President of the United States. The answer would have been George Bush because the 12th amendment reads,

If no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for President, the House of Representatives shall choose immediately by ballot the President.

Well, George Bush was the only one who got electoral votes and if Bill Clinton had died, then George Bush would have become President, if my reading of this language about the President-elect is the accurate one. General Dellinger disagrees.

The issue has to do, I think, with the significance we attach to what Congress does when it counts and opens the votes. Can Congress on that occasion affect the outcome? The statute governing this allows members of Congress to raise objections, and then provides that the House and Senate must immediately deal with those objections. Of course, it is possible that one of those objections will have material effect, and if that is possible then we don't have a President-elect until all those things are resolved.

So again, to repeat, this is the one period, this time period, where I think there is a serious problem. There is an answer now. The answer comes from the 12th amendment, but I think we all would agree that a Presidential candidate who is clearly repudiated at the polls, as George Bush, I think, was in 1992, it is simply unacceptable that he, under the law as it stands, would become President in the event of, say, Bill Clinton's death.

I will conclude. We are getting late here. I think this one difficulty can be resolved quite simply. Incidentally, Professor Amar, I think you made mistake, if I may. You said, with respect to the times that are fixed, there is only one date that is fixed, January 20. January 3 is fixed. Congress, by the 20th amendment, must be in session at that date, and that had something to do with this Presidential business because it was clearly the intent of the framers of the 20th amendment that it be the new Congress, not the old Congress but the new Congress, that counts the vote, and so forth.

Professor AMAR. But it is not in the words of the 20th amendment.

Professor BERNS. January 3 is.

Professor AMAR. But not that the votes have to be counted on January 3.

Professor BERNS. No, no. That is right. That is by statute, yes. Professor AMAR. Yes, so it doesn't really matter.

Professor BERNS. My suggestion is, and it is in my statement, that a simple statute done under the authority of section 4 of the 20th amendment could be adopted, and it would read something

like this.

Upon the death of the person receiving the greatest number of votes for President, the person receiving the greatest number of votes for Vice President shall become President.

This would preempt the 12th amendment.

Thank you, Senator.

[The prepared statement of Professor Berns follows:]

PREPARED STATEMENT OF WALTER BERNS 1

Much of this statement is taken from the book, Walter Berns (ed.), After the People Vote: A Guide to the Electoral College (American Enterprise Institute Press, 1992, 2nd ed., 1992).

I don't have to persuade the members of this Subcommittee that it is important to have a legally binding rule governing unusual cases of succession to the country's highest offices. We have such rules, rules governing almost every conceivable contingency, and so long as they are followed, this country will not suffer a crisis of succession. The one exception has to do with the death (resignation, disqualification) of a presidential and vice presidential candidate, specifically a death (etc.) that occurs in the period between the meeting of the Electoral College in mid-December and the counting of the electoral vote in Congress on January 6. Fortunately, this contingency can be met by a simple Act of Congress.

DEATH (ETC.) BEFORE NOVEMBER ELECTION

"If a candidate nominated by a political party dies or resigns before the date fixed for the choice of presidential electors *** the national committee of the affected party will meet and choose a new presidential or vice presidential candidate. Article III of the Charter and Bylaws of the Democratic Party and rule 27 of the rules of the Republican Party permit the national committees so to act." (See After the People Vote, pp. 92–93.)

In 1972, e.g., upon the resignation of vice presidential candidate Thomas Eagleton at the end of July, the Democratic National Committee met on August 8 and nominated R. Sargent Shriver as the new candidate.

A more interesting case occurred in 1912 when the Republican candidate for vice president (Vice President James S. Sherman) died October 30, only a few days before the election. The Republican National Committee convened after the election and chose another vice presidential candidate, Nicholas Murray Butler. When the electoral college met in mid-December, the Republican electors cast their ballots for Butler.

DEATH (ETC.) AFTER NOVEMBER ELECTION

If the death or resignation occurs between the November election and mid-December when the electors cast their ballots, "the national committee of the party affected would probably proceed as it would if the candidate died or resigned before the November elections-assuming there was time to convene the committee." (After the People Vote, p. 26.) The only question here has to do with those states where electors are pledged to vote for a named candidate.

At the time of the 1992 election, 19 states and the District of Columbia exacted pledges from their electors to cast their ballots in a particular way, eight of them for a named candidate and the others for the candidates of their parties. Colorado is typical of the "named candidate" states. It requires each elector to "vote for the pair of presidential and vice presidential candidates who received the highest number of votes at the preceding general election." Ohio is typical of the others. It requires electors to cast their votes "for the nominees *** of the political party which certified [them] to the Secretary of State ***" (See Thomas Durbin (ed.), Nomination and Election of the President and Vice President of the United States, 1988 [Congressional Research Service, Library of Congress, for the Committee on Rules and Administration, United States Senate, G.P.O. 1988], p. 316 for Colorado and p. 370 for Ohio.)

