More Thoughts on a Cancelled Election

David Super

Since my article on the consequences of President Trump cancelling the November election appeared in Politico, I have been having an interesting discussion with Howard Wasserman.  Professor Wasserman previously blogged about essentially this problem and came to many of the same conclusions that I did.  He has since posted two thoughtful responses. 


Professor Wasserman dove deeper than I did into the question of gubernatorial appointments of replacements for senators whose terms expire in January.  He finds that three states, Oklahoma, Oregon, and Rhode Island, lack laws empowering their governors to fill vacancies in the Senate.  If those seats remained empty, the 51-49 Democratic Senate majority that I predicted would turn into a 49-48 Democratic edge.  All three of those, however, are solid one-party states, and with the stakes this high one can well imagine them rapidly enacting vacancy-filling statutes, with their governors re-appointing the incumbents.  This would only tip the balance if Oklahoma enacted such a statute and neither of the others did. 

A more intriguing puzzle is posed by North Carolina, a state with an incumbent Republican senator but a Democratic governor.  I had counted that as a Democratic pick-up if the failure to hold an election left the Senate seat vacant.  Professor Wasserman points out, however, that North Carolina law ordinarily requires the governor to appoint replacement senators from a list submitted by the executive committee of the former senator’s party.  If this procedure were followed, the Republican executive committee might nominate incumbent Senator Tillis plus two people so repugnant that they could be confident that the Governor would never choose them. 

But the law in question applies “[w]henever there shall be a vacancy in the office of United States Senator from this State, whether caused by death, resignation, or otherwise than by expiration of term”.  As Senator Tillis’s current term is, in fact, expiring, some might argue this means that the requirement to appoint from a partisan list disappears:  no senator had previously been elected to the term beginning January 3, 2021, and therefore no party executive committee has the right to submit a list of names.  If so, in the absence of an election North Carolina presumably gets a Democratic senator.  If, on the other hand, this means that, under these circumstances, North Carolina lacks gubernatorial appointment authority, the new Senate could be deadlocked 48-48. 

For what it is worth, North Carolina’s attorney general is a Democrat and the balance of power on its Supreme Court is held by justices elected without partisan affiliation.  The Senate might claim the right to resolve this question on the basis of its constitutional right to judge the qualifications of its members, but if it has 48 other senators of each party it may have difficulty deciding whether a Democrat appointed by Gov. Cooper may take office.  Because North Carolina’s legislature is staunchly Republican (though not by a veto-proof margin), the state presumably would be unable to amend its gubernatorial appointment law.  Again, however, if Oregon and Rhode Island quickly give their governors appointment power, the lack of a North Carolina senator would not matter.  This does raise the question of whether the party in opposition to the governor in some other states will try to argue that their governors may not fill vacancies resulting from the failure to hold an election. 

Professor Wasserman also points out that a Democratic majority might not wish to elect Sen. Leahy president pro tem, despite his being its most senior senator, because his assuming the presidency would create a vacancy in the Senate that Vermont’s Republican governor could then fill.  I agree, under those premises.  Because the Democrats could simply shift to another senator whose governor is Democratic, Governor Scott might conclude that he is conceding nothing – and could put a Vermonter in the White House – if he promised to appoint a Democrat to replace Senator Leahy should his Senate colleagues choose him.  I cannot imagine the Senate Democratic leadership would want a divisive open contest for president-in-waiting.  If they conclude they dare not choose Senator Leahy, the next-most-senior Democrat is Senator Dianne Feinstein of California, whose governor is a Democrat.

More broadly, the cancellation of an election is so abhorrent, and the chances of taking the White House are so evenly balanced, that this situation cries out for a negotiated compromise to avert the worst constitutional crisis since Reconstruction.  Resolving this conflict without a deal, and seating a president whom half the country regards as a putschist, would be spectacularly dangerous.  And the Supreme Court could destroy its legitimacy – and hence its ability to resist all manner of court-packing schemes – if it were to seat a Republican on a 5-4 vote. 

Whether our current leaders are capable of that, however, is far from clear.  Entering into any kind of compromise would surely be a career-ender for a Republican; depending on the terms, it could ruin a Democratic leader as well. 

As my Politico article suggests, however, a fair number of individuals would have the chance to bring this contest to a decisive conclusion.  As few as four strategically placed Republican representatives could tip the balance for Joe Biden in the House, if it still exists.  A Republican senator could vote for the Democratic vice presidential candidate or to elect a Democrat president pro tem of the Senate.  A few Republican electors could decide that their party should not be allowed to keep the presidency after cancelling the election.  A few electors from each party could agree to vote for someone other than President Trump or former Vice President Biden, giving the House a third option.  Figuring out who a compromise candidate could be is difficult:  perhaps former Rhode Island Governor and Senator Lincoln Chafee (who has served in both parties), current Kansas Governor Laura Kelly (who was elected with the support of many prominent Republicans), or former Maine Senator Olympia Snowe (arguably the last moderate Republican senator).  (Here I am assuming defections to place a Democrat or neutral in the White House as I cannot imagine a Democrat wanting to reward President Trump or Vice President Pence for cancelling the election – or bringing any of the party’s rank-and-file along if they did.  

Our system is not built to resolve this sort of question cleanly because our nation’s leaders throughout the years have been confident it could never occur.  We should all hope that they were right. 

@DavidASuper1
Posted 5:11 PM by David Super [link]