How We Select a President in 2024

Today’s presidential election is expected to be one of the closest in living memory. Projections show both Vice President Kamala Harris and former President Donald Trump well within an average polling error of winning the seven major swing states, any combination of which could deliver them the majority of electoral votes needed to secure the presidency. With the outcome hanging on historically narrow margins, election disputes are likely to be especially consequential—and opportunities to manipulate the outcome may well be at an all-time high.

Recent history makes such manipulation a particularly acute concern. In 2020, then-President Trump and his supporters pursued a number of unprecedented strategies to try and push the election results in their preferred direction, culminating in the violent insurrection that took place at the U.S. Capitol on Jan. 6, 2021. And numerous reports suggest that Trump and his allies may be planning to run back much the same playbook this year, with a few new tricks and adjustments. 

The most detailed accounts suggest that their plans begin with a disinformation campaign aimed at undermining public confidence in the election results by alleging various forms of election fraud—an effort that is arguably already underway. On the basis of these allegations, Trump and his allies—many of whom have secured positions on local election boards and other relevant bodies—will then resist the certification of unfavorable election results at both the local and state levels while pursuing related lawsuits, all efforts that are intended to further undermine public confidence in the election results even if they are ultimately unsuccessful. With public confidence in the election undermined, they will once again lobby Republican-led state legislatures to abandon the election results and instead simply appoint presidential electors who support Trump. Failing that, they will push private actors to submit slates of false electors, with the hope that Republican allies in Congress will be able to count those electors’ votes when determining the president-elect. And if this fails, they will at least try to disqualify enough electoral votes that no candidate can secure a majority, kicking the determination of who is the president-elect to a contingent election in the House of Representatives, where Trump is expected to have a solid edge.

Of course, these efforts all failed in 2020, and many of those involved (including Trump himself) are now facing criminal penalties. Moreover, in 2022, a bipartisan majority in Congress enacted the Electoral Count Reform Act (ECRA), a law specifically designed to foreclose many of the strategies that Trump and his allies had pursued two years prior. The question now is whether these reforms will be enough to stop a new wave of these efforts—and whether those seeking to manipulate the election outcome have new strategies that the authors of the ECRA may not have anticipated.

Before the 2020 election, I published a three-part series in Lawfare that outlined the process for selecting a president and identified various ways different types of disputes might arise and be resolved. This article updates this series with a new, detailed overview of how that process now operates after the enactment of the ECRA. I begin with the rules governing the selection of electors by the states, then go on to examine how Congress regulates the casting of electoral votes by the members of the Electoral College and what rules govern how Congress ultimately counts those electoral votes to determine the winner. I then examine two possible outcomes other than the successful selection of a president- and vice president-elect: a contingent election decided by the House of Representatives and a failed election that results in no candidate qualifying to fill the presidency. At each stage, I give specific consideration to the steps Trump and his supporters pursued in 2020 and may pursue again in 2024. I also try to identify new strategies that those hoping to manipulate the outcome of the election might pursue, as well as vulnerabilities that might otherwise compromise the process.

This analysis underscores the exceptionally good job the ECRA does erecting barriers to the types of strategies that Trump and his allies pursued in 2020 and may be planning again in 2024. What vulnerabilities remain within the post-ECRA system are narrow and will likely be difficult to capitalize on. While there is a lingering risk that certain key actors will not comply with the ECRA, this may be an unavoidable aspect of our constitutional system—and something that political conditions will hopefully make unlikely in 2024. That said, there remain threats to the outcome of the election that the ECRA did not address, including the possibility that a party that is unhappy with the apparent outcome but unable to manipulate the results in its favor may decide to derail the process altogether instead of accepting defeat.

States Select Electors

The process for selecting a new president begins with the states, which select the presidential electors who make up the Electoral College and actually vote on who becomes the new president and vice president. Article II of the Constitution establishes that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct,” presidential electors equal in number to the total number of senators and representatives that the state has in Congress. According to the Supreme Court, this language “convey[s] the broadest power of determination” to state legislatures, to the point that “[t]he individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college[.]” In early American elections, several state legislatures used this authority to directly appoint their allotment of presidential electors, among other methods of determination. But for more than a century now, all 50 state legislatures have instead used this authority to allocate their states’ presidential electors on the basis of popular elections.

While the exact process varies across states, each political party that qualifies to field a presidential ticket within a state generally nominates a slate of potential electors in advance of Election Day. Pursuant to state laws and regulations, the state then appoints its electors from these slates depending on the results of the election. Forty-eight states appoint all of their allotted electors from the slate put forward by the party whose presidential ticket wins a plurality of state-wide votes. Two states—Maine and Nebraska—assign one elector to the party whose ticket is the plurality winner in each of the state’s congressional districts and the other two to the party whose ticket wins a plurality statewide. (Earlier this year, Republican state legislators in Nebraska proposed revising this approach and awarding all their electors on the basis of a state-wide vote, in part to aid former President Trump. But no such legislation has been adopted to date.) Under the 23rd Amendment, the District of Columbia also appoints a number of presidential electors equal to what the district would be entitled if it were a state, but no more than the least populous state—a formula that currently amounts to three electors. Congress has legislated that these electors should be awarded to the party of the plurality winner in the city as a whole. The District of Columbia brings the total number of potential electors in the Electoral College to 538 and the minimum number of electors to win the presidency to 270 if every state appoints their full allotment.

Nonetheless, Article II’s assignment of authority to state legislatures continues to be cited as a potential basis for assigning presidential electors on less democratic grounds. In 2020, supporters of then-President Trump unsuccessfully lobbied several state legislatures to do so after Election Day, on the basis of false allegations of electoral fraud. Some reports indicate that former President Trump’s supporters are urging state legislators to prepare to take similar steps this year. But such schemes hinge on the assumption that state legislatures’ authority to appoint presidential electors is uninhibited, even after an election has already taken place. And the case for that conclusion is even weaker now than it was in 2020.

Any effort by a state legislature to replace election results could well run afoul of parts of the federal Constitution outside the Elections Clause. As the Supreme Court held in Bush v. Gore, “[w]hen the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental[.]” This means it becomes subject to other constitutional protections, including equal protection and due process, which may limit state legislatures’ ability to insert their preferences over the electorate’s.

