timeline
There are, how to say it, many problems with the way we elect presidents in the United States.
One is the length of time between Election Day and the Inauguration of a new president. The process set out in the Constitution allows plenty of space for election disputes to be resolved, for information to travel across the country, and for the long bureaucratic work of the Transition™.
There’s plenty of time too, though, for delay and doubt. An outgoing president might not much like their successor, or they might not feel like leaving office at all. Given the great powers of the presidency, this long lame duck period is tempting time for shenanigans. Even absent any mischief, the time between November and January can be a time of unclear authority. It would be better all around for the handover of power to be accomplished more quickly.
Here I suggest a possible alternative timeline of events. I aim for balance between two conflicting demands on time: enough to resolve disputes and make sure everything’s done right, but not so much that the country is dragged into doubt or danger.
So here’s how I imagine the next election could be run—
- Election Day stays the same. Change the date if you want; make it fall on a weekend or make it a national holiday or whatever, but the process stays the same. States run elections within the bounds of State, Federal, and Constitutional law.
- Disputes, challenges, and close calls are likewise handled much as now: at the local, county, and State level, through whatever processes the several States establish. Audits are done & courts hear cases as needed.
- The Electoral College meets, and here’s where things change from the current setup. As soon as possible after challenges are resolved and election returns are certain in a given State, that State’s electors meet and cast their electoral votes. Electors from all the States never meet as one body anyway, so there’s no need to wait for a consistent day across the Union. As soon as a State’s electors can make it to their statehouse, they vote and send all the necessary paperwork to Washington.
- Congress receives electoral votes on a rolling basis. Because different State’s electors meet at different times, certificates of vote arrive in Washington at different times as well, trickling in to the Senate’s mailbox. The Secretary of the Senate keeps a running tally of the votes received. Each day that votes are received, the Secretary notifies the Senate of— which States’ votes came in, how many and who for, and the Secretary’s current totals for each candidate. The Senate notifies the House of the same.
- A Joint Session to count electoral votes is triggered when the Secretary of the Senate has received a majority of electoral votes for one candidate. The Secretary notifies the Senate, which notifies the House, and a Joint Session is organized as soon as possible. Congress is called back immediately from recess if necessary. For the purposes of the counting, 538 remains the presumptive total number of votes and 270 the necessary majority. Much as now, Congress confirms the validity of the certificates and officially proclaims the winner.
- The new president takes office as soon as possible after the count. Perhaps it’s the very same day. Perhaps for practicality it’s noon on the day following. Or whatever. But as soon as possible.
- Congress counts the leftover electoral votes as they come in. The Secretary of the Senate continues the informal tally, and it’s probably most convenient to count them in Joint Session in a batch when they all finally arrive. The leftovers do need to be counted & affirmed by Congress. It’s not that they don’t matter; it’s just that they don’t matter to the outcome of the election.
The places where the most time is saved in this alternative are between State Certification & Electoral College meeting (2–3) and Electoral College meeting & Joint Session counting (3–5). In the current process, even if a State’s election is won in a landslide, there are no challenges, and State officials certify results on election night, the State has to sit on those results until the day appointed for electors to meet. Similarly, no matter when the States send their electoral votes to Washington, the Senate has to sit on those until the next Congress meets in January.
The gap between Joint Session counting & taking office (5–6) is also removed. You can still have a formal inauguration ceremony later on if you want; take your sweet time setting up a stage and bringing in guests. But as a practical matter, the powers of the presidency should transfer over as soon as Congress finalizes the count.
As the system stands now, we can unofficially “know” the winner of an election for weeks—months!—before they actually take office. We have seen how bad incentives predominate when a losing lame duck president remains in office too long. This must change.
There are still lots of problems with the outline above. It turns out that amending the Constitution is really hard! Here are a few of the problems that I’ve identified—
“As soon as possible” is used a lot in the steps above. The innocent view assumes that as soon as a State can move to the next step in the process they will do so. But a flexible timeline opens some opportunities for shenanigans even as it closes others. Say an EC majority for Party A comes down to a swing State whose legislature is controlled by Party B. You can imagine that State delaying: perhaps some of its electors refuse to come to the statehouse, preventing a quorum, so their EC vote can’t take place. Votes trickle in to Congress from around the country, dutifully tallied by the Secretary, but the Joint Session is never triggered because 270 is never reached. Deadlines will need to be set for some steps, ie. “as soon as possible but by Month Day at the latest.” The question then is where to put the deadlines.
What if no one gets 270? Our current process makes provision for special cases—if no candidate gets a majority or if there’s a tie. So making 270 the trigger for the Joint Session is problematic in both innocent & diabolical scenarios:
- Innocent. Electoral votes are cast by all the States but the result is a lack of majority or tie. One solution to this is simple: make the trigger for Joint Session either the Secretary of the Senate receives EC votes totaling 270 for one candidate or the Secretary receives EC votes from all 50 States & the District. Or there could be an Absolute Final Deadline whereafter the JS is triggered, no matter the number of votes received.
- Diabolical. This scenario is related to the problems of delay above. Say an EC tie–breaking vote for Party A comes down to a swing State controlled by Party B. Party B knows that a vote in the House will go its way. So the State delays sending its EC votes. 270 is not reached. Votes from all 50+D.C. are not received. The Absolute Final Deadline passes. Congress meets and resolves the tie for Party B. Not good. Solving the majority problem is easier than solving the tie problem. After the Absolute Final Deadline, the majority needed to win could be changed to a majority of the votes received by Congress by that time. If you don’t send ’em in, you don’t count toward the total. As to figuring out whether a tie is real or manufactured, and what to do about it, uhh, ¯|(ツ)/¯
- A related problem: which Congress counts the electoral votes? If the States move fast enough (ie before January 3) it could be the outgoing Congress. If they don’t, it would be the new Congress. I don’t know if one is objectively better than the other, but the ways this could be gamed in close scenarios to get a more sympathetic Congress are worth some thought.
Some presidents will have longer terms than others. The difference could be days, or weeks, or I guess up to a month or two isn’t impossible. It all depends on how quickly challenges can be resolved in the States, and then on some logistics, like the speed of the mail. I can’t decide if this is actually a problem or not. (Do leap years make this true already, by a small amount?) I suppose that partisans could again delay to extend their president’s tenure as long as possible. Some solutions—
- The outgoing president continues to serve as President ex officio with no powers for a certain period, say through a set Inauguration Day. Or put it the other way around, with the new president being President-elect-but-with-all-the-powers-and-privileges-of-the-presidency until Inauguration Day when they become President-president. This fixes the problem on paper, at least.
- Give the outgoing president some (clearly defined and limited) powers! Make a Council of Former Presidents with an advisory role on appointments or something, or even a veto power over some categories of legislation. Most recent ex–president becomes chair of the Council with an extra vote.
- Closer to the realm of reality: make the length of presidential terms a fixed number of days. At the end of the term, the election process begins as above. For the whole duration of the process, the powers of the presidency are held by a caretaker executive. The clock on the incoming president’s term starts when Congress certifies their win. This means that Election Day, rather than being fixed, would float slightly as years go on. (Who is the caretaker? Who knows— perhaps it’s a rotating or randomly selected State governor, or a small group of legislators, or—wait for it—the Council of Former Presidents!)
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