This collection on American democracy challenges and complements blog posts and opinion pieces that are typical staples of the 24/7 news cycle in the lead up to US elections. You'll find reports about election and campaign administration, voting access and participation, government performance and perceptions, the role of the media in civil society, and more.

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"VOTE!" by Paul Sableman licensed under CC BY 2.0

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Who Decides Disputed Presidential Elections: Congress or the Vice President?

November 18, 2022

The 2020 elections raised fundamental questions about the resolution of disputes over presidential electors. Challenges to the legitimacy of President Joe Biden's victory arose because of the 12th Amendment's silence to the Constitution, saying in the passive voice that, after the vice president opens the electoral ballots before both houses of Congress, "the votes shall then be counted."We argue that the best reading of the Constitution finds that the vice president has the primary authority to resolve disputes over the legitimacy of electoral votes. While this is a difficult question with several alternative solutions, the constitutional structure and design should provide the answer. The Constitution rejects popular selection of the president by the electorate as a whole, Congress, or the House of Representatives.Instead, the framers created a state-centric process for choosing the president that relies on state legislatures to choose electors. Allowing Congress to reject electors sent by the states on grounds created by Congress alone would undermine the founders' design. Instead, the Constitution leaves the resolution of disputes over competing electoral slates up to the vice president as the least-worst option among the various alternatives. Short of dueling electors, the Electoral College system relies on the states to create a system for choosing electors and settling questions over their legitimacy.This reading of the Constitution has important implications for recent proposals to amend the Electoral Count Act (ECA). These amendments would raise the minimum number of votes required to challenge electoral votes in the House and Senate, and they would set out presumptions in favor of different branches of state government in the certification of electors.These proposals, while perhaps useful in the context of the ECA, do not address its core constitutional defect. Even if Congress adopts these proposals, it has still seized the power to reject electors even if a state has sent a single slate forward for opening and counting in the special joint session under the 12th Amendment. This violates the separation of powers and the founders' design that presidential selection rest on the people acting through the states, rather than Congress.

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