State laws and constitutions may also set limits on state legislatures’ ability to take such actions, as interpreted by state supreme courts. In the past, some observers have argued that the federal Constitution’s vesting of authority over elections expressly in state legislatures actually insulates those state legislatures from these sorts of state law requirements, in what has come to be known as the “independent state legislature” theory. But the U.S. Supreme Court largely rejected this argument in its 2023 holding in Moore v. Harper. In an opinion by Chief Justice John Roberts, the 6-3 majority confirmed that “[t]he Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review[,]” though it retained a role for federal courts in reviewing whether state courts had “transgress[ed] the ordinary bounds of judicial review” in a manner that “arrogate[s] to themselves the power vested in state legislatures to regulate federal elections.”

Congress also hedged against this possibility in the ECRA. While the conduct of presidential elections is primarily governed by state law, Article II of the Constitution still gives Congress the authority to “determine the Time of chusing the Electors, and the Day on which they shall give their Votes[.]” Congress has in turn used this authority to establish by statute that electors “shall be appointed, in each State, on election day”—statutorily defined as the “Tuesday next after the first Monday in November” of every fourth year, which falls on Nov. 5 this year—“in accordance with the laws of the State enacted prior to election day” (emphasis added). This effectively bars state legislatures from enacting new legislation to reallocate electors after Election Day takes place, though legislative provisions assigning electors on a basis other than elections enacted prior to Election Day would still be valid. As discussed below, the ECRA reiterates this requirement in several other statutory provisions as well. 

The ECRA also installed a provision allowing “a State that appoints electors by popular vote” to “modif[y] the period of voting, as necessitated by force majeure events that are extraordinary and catastrophic, as provided under laws of the State enacted prior to such day[.]” This allows states to push back Election Day in the event of an emergency (such as a natural disaster), provided that the state assigns electors on the basis of a popular vote and only if the state laws authorizing the shift are enacted prior to the original election day. This replaced an earlier (since repealed) provision that tried to account for such emergencies but that many feared would instead open the door to the possible manipulation of election results by state legislatures.

Together, these provisions are designed to foreclose one of the main strategies that supporters of former President Trump used to try to turn the election results in his favor in 2020: having state legislatures directly appoint electors in lieu of the election results. For this to occur consistent with the ECRA, state legislatures would, at a minimum, have had to enact legislation allowing for such a step prior to Election Day. To the author’s knowledge, only one state has: North Carolina, which in 2001, following the controversy over Florida’s vote count that was ultimately resolved in Bush v. Gore, preauthorized its General Assembly—and, failing that, its governor—to appoint the state’s allotment of presidential electors if election results are disputed past a certain point. Even then, any exercise of this authority would have to surmount possible federal and state constitutional barriers. And there is also a question as to whether this provision is consistent with the ECRA’s own emergency provision, which allows for such delayed appointments only in circumstances of force majeure where the outcome is to be determined by popular vote—conditions not met here.

The only remaining possibility is that a state legislature could assert that it has the exclusive constitutional authority to select electors, in a manner that Congress cannot regulate through statutes like the ECRA that implement its own election-related constitutional authorities. For this argument to be vindicated, however, a state legislature would not have to act, but its theory would have to be vindicated in federal court. This seems unlikely. While this exact issue wasn’t squarely addressed in Moore v. Harper, the Supreme Court’s skepticism of broad forms of independent state legislature theory suggests that such an argument is unlikely to carry the day. Further, as discussed below, the ECRA provides expedited procedures by which these sorts of critical questions of federal law can be adjudicated all the way up to the Supreme Court before any counting of electoral votes is supposed to take place. In this sense, the ECRA does everything Congress constitutionally can do to shut the door on a state legislature substituting its own judgment for that of the voters, up to and including setting up procedures to resolve any relevant constitutional claims in a timely manner. 

The Electoral College Votes

Once Election Day is over, it is up to state authorities to determine who has won and to appoint electors accordingly, in line with their state laws. Their timeline for doing so, however, is subject to parameters established by Congress, pursuant to both its constitutional authority to “determine the Time of chusing the Electors” and the constitutional role it plays in counting electoral votes. For well over a century, the 1887 Electoral Count Act set forth a convoluted regime that sought to encourage states to appoint their electors in a timely manner, in part by establishing a safe harbor in which electors’ votes would be treated as conclusive by Congress when counting electoral votes. But in 2020, experts became concerned that ambiguities in this long-standing process opened the door to possible election manipulation. For this reason, the 2022 ECRA largely did away with this statutory regime and replaced it with something decidedly more streamlined.

Today, federal law provides that electors “shall meet and give their votes on the first Tuesday after the second Wednesday in December next following their appointment at such place in each State in accordance with the laws of the State enacted prior to election day.” In 2024, this falls on Dec. 17. The executive of each state—identified as the governor (or, in the District of Columbia, the mayor) unless otherwise defined in relevant state law—is in turn required to “issue a certificate of ascertainment of appointment of electors” no later than six days prior to this date, meaning Dec. 11 this year, pursuant to state laws “enacted prior to election day.” One copy of this certificate is in turn transmitted to the archivist of the United States—who is obligated to preserve the original, retain a copy in the public records, and make the original open to public inspection—while six are given to the selected electors. 

Following the ECRA, federal law provides that this certification “shall be treated as conclusive in Congress with respect to the determination of electors appointed by the State” when it later counts electoral votes. The only exception is where any certificate of ascertainment is “required to be issued or revised by any State or Federal judicial relief granted prior to the date of the meeting of electors[,]” meaning Dec. 17 this year, in which case this court-mandated certification “shall replace and supersede any other certificates submitted” and be treated as “conclusive” instead. Under the ECRA, only electoral votes from electors whose appointment is supported by a conclusive certification are to be counted by Congress when determining the new president and vice president. Hence, if a state fails to resolve disputes over its election by the date electors are supposed to vote and thus cannot issue any “conclusive” certification, it risks effectively losing its electoral votes altogether. This creates a strong incentive for state executives and other relevant state officials to make their determination regarding the proper electors for their state by Dec. 11, and for state and federal courts to resolve any related legal disputes prior to when the electors actually cast their votes on Dec. 17. 

