Can you talk about the 25th Amendment and why it was added to the constitution?
The 25th amendment was provoked by the experience of several presidents in history who were incapacitated, and we didn't have really clear procedures for what to do, since they weren’t actually dead. The most severe example was Woodrow Wilson, who had a stroke. Historians dispute whether his wife was running the country, or if other advisers were running the country, or if Wilson was still at least partly functional.
But the more proximate source was probably when Dwight Eisenhower had a heart attack while he was president and Vice President Richard Nixon did operate as acting president for a time, although that wasn’t an official title or status. Nixon wrote that he felt like he was walking on eggshells because he didn’t want to appear to be taking over the presidency without authorization. The 25th Amendment was ratified in 1967, more than a decade after the Eisenhower incident.
Now the amendment is on the books, and it’s important that we have it.
Who decides when to invoke this? Who decides whether the president is capable of governing in these situations?
The president, actually. He can transmit a statement saying that he’s unable to discharge the powers and duties of his office and, in many ways, this is easiest way for it to happen. Then the vice president becomes acting president.
However, Section IV of the 25th Amendment says that whenever the vice president and a majority of the “principal officers” of the executive departments agree—in practice, this means the cabinet secretaries—they can provide a written declaration that the president is unable to discharge the duties of the office, and the vice president becomes acting president. You can imagine a situation where the president is so disabled that the president is unable to transmit a message, then the vice president and the cabinet officers will do it.
There is of course a possibility where the vice president and a majority of the cabinet might think that the president is not capable of serving, but the president thinks he is capable of serving. In that case, Congress decides the issue and is required to assemble within 48 hours for that purpose of their decision if they’re not in session. It has 21 days to determine by a two-thirds vote of both houses that the president was unable to discharge the powers and duties of his office.
Trump has said he’s not sure if he’ll accept the results of the election as valid. What happens if he loses but refuses to concede? Can he just stay in office while he fights the results in court?
There could be several different processes. If it is that the vote count is disputed, there can be litigation, and they can go all the way to the Supreme Court as happened in Bush v. Gore.
It’s also true that under the constitution, it is the state legislators who decide on the members of the Electoral College. They have laws in place that allocate, in virtually all the states, the state’s delegates to the winner of the state’s popular vote. But that is a matter of state legislative choice; it’s not constitutionally required.
In the case of the state legislature in Pennsylvania, the Republicans have indicated that they might well step in and themselves declare who the winner was in a disputed election and assign the Electoral College delegates accordingly. That choice would probably result in further litigation, so the election might end up in court anyway; but the state legislatures might try to forestall that through direct action of their own in designating the delegates.
Congress would face the choice to decide if these are correctly reported electoral results and count them. Senators can challenge the electoral count reported from different states and those might have to be settled in Congress if not by litigation. Our modern trend set by Bush v. Gore is, however, simply to let the courts settle these issues. Republicans are pushing to get Amy Coney Barrett on the Supreme Court so they’ll have an additional vote there.
All of this is not something where we have clear guidelines or clear precedents. We’ve had disputed elections before, the biggest example is the election of 1876, in which the Republican candidate, Rutherford B. Hayes, lost the popular vote to his opponent, Democrat Samuel J. Tilden, by a fairly large amount. But there were disputed results from the southern states that had military reconstruction governments in place, and white Democrats in those states challenged the results reported by the Republican-controlled reconstruction governments. Congress then set up a special bipartisan, but slightly Republican-leaning, commission made up of members from both chambers of Congress and Supreme Court justices to resolve those disputed results. They gave all the electoral votes to the Republican candidate, electing Hayes despite his losing the popular vote. So, again, that could happen in the case of disputed results now; but the more recent precedent is simply to let the courts resolve.
In March, you were confident we could have a successful election this November. Do you feel the same way today?
I am less optimistic than in March. I was even more anxious about a month or two ago, but I’m by no means complacent, and the reason for that is twofold. The first is that we’ve had the efforts to improve the election process in a number of states subjected to litigation, with court decisions going back and forth. South Carolina, for example, had a reversal of a lower court decision which had said that people don’t have to have a witness if they have an absentee mail-in ballot. Then a higher court said, no, you do have to have a witness. This litigation and conflicting decisions have meant that rather than gearing up our capacities, we have instead in a number of states continuing confusion as to what processes can be followed.
At the same time, the president has ratcheted up his rhetoric, indicating that he will dispute the results. He said that if he doesn’t win, it’s because the election is rigged and it will be because of vote fraud. Several months ago, he said, ‘If I lose I’ll go,’ but he has stopped saying that. He has refused to say that, including in the first presidential debate. So, there’s definitely cause for concern.
Having said that, there has been since last March, and especially over the last four or five months, a tremendous mobilization of nonprofits seeking to assist election officials in getting equipment, in recruiting poll watchers, in establishing drop boxes and more polling station sites, etc. So, I don’t think it will definitely be a catastrophe. I’m not saying that there’s no hope for a smooth election. But I think there are definitely going to be disputes in a number of the battleground areas.
I do think that precisely because the president has made clear that he thinks there will be grounds to dispute the election, the media have special responsibilities this time, more so than in the past, so we don’t have a replay of Bush v. Gore, where networks were calling it one way at one point, and then calling it another way at another point. We can’t afford that this time.
I can’t say there's no reason to be stressed, but according to the most recent polls it doesn't look like it will be such a close election and, if it isn’t, maybe all this will be moot.
