William and Mary Law Review, Vol. 43, No. 3 (March 2002), pp. 851-926

Abstract

Presidential election controversies are nothing new. They have plagued our republic since 1801, when the fourth election for the office ended in a muddle that nearly deprived the rightful winner of the presidency. Each controversy has led to calls for reform. In every instance, the cryptic and troublesome constitutional text has hampered congressional efforts to correct the problems. Simply stated, the Constitution offers little explicit guidance on when and how Congress can regulate the selection of the President. In this Article, we explore the implications of this textual deficiency, looking both at what Congress has done in the past and at what it might do now. Our analysis proceeds in five steps. Part I of our Article highlights relevant features of the constitutional text. Part II explores how Congress reluctantly but successfully used this text to enact significant reform legislation in response to the Hayes-Tilden election debacle of 1876. Part III identifies some reforms that Congress has under consideration to address the problems that complicated the 2000 presidential vote, focusing on measures that would lead to nationwide use of a uniform ballot and federally approved voting devices and machinery. Part IV then examines whether Congress has the power to enact these measures, concluding (in an analysis that covers six possible sources of authority) that it does. Part V urges Congress to wield this power by enacting significant reform legislation in time for the 2004 election. Our central message is that our federal leaders should learn from the past. Following the election of 1876, Congress was able, in time, to put aside partisan wrangling and constitutional concerns to enact presidential election reforms that have served our nation well for more than a century. The present Congress should take bold action as well. Invoking the powers we identify in this Article, our federal leaders should respond to th essentially technical and mechanical problems that cast a lingering cloud over the 2000 election. In short, Congress should address the visionary legislation the gravest problems that surfaced in the last election to ensure they do not reoccur in the future.

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