The main mechanisms for resolving election disputes are the diverse legal procedures that different states have for resolving state law disputes relating to the ascertainment of electors, which can range from administrative proceedings to litigation in state court. Where local election officials refuse to certify results or there are allegations of election fraud, the resulting disputes are most likely to be channeled through these sorts of proceedings (and, in certain circumstances, into federal court). Candidates and other interested parties will be free to pursue such claims by all available avenues through Dec. 11, at which point the state executive will have to make a determination as to which electors should be appointed. This determination will then still be subject to a final period of potential federal and state litigation, as either type of court can mandate that the certificate of ascertainment be changed up to the Dec. 17 counting of electoral votes. This prevents the state executive from trying to avoid legal challenges by not making the formal appointment until just before the electoral votes are cast.

The ECRA also installed expedited procedures for any federal litigation that presidential or vice presidential candidates might pursue over questions of federal law relating to the issuance and transmission of the certification in a given state, including constitutional claims and competing assertions of constitutional authority. Candidates may pursue litigation over these issues in the federal district court where the relevant state has its capital. A three-judge panel—convened in line with existing procedures, but consisting of two appellate judges and one district court judge—is then tasked with “advanc[ing] on the docket and … expedit[ing] to the greatest possible extent the disposition of the action[.]” Its resolution can then be appealed directly to the Supreme Court, which may take up the matter “on an expedited basis, so that a final order of the court on remand of the Supreme Court may occur on or before the day before the time fixed for the meeting of electors.” This is in addition to any other federal causes of action the candidate may have available to them. 

On the appointed day (this year Dec. 17), the duly appointed electors are tasked with gathering at a location in their state specified by relevant state laws and casting their votes for president and vice president “in the manner directed by the Constitution.” The 12th Amendment in turn directs electors to “vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves”—a requirement that prevents a presidential ticket from having two candidates from the same state. In most cases, the fact that electors are selected from the political party of the winning presidential ticket is enough to assure that they will vote for the intended candidates. Most states also have laws in place that require electors to pledge to vote for the candidate of the party they are representing, while punishing or replacing electors who fail to do so—measures the Supreme Court has repeatedly upheld as constitutional. That said, some “faithless electors” may still be able and willing to cast votes for candidates other than the ones voted on by their respective states, introducing a slight element of unpredictability into the results.

Once the voting is complete, the 12th Amendment directs the electors in each state to record their votes in a specific fashion and transmit them “to the seat of government … directed to the President of the Senate[.]” Post-ECRA federal law goes further and requires that each group of electors make out six certificates recording their votes, each of which contains a copy of the certificate of ascertainment provided to them by their state executive, then securely seal these packets and certify that the votes for president and vice president are contained therein. These copies are then to be sent “by the most expeditious method available” to several relevant officials: one copy to the president of the U.S. Senate (i.e., the vice president); two copies to their state’s chief election officer, which must retain one copy and make the other open to public inspection; two copies to the archivist of the United States, who maintains one copy subject to an order from the president of the Senate while inserting the other into the public record and making it available for public inspection; and a sixth copy to the federal judge of the district in which the electors assembled. If the archivist or president of the Senate does not receive their copies by the fourth Wednesday in December (this year Dec. 25), federal law directs them to call upon the relevant state’s chief election official and the appropriate federal district court judge to provide the copies they should have received separately.

These procedures hedge against another type of scheme that supporters of former President Trump deployed in 2020: the appointment of alternate panels of electors, who submitted false electoral votes to Congress and other relevant recipients, in the hopes that Trump’s allies in Congress would accept them as valid in place of the votes cast by the official electors. By only treating a timely certification issued by a state executive as conclusive—and only replacing this certification if required by a state or federal court—the ECRA effectively renders any alternate slates of electors moot. 

That said, this arrangement is premised on the sanction that votes issued by electors whose authority is not backed up by a conclusive certificate of ascertainment will be disregarded. And the ECRA’s ability to guarantee this outcome is in turn contingent on Congress’s constitutional authority to set the parameters for the next step in the process: how Congress goes about counting the electoral votes.

Congress Counts the Electoral Votes

Once the electors in each state cast their votes and transmit them to the relevant parties, their role in the process is largely done. At this point, Congress steps in to count the electoral votes and finalize the election results. This is the process that was notoriously disrupted by a violent insurrection on Jan. 6, 2021, after then-Vice President Mike Pence made clear that he would not discard valid electoral votes nor substitute in the votes of alternate unofficial electors, as former President Trump and his supporters had called on him to do. Perhaps unsurprisingly, this process—and the possibility of such subversion—was also the main focus of the reforms installed by Congress through the ECRA.

The Constitution is somewhat vague on how precisely electoral votes should be counted. The 12th Amendment states simply that “[t]he President of the Senate[,]” a role generally filled by vice president, “shall, in the presence of the Senate and House of Representatives, open all the certificates” received from states’ electors “and the votes shall then be counted[.]” (Notably, however, the vice president has sometimes allowed this role to be played by the Senate’s president pro tempore—currently Sen. Patty Murray (D. Wash.). That may be what happens this year, as Vice President Kamala Harris is one of the two leading candidates for the presidency.) The passive voice of this final directive leaves open the question as to who, precisely, does the counting on behalf of the federal government—and, perhaps more importantly, who gets to decide which votes get counted and which do not. Since the time of the Framers, Congress has taken this responsibility unto itself under its authority to, among other things, “make all Laws which shall be necessary and proper for carrying into Execution” the rest of the Constitution. This has long included statutory measures relating to the counting of electoral votes like the ECRA.

Before discussing Congress’s role in this procedure, however, some thought must be given to Congress’s own composition. After all, every member of the House and about a third of the Senate are also up for election in 2024. Any major election dispute that impacts the presidency may also impact congressional elections, as the votes for each are generally cast on the same sets of ballots. Moreover, the 20th Amendment ends the terms of outgoing members of Congress at noon on Jan. 3 and requires that the new Congress convene an hour later, unless Congress enacts a different date and time by statute—meaning it is the newly seated Congress that counts electoral votes on Jan. 6, not the outgoing one that was in place at the time of the election (as was the case prior to the 20th Amendment). Moreover, as Article I of the Constitution makes each chamber of Congress “the Judge of the Elections, Returns and Qualifications of its own Members[,]” it is also up to the newly seated House and Senate to resolve any outstanding disputes regarding their own membership. The general process each uses for doing so is much the same as it was in 2020. But it can be lengthy to execute, leading to months of uncertainty as to who actually represents different states in Congress. This introduces an additional twist of unpredictability in the presidential selection process, as outcomes contingent on congressional action may in turn hinge on preliminary election results or vacancies in certain key congressional seats.

