The possibility of a contested presidential election in November 2020 to January 2021 is real, and one of the most common scenarios (discussed in a widely shared Newsweek article and by the legal scholar Lawrence Lessig) involves states refusing to certify or report slates of electors to the Electoral College with the result (and, in all likelihood, the intent) of throwing the election to the 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 was designed for such scenarios, being rather intended for situations where multi-candidate or multiparty dynamics lead to no single candidate gaining a majority in the College (as occurred in 1800 and in 1824). Absent a multi-candidate scenario where no third candidate materializes, or absent an Electoral College tie, no contingent vote of the House should occur, because states should faithfully report their Electoral College slates in keeping with republican principles, that is, state popular majorities.
Second, I then argue that the House of Representatives could respond by reconfiguring its members using its powers under Article I, Section 5, with a combination of selective delegation seating or selective delegation reconstitution, to produce in the House contingent vote the result that would have 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 circumstances to rectify unrepublican actions among state authorities. Indeed, some such Section 5 powers have been used before in a similar corrective manner, to counter unrepublican actions at the state level. While reform of our Electoral College institutions is a more desirable “first-best” aspiration, this argument points to ways of protecting the republican principle in near-term presidential elections.
We introduce the Congressional Petitions Database (CPD), an original endeavor tracking virtually every petition introduced to Congress from 1789 to 1949. Exploiting Congress’s ritual reading of petition prayers, we leverage a supervised machine learning algorithm to create a database comprising over 537,000 petitions. For each petition we code the prayer and its subject matter, geographic origin, initial disposition and other information. Initial analyses suggest that (1) per-capita petitioning peaked nationwide in the mid- and late-nineteenth century and remained at higher levels until World War I, declining appreciably thereafter; (2) the South exhibits lower petitioning from 1802 to 1870 (but not before 1800), cratering in the 1840s through 1860s and again later in the Jim Crow Era; and (3) the unenfranchised petitioned regularly and their petitions were afforded process similar to all others. The CPD will be useful for studies of legislative development, social movements, interest group advocacy, federalism and sectionalism.