None of the eight states requiring electors to vote for a named candidate stipulates a penalty for electors who violate their pledges. Thus, upon the death of the candidate receiving a "the highest number of votes in the preceding general election," a Colorado elector would not be subject to a penalty for casting his vote for the candidate subsequently named by the party committee.

Furthermore, while the Supreme Court in Ray v. Blair (343 U.S. 214) upheld the legality of pledges required by a political party from candidates for the office of presidential elector, it did not directly address the constitutional status of pledges. If that question were to arise, I suspect the Court would hold that electors retain their constitutional status as free agents to vote for whomever they please.

1 John M. Olin University Professor, Georgetown University; Adjunct Scholar, American Enterprise Institute.

DEATH (ETC.) BETWEEN JANUARY 6 AND JANUARY 20

A death or resignation occurring in this period-between the counting of the electoral votes by Congress and the date on which the president and vice president take office would be governed by the Twentieth Amendment of the Constitution. Section 3 of the Amendment reads as follows:

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President *** and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected ***

Thus, if both the president elect and vice president elect were to die during this period, the law enacted by Congress under the authority of this constitutional provision (the Presidential Succession Act, as amended) would take effect. (See U.S. Code, Title 3, chapter 1, section 19.)

DEATH (ETC.) BETWEEN MID-DECEMBER AND JANUARY 6

There is a question concerning the consequences if the death or resignation occurs in this period. Would we have a president elect and a vice president elect before the Congress counts and announces the electoral vote? If so, section 3 of the Twentieth Amendment governs the case, and, if the president elect dies, the "the Vice President elect shall become President."

But it is doubtful that there will be a president and vice presdient elect before the electoral votes are counted and announced by Congress on January 6. Although the electors will have voted and the country will know or will think it knowswhether anyone has received a majority, those votes will be under seal and will not be known officially until they are opened and counted by the Congress.

The statute (3 USC ch. 1, sec. 15) requires the president of the Senate (when opening "the certificates and papers purporting to be certificates of the electoral votes" of each state in turn) to "call for objections, if any." It then specifies the manner of dealing with those objections. Only after they have been dealt with, or only after all the questions concerning the validity of the certificates have been resolved, may the president of the Senate "announce the state of the vote." It follows, therefore, that only then will there be a president elect and a vice president elect. The Twentieth Amendment cannot govern the case of a candidate's death occurring between mid- December and January 6; it can only be governed by the Twelfth Amendment, and this will create problems.

The death or resignation of a candidate during this period would be of political concern only if the candidate had been the choice of a majority of electors, or if no candidate had won a majority. In either case, the choice of a president would devolve upon the House (or, in the choice of a vice president, upon the Senate). This conclusion rests on the following clause of the Twelfth Amendment: "and if no person [living] have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President." Thus, to be concrete, if the Republican, Democratic, and some third-party candidate all win electoral votes, and if the one winning a majority were to die or resign between midDecember and January 6, the House would, on January 6, choose a president from the other two.

Under this interpretation, if Bill Clinton had died during this period (between mid-December and January 6), the House would have been required to choose George Bush as president (he being the only other candidate receiving electoral votes). In this situation, the administration would consist of a Republican president and a Democratic vice president. This would be awkward but probably not intolerable. (After all, the country survived the John Adams-Thomas Jefferson administration.) But are we prepared to tolerate a situation where a person who was clearly rejected by the people (George Bush) nevertheless succeeds to—or, in this case, resumes-the presidency?

To avoid this situation, the Congress might choose to ignore the fact that Bill Clinton had died and (when it counts the votes on January 6) proceed to name him president elect. Then, because "the President elect shall have died," vice president elect Al Gore would, under the Twentieth Amendment, become president. Congress might reason that this outcome is in accordance with the popular will, or at least does not thwart it. The trouble with this scenario is that, when counting the electoral votes on January 6, the President of the Senate is required by statute to "call for objections, if any," and someone is almost certain to object to counting the votes

cast for someone who had died. (This happened in 1872 when three Georgia electors voted for the candidate of the Democratic party, Horace Greeley, even though he had died a week before the meeting of the electoral college. In the event, after an objection by one member of Congress, the votes for Greeley were not counted in the official tally.)

I am suggesting a lack of coherence between the Twelfth Amendment and section 3 of the Twentieth. The Twentieth Amendment deals with the deaths of the president elect and the vice president elect, but, because of the powers of Congress under the statute (3 USC ch. 1, sec. 15; see After the People Vote, pp. 17-19), there may not be a president and vice president elect until Congress resolves all disputes (if any) concerning the regularity of the electoral vote and announces the results. Until then, the death of a presidential and vice presidential candidate would bring the Twelfth Amendment into play, with the results that are not compatible with the purpose of the Twentieth.

