Mansfield Fox

Law student. Yankees fan. Massive fraggle. Just living the American dream.

Sunday, November 14, 2004

An Ailin' Cheney and the Electoral College

An interesting question, raised by longtime reader PapaBear (OK, that's just my dad, but I wanted to give him a cool CB-style handle): although the latest Cheney heart scare seems to have been overblown, what would the Electoral College do if Cheney's health problems were to become so severe that he had to resign before each state's electors convene on December 13?

Alternately put: would Republican electors be bound to vote for a candidate they knew would not serve?

As a constitutional matter, I don't think there would be a problem. Nothing in the Eleventh Amendment requires electors to vote for the candidate who won their home state (that's the whole idea behind faithless electors). And Article II, Section 1, Clause 1 ("Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors...") seems to give the states a limited degree of power over electors that ceases once they're chosen. There's also the matter of the "faithless elector" statutes, but I don't think they've ever been used, and even if they were used I can't imagine they could be used to do anything more than impose criminal liability on wayward electors. So, my guess is: they could vote for someone other than Cheney, at least as a legal matter. (They could vote for someone other than Bush, too.) The question is a political one: what could the College get away with, politically?

So how might things work out, on a practical level? I suppose there are a couple of possibilities.

1. If Cheney leaves far enough ahead of the 12/13 date, Bush might have time to name his designated VP successor and get him confirmed by the Congress. (I imagine that this step would be largely a formality, especially given Republican control of the Congress.) The Electoral College would then vote in favor of the sitting Vice President and he'd simply continue in office on January 20th, 2005.

2. If Cheney leaves too close to 12/13 to have his successor confirmed by Congress, there seem to be three options available to the College. Bush could make his designated VP successor known, and the Electoral College could vote him in. (This would be a little problematic, since it would bypass both the people and the Congress in the selection of the vice president, but if handled sufficiently deftly it could probably work.) The alternative would be to have the College vote Cheney back in, and have him re-resign after January 20th. (Just to add another too-clever-by-half wrinkle, the new Congress could confirm Bush's VP nominee when it reconvenes on January, then have to re-confirm him after Cheney, who will have replaced his own successor, steps down.) OR, could the GOP electors abstain, giving no one a majority of the vice presidential vote and throwing the election to the House of Representatives? (I suspect not, since the Eleventh Amendment requires electors to write names on their ballots, which would seem to preclude the possibility of abstention.)

3. Theoretically, the electors could buck the direction of the Bush Administration entirely and name a vice president of their choice. You might see the Democratic electors try to break off a few moderate Republican electors (if such exist) behind the idea of a John McCain vice presidency, or somesuch. For a whole host of reasons, this scenario strikes me as super-unlikely. Remember that you wouldn't need a vice presidential resignation to make this work, and yet we've never seen this or anything like it. It would be political suicide for the Republicans doing it. And at any rate, both parties have a long-term interest in maintaining the tradition prohibiting such Electoral College shenanigans. I'll include this only for the sake of completeness.

None of these are easy solutions, which is why I suspect that if Cheney does have to step down for health reasons he'll do everything in his power to avoid doing it until after the inauguration.

A somewhat morbid sub-question: what if (God forbid) Dick Cheney dies before 12/13, but too late for the Congress to confirm his successor? Could the Electoral College vote for dead man, or would they have to vote for someone else? If they voted for a deceased Dick Cheney, what would happen on January 20th? Would no one be sworn in? Or could the Congress confirm Cheney's successor before that date, to have him get sworn in with the President on Inauguration Day? That would seem the easiest, most practical solution, but it seems to monkey with the constitutional more than just a little.