The newly seated House has another major responsibility as well: As one of its first acts, it is supposed to elect a new speaker on the basis of a majority vote, just days prior to the counting of electoral votes. As the internal power struggle within the Republican House caucus over the speaker position last year demonstrated, selecting a speaker can be a difficult and contentious process, especially when the majority party only has the narrowest possible control of the chamber, meaning electing a speaker requires near unanimity among that caucus’s members. It is not hard to imagine this process once again taking several days, which may in turn complicate (but will not necessarily prevent) the House’s participation in the counting of electoral votes.

Whatever shape Congress is in, federal law mandates that it “shall be in session on the sixth day of January succeeding every meeting of the electors” and that “[t]he Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o'clock in the afternoon on that day,” with “the President of the Senate” as “their presiding officer.” This use of a joint session of Congress is intended to satisfy the 12th Amendment’s requirement that the electoral votes be counted “in the presence of the Senate and the House of Representatives[.]” What threshold of attendance is required is unclear, both constitutionally and statutorily. But Article I of the Constitution establishes that “a Majority of each [chamber of Congress] shall constitute a Quorum to do Business,” a requirement that may well apply in the context of counting electoral votes as well. At a minimum, this is almost certainly sufficient to satisfy the relevant constitutional and statutory requirements.

The House and Senate generally enter into this joint session through the passage of a concurrent resolution approved by a majority in both chambers. In recent years (including 2021), this concurrent resolution has reiterated federal statutory requirements relating to the counting of electoral votes and even incorporated those laws by reference. Such language is important, as it helps to address a long-standing criticism of the various statutory provisions relating to the counting of electoral votes, including those installed by the 2022 ECRA: that such statutes cannot constitutionally bind the House and Senate, as Article I of the Constitution empowers each chamber to “determine the rules of its proceedings[,]” including in the joint session to count electoral votes. By incorporating existing statutory rules into the concurrent resolution initiating the joint session, the two chambers of Congress effectively adopt those rules as part of their own rules of procedure under their own rule-making authority, rendering irrelevant the question of whether statutes like the ECRA can legally bind them.

These rules in turn severely constrain the structure and procedures of the joint session so as to keep it narrowly focused on finalizing the results of the presidential election. Indeed, they require that the joint session finalize counting the electoral votes before dissolving and only allow for brief recesses so that the individual chambers can consider substantive questions—and, even then, only if less than five days have passed since the original joint session convened, at which point recesses are barred altogether. 

The most important provisions installed by the ECRA are new procedures and guidelines for counting the electoral votes. These replaced provisions of the 1887 Electoral Count Act that were widely seen as a source of ambiguity and uncertainty in 2020. Federal law now directs that the presiding officers of the House and Senate to each appoint two tellers, who join the president of the Senate in counting the electoral votes. Acting in alphabetical order by state, the president of the Senate opens “the certificates and papers purporting to be certificates of the votes of electors appointed pursuant to a certificate of ascertainment of appointment of electors” issued by state executives (or at the direction of a court order) as discussed above, reads the contents, and then hands the documentation to the tellers who do the same. The tellers then count the votes and maintain a tally. “[O]nly the votes of electors who have been appointed under a certificate of ascertainment of appointment of electors” (or those “who have legally been appointed to fill a vacancy of any such elector,” pursuant to state laws) are to be counted. No such vote is to be rejected so long as it was “regularly given[.]”

By design, this process creates a strong bias toward only counting the electoral votes of whichever electors have certificates of ascertainment approved by state executives (or pursuant to court orders where the former are superseded). As discussed above, such certificates are valid only if finalized prior to Dec. 11 (or Dec. 17 in the case of certifications that federal or state courts require to be issued or changed). In this sense, the whole system reinforces whatever the conclusive outcome is from state procedures and election-related litigation in federal and state courts. Moreover, as duplicate official copies of the certificates of ascertainment and related electoral votes are also sent to the archivist of the United States and state election officials—who are required to make them publicly available—there will be ample evidence if, somehow, those involved in counting electoral votes try to depart from this formula.

Nonetheless, the rules installed by the ECRA do still provide a limited process for objecting to the counting of certain electoral votes and resolving other procedural questions that might arise along the way. The president of the Senate is required to call for questions or objections after the reading of the various submissions for each state. Both questions and objections must then be made in writing, without supplemental argument and with the support of at least one-fifth of the members “duly chosen and sworn” of each the House and the Senate. While questions may address any range of procedural matters, the only valid grounds for an objection to counting a given electoral vote are that the electors presented for a given state “were not lawfully certified under a certificate of ascertainment” or that the vote itself was not “regularly given.” Once all of the valid questions and objections for a given state are made, the House and Senate are required to withdraw and debate them separately, pursuant to a tight statutorily defined timeline of no more than two hours. At the end of this period, each chamber votes and only those questions or objections sustained by a majority of both chambers stand.

Notably, what it means for an elector’s vote to be “regularly given” is not defined in statute. The language itself predates the ECRA, which presumably left it in place with the intent that it be interpreted in line with past practice. Legal scholars have argued that this term should be interpreted narrowly to mean that an elector has voted in a manner inconsistent with the law, such as for a constitutionally ineligible candidate, at a time inconsistent with that set by Congress, or as a result of bribery. That said, members of Congress from both parties have (unsuccessfully) pursued “regularly given” objections on the basis of a much broader range of objections in the past, including unsubstantiated doubts about the validity of the underlying election—a pattern that may continue under the new ECRA, though only if such members of Congress can get a fifth of their colleagues in both chambers to support such an effort.

