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Opinion | There’s Still a Loaded Weapon Lying Around in Our Election System

The “failed election” provision traces back to the Presidential Election Day Act, first enacted in 1845. That act, after specifying the date for the presidential election, goes on to provide: “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.”

The act, however, does not define what it means for an election to have “failed.” Nor does past practice give any more determinate meaning to this term; this provision has never been invoked, at least since the closely related federal Electoral Count Act was passed in 1887. But the little-known history of the act reveals that one major purpose for it is now anachronistic, and the act needs to be modernized to reflect the limited purposes for which it might remain relevant today.

When Congress was creating the Presidential Election Day Act, the “failed election” provision was added at the insistence of representatives from New Hampshire and Virginia. At the time, New Hampshire required that a candidate had to receive a majority of all votes cast to be elected. A candidate who finished first but with only a plurality of the vote was not elected. The backup process in New Hampshire, as in other states that similarly required a “majority of votes” to win, was either that the legislature would appoint the office holder or that a second election would be held. Thus, these states would not be able to choose their presidential electors on Election Day, whenever no candidate received a “majority” of the votes — which would happen with third-party candidates on the ballot. When the bill was next debated, the House responded by adding the “failed election” provision now found in current law.

The history of why federal election law includes this “failed election” provision is part of the story of how democracy was understood early in American history. Many state constitutions initially included these “majority” vote provisions. This reflected the link between democracy and “majority rule” as that was understood early on. But as experience with democratic elections developed, states soon discovered that many elections involved a candidate winning a plurality, but not a majority, of the votes. That would trigger a backup provision in state laws — a provision that provided either that the election would be held repeatedly until someone received a majority of votes, or that the legislature was empowered to bypass an election and appoint the officeholder (the current Georgia Senate runoff elections are a remnant of this history).

That first alternative sometimes led to farcical situations. At least one congressional seat remained vacant for an entire two-year term because, despite repeated elections, no candidate ever received a majority of the vote. Similarly, the New Hampshire Legislature appointed eight governors in the 50 years leading up to the state’s switch to a plurality provision in 1912. As these experiences mounted and democratic understandings matured, nearly all states replaced their “majority vote” requirements with “plurality vote” ones. The adoption of these “plurality vote” rules eliminated a major reason for the “failed election” provision. Two different, contemporary purposes might still warrant retaining a version of this provision, but if so, the provision needs to be rewritten to address these two specific situations in safer, narrowly defined terms.

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