Presidential Control Over Disputed Elections

Abstract

An election that is “disputed” lacks two qualities after Election Day: a clear winner and a concession. These elections instead depend on legal processes — recounts, court proceedings, and more — for resolution. As a result, when a sitting President, running for reelection, becomes immersed in a disputed presidential election, he potentially enjoys an advantage over his opponent. He can attempt to exploit the powers of the presidency to push these legal proceedings in his favor. As a practical matter, this advantage can be formidable. A sitting president can resort to his extraordinary bully pulpit, for example, to influence public sentiment. This advantage shrinks, however, with respect to the President’s official powers — the legal authorities that the President can wield by virtue of his role in government. Here, a sitting President’s advantage over his opponent, at least after Election Day, is slight. As this Essay explains, the President’s powers over a disputed presidential election are not primarily legal in nature; they are political. And, accordingly, so are the means to push back.

This essay was an invited contribution to the Ohio State Law Journal’s online Election Law Roundtable.

Keywords: Congress, President, Separation of Powers, Elections, Administrative Agencies, Administrative Law, Voting