Of course, even under a narrow definition, electoral votes cast in support of former President Trump in 2024 may face objections that they were not regularly given on one set of familiar (if quite controversial) grounds: that his participation in the Jan. 6 insurrection makes him ineligible to hold office under Section 3 of the 14th Amendment. While the Supreme Court refused to let a state use such legal grounds to keep Trump off the ballot in its Trump v. Anderson decision earlier this year, ambiguities in the per curiam opinion and paired concurrences leave it unclear whether the Court also precluded congressional disqualification as part of the process of counting electoral votes. Such an objection may even stand a chance of getting the requisite one-fifth support in both chambers to be made, if backed by a substantial number of Democrats in both chambers. That said, it’s far less clear that any such measure will receive the majority votes necessary to be upheld by a majority of both chambers in a manner that changes the election outcome. And even if it does, any decision Congress makes may well be challenged in federal court, potentially all the way back to the Supreme Court. 

The 12th Amendment states that “[t]he person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed[.]” But it does not clarify what should happen if a state doesn’t successfully appoint electors on the timeline set by Congress or if those electors’ votes are disqualified. In the past, Congress has been inconsistent as to whether the missing or disqualified electors still count toward the total used to determine the majority a candidate must reach to win the presidency or vice presidency, or whether they should be removed from that total. The ECRA resolved this question by requiring that “the total number of electors appointed for the purpose of determining a majority of the whole number of electors appointed as required by the Twelfth Amendment to the Constitution shall be reduced by the number of electors whom the State has failed to appoint or as to whom [an] objection was sustained” that the electors had not been appointed by a conclusive certificate of ascertainment. This rule does not apply, however, if an elector’s vote is successfully objected to on the grounds that it was not “regularly given[.]” This might be read to imply that any such electors remain part of the total number used to calculate a majority for 12th Amendment purposes. Alternatively, the lack of an established statutory default rule may simply leave the question up to Congress to resolve at the joint session through established procedures, if and when it arises.

Throughout these proceedings, the president of the Senate (usually the vice president) is statutorily empowered to “preserve order[,]” which federal law also leaves undefined. In the past, similarly open-ended statutory language was cited alongside the vice president’s constitutional role in counting electoral votes as evidence in support of the proposition—advanced unsuccessfully by former President Trump’s supporters in 2020—that the president of the Senate has the sole discretion to decide which electoral votes to count. To nip such arguments in the bud, provisions introduced by the ECRA confirm that the president of the Senate’s role “shall be limited to performing solely ministerial duties” and includes “no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper certificate of ascertainment of appointment of electors, the validity of electors, or the votes of electors.” Of course, if one believes that the Constitution gives the president of the Senate more authority than this, then these sorts of restrictive statutory provisions are likely to be seen as unconstitutional. At a minimum, however, this language confirms that, in this statutory context, “preserve order” is best understood as the authority to chair the joint session and rule on the sorts of procedural matters that such a role usually entails, not to make the sort of substantive determinations the ECRA expressly puts beyond the president of the Senate’s reach. 

Once all the received certificates are opened and read for all of the states (and the District of Columbia), the tellers report the results to the vice president, who reads them to the assembled body and has them entered into the journals of both chambers, formally establishing who is the new president- and vice president-elect. This in turn satisfies the 12th Amendment’s requirement that the incumbent Vice President “open all the certificates” and that “the votes … be counted” in the “presence of the Senate and House of Representatives,” bringing the presidential selection process to its constitutional conclusion.

By design, the ECRA structures the counting of electoral votes in a manner that severely limits opportunities for manipulation. Each state has only one conclusive slate of electors and only the votes cast by that slate are to be counted, making alternate slates of false electors a moot exercise if they are not backed up by a state executive or state or federal court ruling. Nor is it easy to try and disqualify electors or their votes, as even motioning to do so requires the support of a fifth of each chamber and can be on only one of two possible grounds (and requires a majority of both chambers to implement). Only disqualification of an electoral vote on the grounds that it was not “regularly given” is arguably open-ended in this regard, and only if one ignores both past practice and the apparent intent of Congress in enacting the ECRA. In short, within the confines of the ECRA, there appear to be relatively few avenues by which one can readily manipulate the outcome.

But Congress could try to operate outside the ECRA. A majority of both chambers might be unwilling to reiterate or incorporate the ECRA’s rules into the concurrent resolution initiating the joint session to count electoral votes, creating uncertainty as to whether those rules apply and opening the door for members to act contrary to them. Alternatively, the House and Senate might choose to adopt different rules and procedures that depart from the ECRA. Or they may agree to take measures contrary to the ECRA—for example, by accepting electoral votes not backed by a conclusive certificate of ascertainment or disqualifying electoral votes on grounds other than the two recognized by the ECRA.

Any of these moves would likely tee up the legal question whether the ECRA can in fact bind future congresses for judicial resolution. Given that the Constitution assigns each chamber the authority to “determine the Rules of its Proceedings[,]” language the Supreme Court has interpreted as giving the House and Senate broad latitude in conducting their own internal affairs, there is a good argument that statutes like the ECRA cannot, in fact, bind those chambers in how they conduct their proceedings. For this reason, those provisions of the ECRA that relate to procedures during the joint session and in each chamber of Congress are perhaps best understood as a joint exercise of both chambers’ rulemaking authority, meaning they establish default rules that can be superseded by either chamber pursuant to their own rulemaking authority. (Instead, however, the newly seated House and Senate generally reiterate those rules by incorporating the relevant rules into the concurrent resolution they adopt to initiate the joint session to count electoral votes, as discussed above.) 

For its part, the Supreme Court has often left it up to Congress to enforce its own procedural rules—an approach that, in this case, would likely leave both the House and Senate free to enact alternate rules that depart from the ECRA’s statutory requirements under their own rulemaking authority, if they so pleased. That said, doing so at the joint session would require majority support in both chambers. At a minimum, this seems unlikely this year, as control of both chambers is likely to be by slim margins and many of the sponsors and supporters of the ECRA from both political parties are likely to still be in Congress. 

Alternatively, other actors within Congress might seek to act contrary to the ECRA without adopting alternate rules. The clearest possibility is the president of the Senate, who might embrace questionable legal theories asserting that they have the sole constitutional authority to decide on the validity of electoral votes, in spite of the ECRA or other legislation—a position that was urged on then-Vice President Mike Pence in 2020 and that certain supporters of former President Trump continue to advance. This seems exceptionally unlikely this year, given Vice President Kamala Harris’s past criticism of such strategies, but other presidents of the Senate may be less restrained in the future. Regardless, any actions by the president of the Senate along these lines are likely to be challenged, first through Congress’s own procedural process—most likely that for “questions” during the joint session under the ECRA—and then potentially in federal court. But the president of the Senate may nonetheless declare the counting of electoral votes concluded before one or both procedures come to their conclusion, and thereby identify a purported president- and vice president-elect.

