close that it is immediately disputed... but some secretaries of state, not necessarily of Compact states, for reasons of political advantage, refuse to order a recount in their state.

• The most insignificant office that ever the invention of man contrived.

  Why do we elect a vice-president? He might become president but probably won't. In the meantime, to be useful, he has to be somebody chosen by the president. What happens if the vice-president becomes useless to the president, without committing a crime or going insane. Might as well let the president choose a new vice-president, subject to confirmation by Congress.

• We need a president now.

  Have you read the 12th Amendment? It's nuts. We need a more clearcut way of resolving indecisive elections - If we're going to have electoral votes, we need a rational way of resolving a lack of majority. And it might as well apply any time we need a president fast.

• We need a president now.

  A president or vice-president proves to be plainly incompetent but not criminal or mentally disabled.

• We need a president now.

  A presidential nominee secures enough delegate votes to win the party's nomination at its convention, but before the convention, dies, becomes incompetent, or lands in prison.

• We need a president now.

  A presidential or vice-presidential nominee, between the time of the nominating convention and the election, dies, becomes incompetent, or lands in prison.

• Failed elections.

  Some states used to have a concept of "failed elections" that did not produce a majority winner. Now most states accept a plurality, but the Presidential Election Day Act of 1845 still provides for "failed elections" without saying what those are. It's an ambiguity that Republicans have been eager to exploit, so far without success. It should be repealed or updated - it's a Federal statute, not part of the Constitution.

• Dead president-elect.

  Good news - the case of a dead elected but not yet inaugurated president or vice-president seems to be handled by the 20th Amendment.

It's too late to fix these issues for 2020, but maybe we can make some progress by 2024.

The advocates of a direct presidential election might not have thought through the most likely failure modes, particularly in the light of the phenomenally bitter partisanship of the 2020 election. In the event of a disputed outcome, can we expect to recount the entire country in time? What if some states decline to recount? Do residents of other states have standing to sue?

Within our constitutional system, the Federal government has powers, the states have powers, but interstate compacts have no constitutional standing at all. That system is apt to fail, bitterly, the first time there is any dispute as to outcome.

It's much more robust to have a number of smaller pieces, most of which will have clear outcomes, so the scope of recounts is as small as possible One way to do this is to have one electoral vote for each House district. Maine and Nebraska already do that. That way disputes about elections are relatively easy to resolve and entirely in-state.

Of course, any scheme base on House districts depends on an unbiased drawing of district boundaries. That's a direct attack on Republican minority rule, and intense opposition can be expected.

There is a problem with the two extra electoral votes each state has as part of the Constitution's rural bias.

• The fairest way to deal with that is to allow each of n House districts 1+2/n electoral votes. That way the state gets its constitutionally mandated n+2 electoral votes total. Adding up fractional votes might seem challenging but it's a solvable arithmetic problem.
• Another approach, adopted by Maine and Nebraska, is to give the two extra votes to the candidate with the largest popular vote in that state. That is easy, but hardly fair, and subject to state-wide challenge if it's close enough.
• A better idea is to use ranked-choice-voting for electoral votes. That allows third party candidates to conduct meaningful campaigns without wasting their voter's votes, if the campaigns turn out not to be meaningful enough. And the two extra votes can then be allocated to the first and second choices statewide. In the event the first and second choices are very close, it's no problem - each gets one electoral vote. No need for a recount unless the top three are all very close together - very unlikely!
• Best of all would be to eliminate the two extra votes - but that would require a constitutional amendment that would be opposed by small states and rural states and Republican states.

All these plans have the defect that they need to be imposed nationally. California will not voluntarily and unilaterally adopt the Maine/Nebraska plan, giving up electoral votes to the Republican candidate, unless another large Republican state does so simultaneously - Texas comes to mind.

Of course there is no need for Article 2's actual convening of electors in state capitols on a specified date. It would suffice for the secretarys of state to transmit the election results to the president of the senate - in other words, the vice-president - on the appointed day.

Congress has wrestled with these issues and mostly lost the wrestling match. The Presidential Succession Act, as amended several times, governs but fortunately has never been invoked. Better to have a simpler plan laid out in advance.

Any plan based on the House has to be based on individual votes by members (not by state delegations as in the 12th Amendment) and House districts must be fairly districted. Otherwise no Democratic support.

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