Congress’s timeline for presidential elections is actively dangerous.
The nation hovered near the edge of crisis in late December and early January, even as most Americans remained blissfully unaware of the danger. Few realize that Congress’s timeline for presidential elections increased the incentives for bad actors to make a third attempt on Donald Trump’s life.
A successful assassination attempt would have given Kamala Harris a route to the White House, even though she soundly lost in November.
Fortunately, most of these bad actors don’t understand the presidential election system well, and they did not see their moment. This article could not be written before January 6 for fear of alerting them, but it must be written now.
Importantly, the responsibility lands squarely on Congress and the timeline it created, not the Electoral College. Congress has four years to understand the mistakes it’s made—and to fix them.
A little historical background is helpful. Believe it or not, the problem goes as far back as 1872.
The election that year featured Republican Ulysses S. Grant, running for re-election against Democratic-Liberal Republican Horace Greeley. The campaign was not going well for Greeley, and matters became even worse when his wife unfortunately passed away mere days before Election Day.
Greeley was devastated, and he became even more despondent after the election: He’d won only sixty-six pledged electors to Grant’s 286. “I was the worst beaten man who ever ran for the high office,” he mourned. His mental and physical state declined rapidly, and he passed away in late November. Greeley’s death made him the first (and only) candidate to die between Election Day and the meetings of the Electoral College.
His electors didn’t know what to do. They’d made pledges to support Greeley, but did they have to keep that pledge even after his death? In the end, three electors voted for a dead man. The remaining electors split their votes among a variety of Democrats.
This story comes into play more than 150 years later because of what happened when it came time for Congress to count those votes. Someone made an objection that the votes for Greeley could not be counted because Greeley “was dead at the time said electors assembled to cast their votes and was not ‘a person’ within the meaning of the Constitution.” A debate ensued: It was an opportunity to decide a difficult constitutional question at a time where no political party would benefit one way or another.
In the end, the three votes for Greeley were not counted. Inadvertently, the 1873 Congress created a dangerous situation for any winning candidate.
If a third attempt on Trump’s life had been successful after the meetings of the electors but before Congress counted the votes, Democrats could have used the Greeley precedent to argue that votes for Trump could not be counted. If that argument succeeded, Trump votes would be thrown out, leaving no candidate with a majority of electors. In that scenario, it falls to the House of Representatives to select a President, but Harris would have been the only eligible candidate because she was the only other person to receive electoral votes.
The losing presidential candidate would end up in the White House.
Fortunately, Congress has full authority to solve this problem with relative ease: First, the gap between the meetings of the Electoral College and the counting of the votes should be drastically shortened. Second, Congress should pass a resolution, documenting disagreement with the Greeley precedent and committing to count votes for any candidate who was eligible for the presidency on Election Day.
Thus, even if the worst were to happen, normal succession rules would kick in after Congress counts the electors’ votes.
The scenarios discussed here aren’t pretty, but it would be naïve and foolhardy to ignore the incentives created by the current state of affairs. Two attempts were made to assassinate a presidential candidate last year—and multiple terrorist attacks have been made in recent days, including an attempt to detonate a Tesla Cybertruck in front of Trump Tower in Las Vegas.
The Constitution relies on Congress to make sure that election timelines are reasonable. It’s long past time for Congress to act.
More on presidential elections and the Electoral College can be found in my book, Why We Need the Electoral College.