As they hinge on unsupported assertions of superseding constitutional authority, such actions are not something that Congress can readily legislate around. That said, at least in 2024, such manipulations can go only so far. For a president-elect to become the effective president on Jan. 20, being declared as such by the president of the Senate or even Congress is not itself enough. Instead, the executive branch that is supposed to follow the president’s direction has to view that outcome as legal and legitimate as well. The responsibility for making this legal assessment on the part of the executive branch is likely to fall to Attorney General Merrick Garland and his subordinates in the Office of Legal Counsel, who—unlike the president and vice president—remain in office past Jan. 20, unless and until they resign or are removed. (Or, if these individuals have resigned, then this role will be filled by whatever Justice Department officials are acting in these capacities.) Their resulting legal determination, which is generally understood to be binding on the executive branch, will likely determine who, if anyone, the executive branch accepts and follows as president, unless and until their views are superseded by a judicial ruling. In this sense, attempts by a president of the Senate to effectively appoint an alternate president-elect—at least those without the support of the incumbent administration or the federal courts—may prove to be of more symbolic than substantive importance.

For all these reasons, the types of electoral manipulations that former President Trump and his supporters attempted in 2020 are unlikely to be successful in 2024. The ECRA goes about as far as Congress can go in foreclosing these sorts of manipulations. And while there may be constitutional limits on Congress’s ability to do so, the political conditions for testing them seem unlikely to emerge in regard to this year’s election. 

That said, the ECRA goes only so far as to govern the process for counting electoral votes. And there are at least two scenarios with a direct bearing on the selection of a president that might arise outside of this process: a contingent election, and a failed one.

Contingent Elections

Even if the electoral votes are counted without controversy, there is no guarantee that any one candidate will secure the “majority of the whole number of Electors appointed” constitutionally required to become president- (or vice president-) elect. The Framers accounted for this possibility in the Constitution—and then amended the process for resolving such a scenario a few years later, after their first encounter with this sort of “contingent election” proved less than satisfactory. More recently, there have been concerns that one party may try to trigger a contingent election by preventing any candidate from securing a majority of electoral votes, on the belief that a contingent election is more likely to result in their preferred candidate being elected. Congress chose not to address the rules governing this process when it enacted the ECRA. Instead, it sought to address these concerns by making it far less likely that a contingent election will ever take place. 

Contingent elections have occurred only a handful of times in American history. In 1800, a tie in the Electoral College between Aaron Burr and Thomas Jefferson threw the presidential contest into the House of Representatives, pursuant to a process laid out in the original text of the Constitution. In 1804, following the Burr-Jefferson contest, this process was changed through the 12th Amendment. The revised process has been used only twice since—to elect a president in 1825 and a vice president in 1837—leaving few useful precedents for how such proceedings should operate.

The 12th Amendment states that, if no candidate receives the majority of electoral votes needed to be president, then the House “shall choose immediately, by ballot, the President” from among the three candidates who received the most electoral votes. This echoes the original language in Article II of the Constitution—superseded by the 12th Amendment—which required that the House “immediately chuse by Ballot one of [the candidates] for President” among those who received the most electoral votes. The House seems to have adhered to a literal interpretation of these requirements in both 1801 and 1825: It entered deliberations directly from the joint session for counting electoral votes without considering other business, and used written paper ballots submitted in secret. 

Members of the House do not each submit their own votes, however. The 12th Amendment indicates that members’ votes are to “be taken by states, the representation from each state having one vote[,]” with each state delegation receiving a single vote. Both in 1801 and 1825, the House executed this unorthodox process through a two-tier voting system, through which each state delegation decided its vote internally on a majority basis and then cast a unified second ballot on that basis as a delegation. The 12th Amendment only requires that at least one member from two-thirds of the states be present to establish a quorum for this process, but demands that a candidate receive the support of a majority of all states in order to be elected president. The District of Columbia has no vote and plays no part in this process, despite having been granted electoral votes by the 23rd Amendment.

While the House resolves any tie among presidential candidates, a tie between vice presidential candidates goes to the Senate. The Senate has used this process only once, in 1837. During that contest, the Senate entered into the process directly from the joint session for counting electoral votes, even though the 12th Amendment doesn’t require that this process be started “immediately.” Unlike their House counterparts, senators are free to vote individually, with two-thirds necessary for quorum but support from a majority of all senators necessary to become the new vice president. 

No statute governs how contingent elections should be handled. In 1825, the House managed its proceedings by forming a special select committee composed of a representative from each state that settled on the applicable rules, including meeting in closed session and requiring that motions be made and seconded by state delegations, not individual members. By contrast, the 1837 proceedings in the Senate appear to have been conducted by the conventional rules applying to proceedings in that chamber; the matter of who became vice president was ultimately resolved in short order by voice vote. Today’s House and Senate would presumably not be bound by these precedents if a contingent election were to arise today, but instead would be similarly empowered to select their own rules.

If somehow the 2024 election does come down to a contingent election, most believe it would favor former President Trump. Even if they lose control of the House, Republicans are expected to maintain the majority control of a majority of state delegations necessary to determine the president. Republicans are also currently projected to have a majority in the Senate, which would allow them to select the vice president. That said, the results of 2024 congressional elections may well depart from these projections and change the calculus as to who would most likely win. So could even a small number of defectors who decline to vote the party line, given the narrow margins by which any party is likely to control either chamber.

For its part, the ECRA did not address how to handle contingent elections. But it did clarify what a “majority of the whole number of Electors appointed” means in practice by expressly providing that “the total number of electors appointed for the purpose of determining a majority of the whole number of electors appointed as required by the 12th Amendment to the Constitution shall be reduced by the number of electors whom the State has failed to appoint or as to whom [an] objection was sustained[.]” As a result, even if some controversy prevents a state’s electors from being finalized by the statutory deadline—or Congress votes to disqualify electors on similar grounds—this doesn’t make it any harder for a candidate to win. Instead, a candidate need only win a majority of the remaining electors to become president. In a two-candidate race (as in 2024) where all the electors who cast votes have those votes counted, this means a contingent election will only come about in the unlikely scenario where there is a perfect tie among the candidates. 

