@workingpaper {661067,
	title = {Authoritarian Electoral College Underpopulation: Historical Reflections and a Possible Countermove under Article I, Section 5},
	year = {2020},
	abstract = {
	The possibility of a contested presidential election in November 2020 to January 2021 is real, and\&nbsp;one of the most common scenarios (discussed in a widely shared Newsweek article and by the legal\&nbsp;scholar Lawrence Lessig) involves states refusing to certify or report slates of electors to the\&nbsp;Electoral College with the result (and, in all likelihood, the intent) of throwing the election to the\&nbsp;House of Representatives. I call this scenario authoritarian Electoral College underpopulation.



	In this memorandum, I advance two points. First, neither Article II nor the Twelfth Amendment\&nbsp;was designed for such scenarios, being rather intended for situations where multi-candidate or\&nbsp;multiparty dynamics lead to no single candidate gaining a majority in the College (as occurred in\&nbsp;1800 and in 1824). Absent a multi-candidate scenario where no third candidate materializes, or\&nbsp;absent an Electoral College tie, no contingent vote of the House should occur, because states should\&nbsp;faithfully report their Electoral College slates in keeping with republican principles, that is, state\&nbsp;popular majorities.



	Second, I then argue that the House of Representatives could respond by reconfiguring its members\&nbsp;using its powers under Article I, Section 5, with a combination of selective delegation seating or\&nbsp;selective delegation reconstitution, to produce in the House contingent vote the result that would have\&nbsp;been produced by a legitimate (republican) Electoral College vote and/or the national popular vote.



	While Article I, Section 5 powers are subject to abuse, they could be used under extreme\&nbsp;circumstances to rectify unrepublican actions among state authorities. Indeed, some such Section 5\&nbsp;powers have been used before in a similar corrective manner, to counter unrepublican actions at the\&nbsp;state level. While reform of our Electoral College institutions is a more desirable {\textquotedblleft}first-best{\textquotedblright}\&nbsp;aspiration, this argument points to ways of protecting the republican principle in near-term\&nbsp;presidential elections.

},
	author = {Daniel Carpenter}
}