Congress could resolve this difficulty by exercising its powers under section 4 of the Twentieth Amendment:

Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

Section 19 of the Presidential Succession Act meets the cases of the more or less simultaneous deaths (etc.) of a president and a vice president (by prescribing that the Speaker or President pro tempore of the Senate, or Secretary of State, Treasury, Defense, etc.—shall act as president). But it does not, nor does any other statute, deal with the case of the death "of any of the persons from whom" the House may choose a president and the Senate a vice president.

This could easily be remedied by a new section (number 21) of the Presidential Succession Act providing that, e.g., upon the death of the person receiving the greatest number of votes for president, the person receiving the greatest number of votes for vice president shall become president. This would preempt the Twelfth Amend

ment.

The same end could be accomplished by amending section 3 of the Twentieth Amendment (which deals with the death [etc.] of "the President elect," and, in such event, provides that the "Vice President elect shall become President"); but the enactment of a statute is easier than the adoption or amendment of a constitutional provision.

Senator SIMON. Since Walter Dellinger is still here, if he doesn't mind joining the panel, we will have to make it very brief, but I would be interested in the reaction of particularly Professor Amar and General Dellinger. I have got to get used to calling you General now. Then, Mr. Chairman, I want to ask you one other question, also, in regard to your statement.

You heard what Professor Berns said. Number one, do you agree with his assessment that we would end up with a George Bush election in that event? The second question is, if that is the case, can we correct that defect statutorily?

Mr. DELLINGER. I believe we would have wound up with a George Bush rejected by the voters being re-sworn in as President had it not been for the 20th amendment. I believe that the 20th amendment takes care of the situation from the day the electors cast their votes forward, though I recognize the strength of Professor Berns' arguments to the contrary, and that the electors following the instructions of their party takes care of the situation from the date the popular election is held until the date the electors cast their votes.

I do have a question for Professor Amar, Mr. Chairman, if I may. Senator SIMON. You may, and then I want to hear Professor Amar's response on this, also.

Mr. DELLINGER. Well, why don't you hear that? That is your choice, sir.

Senator SIMON. Yes.

Professor AMAR. I think that the 20th amendment's legislative history is really quite clear in the intendment that a person becomes President-elect when the electoral votes are cast, and I think General Dellinger is very persuasive on that. The problem is it is not clear from the text of the 20th amendment, and the rest of the Constitution seems to use a different triggering mechanism. It is when the votes are counted, under article II and the 12th amendment, that a person shall then be President.

If I had to decide which is the best interpretation, I think I would stick with General Dellinger's that the clear purpose of the 20th amendment was to displace that. They just didn't do, frankly, a particularly good job of making that crystal clear.

One way to say that to Professor Berns is, just in the colloquy we had before, he thinks the clear intent of the 20th amendment was also that the new Congress, not the lame duck Congress that might have been repudiated at the polls, but the new Congress would be the Congress counting the votes and, in the event of a contingency, deciding on who wins if no one got a majority. The clear intendment, the purpose, of the 20th amendment is not in the language of the 20th amendment, again, and there is nothing in the 20th amendment that would prevent, as I read it, the lame duck Congress from trying to do all this stuff before January 3.

So the 20th amendment is somewhat unhappily drafted in these two key respects. Is it going to be the new Congress or the old Congress? They wanted it be the new, but they didn't say so clearly. When is someone President-elect? I think they clearly meant when the electoral votes are cast. They just didn't say so very clearly.

If I had to decide it, though, as a legal proposition or if I were advising this body in the event that ever occurred, I would side with General Dellinger. But precisely because there really is this great unclarity and someone so distinguished as Professor Berns and many others would disagree, I think we should clear it up now with a clarifying statute.

Professor BERNS. May I say, Senator

Senator SIMON. Yes, Professor Berns.

Professor BERNS. Looking at the legislative history of the 20th amendment, I would agree that one can derive from it the intention at the time to interpret the term "President-elect" as my colleagues on this panel have done. But, you know, it is not in the text. There is this question, and again I repeat to a large extent it turns on what significance we attach to the powers of the Congress when the votes are counted. That statute, to repeat, does say objections can be made, and they have to be settled.

But beyond all that, to reiterate something that Professor Amar just said, it is so simple to get rid of this ambiguity. All you have to do is use the authority of section 4 of the 20th amendment itself, pass a simple statute of the sort that I have mentioned here, and that resolves the difficulty. General Dellinger and I-our disagreement has no significance after that.

Mr. DELLINGER. That is correct.