Of course, this does not make contingent elections impossible. A majority in both chambers of Congress might still be able to supersede the rules established by the ECRA and reopen the door to maneuvers that prevent any candidate from securing a majority of electoral votes. Or Congress might conclude both that a number of electoral votes were not “regularly given,” reducing the total number of electoral votes available and making it more likely no candidate will be able to secure a majority. In a future election, a credible third-party candidate could similarly make contingent elections a much more likely phenomenon. Yet these remaining avenues to a contingent election are undoubtedly far narrower and less susceptible to manipulation than those that existed in 2020 and before. In this sense, throwing the 2024 election to the House to decide—a possibility that Trump is still reportedly exploring—is likely to be massively more difficult than it has been in the past.

Failed Elections

The formal procedure for selecting a new president (and vice president) laid out in the Constitution and related statutes more or less comes to an end with a contingent election. But no account of how the United States selects a president would be complete without discussing one final possibility: that it simply fails altogether. 

There are myriad ways that the process for selecting a president could become derailed and fail to yield a president- or vice president-elect by the constitutionally mandated end of the incumbents’ terms at noon on Jan. 20, 2025. One possibility is that a contingent election could still be deadlocked, with no candidate able to capture a majority of state delegations in the House. Another is that a majority of either the House or Senate could simply refuse to participate in the joint session to count electoral votes altogether, denying quorum and thereby raising constitutional doubt as to whether the counting of electoral votes took place “in the presence of the Senate and House of Representatives” as constitutionally required. Of course, there are counterarguments some might deploy in the latter scenario: that counting electoral votes “in the presence of the Senate and House of Representatives” does not actually require a quorum, for example, or that the ECRA’s statutory directive that “Congress shall be in session” on Jan. 6 is itself adequate to establish a presumptive quorum. Both the House and Senate also have procedures for compelling absent members to attend that they would no doubt deploy. But pursuing any of these avenues—or the litigation they may yield—could well take time, leaving it unclear who should enter the White House when the incumbents’ terms end about two weeks later.

The 20th Amendment provides only a partial answer. “If a President shall not have been chosen before the time fixed for the beginning of a new term ... ,” it states, “the Vice President elect shall act as President until a President shall have qualified.” After all, even if the House is deadlocked in a contingent election, the Senate may have had more luck selecting a new vice president. If no vice president has been selected either, then the 20th Amendment allows that “Congress may by law provide” an appropriate remedy for selecting an acting president, who will fill that role until a president or vice president is qualified. Notably, this mostly (but not entirely) parallels the language on succession in Article II of the Constitution, which says that “Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President[,]” but does not specifically authorize Congress to address vacancies arising from a failed or stalled electoral process. (The 20th Amendment also allows Congress to enact legislation addressing what happens if a candidate for president or vice president dies before a contingent election.)

Congress appears to have used the authority provided by the 20th Amendment when it enacted the Presidential Succession Act of 1947. That act expressly covers situations where “there is neither a President nor Vice President” by reason of “failure to qualify[,]” language that seems intended to cover a scenario where the counting of electoral votes or contingent election process is inconclusive when the offices of president and vice president become vacant.

Under the act, the first contingency in such circumstances would be for the newly elected speaker of the House to become president as soon as he or she resigns from Congress. If there is no speaker, then the presidency passes to the president pro tempore of the Senate, an elected position traditionally given to the most senior senator of the majority party, on the same conditions. If either is constitutionally ineligible to serve as president—if they are not a natural-born U.S. citizen, for example, or under 35 years old—or refused to resign from their current position, succession goes to the next in line. In either case, the individual appointed serves as acting president until a qualified and competent president or vice president emerges—or, if that never happens, until the end of the current presidential term.

If neither the speaker of the House nor the president pro tempore is available and qualified, then the act turns to another set of officials: the cabinet, or at least those members who have been “appointed, by and with the advice and consent of the Senate,” prior to the vacancy. (This provision leaves it unclear whether cabinet officials who received senate advice and consent for another position and are serving on the cabinet in an acting capacity—a common phenomenon in the prior Trump administration—are eligible.) In this case, this would be the incumbent cabinet of the Biden administration, as cabinet officials’ terms in office do not automatically end with the term of the president who appointed them.

The Presidential Succession Act establishes a sequence in which these officials will fill the presidency if available and qualified, based on seniority: The secretary of state is first, then the secretary of the treasury, secretary of defense, and attorney general, followed by the remainder of the cabinet until the most recent addition, the secretary of homeland security. Whoever ultimately takes on the role of acting president automatically resigns from their cabinet role as soon as they take the requisite oath of office. If a speaker of the House or president pro tempore of the Senate becomes qualified and eligible during the cabinet member’s time as acting president, then they will supplant the cabinet official in question as chief executive. So will a president or vice president, if one later comes to be qualified by a completed contingent election or counting of electoral votes (or a subsequent election).

There are circumstances in which this line of succession might create some perverse incentives, particularly if a sufficient bloc in Congress prefers those in the line of succession over whoever is likely to win an election. The House, for example, selects its speaker by majority vote shortly before Congress counts the electoral votes—and while the speaker has always been a member of the House in the past, it can technically be anyone the House chooses. This means that, in theory, a simple majority of the House could effectively select the acting president by electing a speaker of their choice and then refusing to participate in the process of counting electoral votes, preventing the presidential selection process set out by the 12th Amendment from reaching its conclusion. This would result in their newly elected speaker becoming acting president under the act on Jan. 20, at least until a president or vice president were qualified or some other institution (like the federal courts) stepped in and compelled a different outcome.

Nor is this the only way the House might manipulate the line of succession in its preferred direction. To be eligible to stand in the line of succession, the act requires that cabinet officials “not [be] under impeachment by the House of Representatives at the time the powers and duties of the office of President devolve upon them.” As impeachment only requires a simple House majority and carries across congresses, this may provide a mechanism by which a House majority in the lame duck 118th or early 119th congresses can disqualify incumbent cabinet officials from serving as acting president if the act were to be invoked.

Aspects of the Presidential Succession Act have also been the subject of constitutional doubt. Legal scholars have argued that the Constitution restricts the presidency to members of the executive branch. Specifically, they contend that Article II states that Congress may only “declar[e] what Officer” inherits the role (emphasis added) and that this use of “[o]fficer” refers to officials within the executive branch, making the provisions of the act that would pass the acting presidency on to the speaker of the House or president pro tempore unconstitutional. This view has been a minority one since the first Congress, which installed legislative officers in its original line of presidential succession. Nonetheless, it continues to carry substantial weight among contemporary lawyers who see the Constitution as requiring a sharp separation between the political branches—a community that may well include a majority of the current Supreme Court.

Of course, the situation is arguably different when it comes to the act’s provisions governing what happens when each candidate “fail[s] to qualify” for the presidency and vice presidency. The 20th Amendment, not Article II, provides Congress the authority to address such scenarios. And the 20th Amendment uses the much broader term “person[s]” to identify who may serve as acting president, not “[o]fficer[s].” This suggests that, even if the use of “[o]fficers” in Article II should be read as limiting succession to executive branch officials, this limitation does not apply to “fail[ure] to qualify” scenarios covered by the 20th Amendment, which allows Congress to insert any eligible “person” into the line of succession.

These differing constitutional interpretations are likely to become a point of dispute if and when a failed election leads to the Presidential Succession Act being used to fill the White House. The Supreme Court will almost certainly have to resolve this question, and there seem likely to be numerous parties willing and able to litigate the dispute to a full conclusion. 

Doing so will take time, however. In the interim, control of the executive branch is likely to hinge on how the executive branch itself understands the Presidential Succession Act and the relevant requirements of the Constitution. Once again, in the absence of a president, Attorney General Garland or his delegees in the Office of Legal Counsel (or, if these officials have resigned, those filling these roles in an acting capacity) will most likely be responsible for articulating a legal position that is binding on the rest of the executive branch. In this sense, they will be the ones who determine who will be able to act as president, at least until the federal courts say otherwise—or until Congress finally completes the process for selecting a new, permanent president or vice president.

Implications for 2024 and Beyond

For those concerned about the possibility of election manipulation in 2024, this analysis should be heartening. The ECRA is designed to foreclose the sorts of strategies that supporters of former President Trump used to try and affect the election outcome in 2020. And with a few minor exceptions—such as the lingering ambiguity surrounding the meaning of “regularly given”—it seems to do so successfully. This does not mean that people will not try, or that there will not be a flood of related legal action in the weeks following the election—indeed, there almost certainly will be. But so long as the ECRA is applied as written, opportunities to turn the outcome of the election in one’s favor are likely to be far slimmer than in 2020.

Those weaknesses that remain have less to do with the ECRA itself and more to do with the Constitution itself. There may well be constitutional limits on one Congress’s ability to legislate how future congresses count electoral votes, which means that a majority in both chambers most likely could choose to abandon or supersede statutory rules like those set out in the ECRA when counting electoral votes. And however implausible it may seem on the merits, the vice president (as president of the Senate) can claim and try to act on far broader constitutional authority over electoral vote determinations than the ECRA allows, at least and until they are corrected by the federal courts. Neither possibility seems likely in 2024, as the ECRA should have enough remaining bipartisan support in (at least one chamber of) Congress and Vice President Harris has already publicly rejected the idea that she has such broad constitutional authority. But they may be of greater concern in future elections subject to less favorable political conditions.

Instead, the greater threat to the 2024 presidential election may be a collapse of the system as a whole. The fact that the Constitution requires that electoral votes be counted in the presence of both chambers of Congress arguably gives each the capacity to derail those proceedings by refusing to cooperate. A majority in either chamber might choose to do so if they prefer the presidential line of succession over the winner of the 2024 election, or even just as perhaps the last remaining means of protesting the results and reducing public confidence in the presumed president-elect. Or internal discord—such as that reflected in the recent internal Republican fight over the speaker of the House position—may unintentionally limit one chamber’s ability to participate. And while neither source of disruption is likely to be permanent, either could readily extend past the two weeks between the joint session to count electoral votes and the inauguration, leaving it unclear who will succeed President Biden when his term comes to its constitutionally mandated end.

This may be the most novel takeaway from this assessment: In addition to preparing for maneuvers like those Trump and his supporters attempted in 2020, candidates, members of Congress, and outside advocates also need to prepare themselves for novel steps certain contingents in Congress might take to disrupt the proceedings altogether. Within the executive branch, the attorney general and the Office of Legal Counsel need to consider how they will interpret the Presidential Succession Act and other key authorities if and when no president-elect is in place by Jan. 20. Indeed, publicly releasing these interpretations and related intentions may even help deter such disruptions in the first place, by making clear that the executive branch has plans for continuing to operate in an orderly fashion, even if the full transfer of presidential authority is delayed.

As for future elections, this analysis also points to other areas in need of work, specifically by Congress. As a complement to the ECRA, Congress may wish to consider enacting supplemental legislation that clarifies some (if not all) of the various ambiguities surrounding how contingent elections are to be handled, thereby limiting opportunities for manipulation. The Presidential Succession Act also warrants legislative attention, both to reduce any perverse incentives it may present and to avoid constitutional doubts that might compromise its operation. Finally, if faced with an incumbent presidential administration that they believe might manipulate election outcomes in their favor, the Senate may wish to be especially careful in regard to which nominees they support for the offices of attorney general and secretary of state—the former because the attorney general is the person who will determine who the executive branch views as the lawful president (or acting president) while any litigation or other determinative proceedings are ongoing, and the latter because they may well become acting president under the line of succession as presently written.

The 2024 election is poised to be a challenging one, both today and in the weeks to come. Violence, misinformation, and allegations of misconduct may all be in the cards. But thanks to the actions of a bipartisan Congress and the countless advocates who pushed them forward, the legal process for selecting a president is in a much better position to weather these challenges now than it was four years ago. Whether it will stay this way in the future, however, depends on whether future policymakers will continue to support and reinforce it—and whether the voters choose to elect officials who value democracy and the rule of law over their own empowerment.