All posts by Derek Muller

“Wisconsin Republicans sue to resolve conflict of when Electoral College votes must be cast for Trump”

electoral college

That’s the headline from the Associated Press.

The Electoral Count Reform Act pushed back the date the electors meet by one day to allow an extra day for resolving disputes in the states, without moving too close to the holidays or reducing the window of time for other transition-related matters (e.g., organizing the House of Representatives). As I wrote back in 2022, state legislatures should have taken the opportunity to re-examine their election codes and update them ahead of the 2024 election. Some states did so. And in Wisconsin, a Republican-led effort passed the Senate nearly unanimously. But it languished in the Republican-controlled state Assembly.

Now Republicans are suing because of vestigial language in state law that they failed to repeal and ought to have done–language saying the electors meet on the first Monday after the second Wednesday in December, rather than the ECRA’s first Tuesday after the second Wednesday. The state law clearly cannot have any force, as the Constitution provides, “The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.” And Congress has done so.

But Wisconsin, like many other states, still have this vestigial language in their laws. In many places, it will be rightly ignored, because it is “Congress” that gives the “day,” not the states. (States here are only parroting federal law.) But now lawsuits like this one in Wisconsin offer a belt-and-suspenders approach to ensure that the electors do not meet on Monday. Of course, they must meet on Tuesday, December 17, because federal law demands it. And if they do, there is no possible objection in Congress that they met on the wrong day.

Unfortunately, the lawsuit highlights how state legislative recalcitrance to update even basic election law matters can create a potential (albeit legally quite weak) problem. Here’s to hoping state legislatures update their laws by 2028.

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Pennsylvania appeals court finds Democratic election observers’ “Voter Protection” badges violated state electioneering statute

election administration

From the Commonwealth Court of Pennsylvania’s decision In re: General Election, 2024, a unanimous three-judge decision (lightly revised):

On Election Day, November 5, 2024, counsel for the [Trump] Campaign [and RNC] appeared at Philadelphia’s Election Court and requested an order prohibiting badges worn by the [Pennsylvania Democratic] Party’s poll watchers inside polling places. . . . Generally, the evidence indicated poll watchers had entered polling places in Philadelphia wearing badges on lanyards with the words: “PA DEMS VOTER PROTECTION.” The badges included a statement that they were “paid for by [the] Pennsylvania Democratic Party.” The Campaign’s witnesses did not indicate any poll watchers spoke to voters while inside polling places.

Counsel for the Campaign contended wearing the badges while inside polling places was electioneering in violation of Section 1220(c), based on guidance by the Pennsylvania Department of State (Department). . . .

Counsel for the Party maintained wearing the poll watcher badges was not an attempt to persuade voters and, therefore, was not electioneering. . . .

At the conclusion of the hearing, the trial court announced it would deny the Campaign’s request. The trial court reasoned the Campaign had not objected to the words “VOTER PROTECTION” on the poll watcher badges, and “PA DEMS” was printed in small font, so that “no one, unless they are going up to the watcher, leaning down and trying to read their badge is going to see what it says.” . . .

Section 1220 of the Election Code provides a series of regulations in force at polling places on Election Day. These include Section 1220(c), which instructs that “[n]o person, when within the polling place, shall electioneer or solicit votes for any political party, political body or candidate, nor shall any written or printed matter be posted up within the said room, except as required by this act.” 25 P.S. § 3060(c). The Election Codes does not define the term “electioneer.” As a result, we may turn to dictionaries to discern the statute’s meaning. “Electioneering” means “[t]he practice or an instance of trying, us[ually] within established rules, to influence the outcome of election by distributing pamphlets, making speeches, door-to-door canvassing, etc.” Black’s Law Dictionary 655 (11th ed. 2019). Similarly, to “electioneer” means “tak[ing] an active part in an election; [specifically,] to work for the election of a candidate or party.” Merriam-Webster’s Collegiate Dictionary 371 (10th ed. 1997).

The poll watcher badges at issue included the Party’s nickname, “PA DEMS,” the words “VOTER PROTECTION,” and language indicating the Party paid for the badges. The Election Code provides poll watchers are identified by certificates they receive from the county board of elections and does not contemplate poll watcher badges. See Section 417(b) of the Election Code, 25 P.S. § 2687(b). By wearing the badges while inside polling places, the Party’s poll watchers showed association with, and encouraged voters to cast ballots for, the Party and its candidates. This was impermissible electioneering under Section 1220(c).

Although we conclude that allowing poll watchers to wear a political party’s name, such as “PA DEMS,” while inside a polling place is enough to violate Section 1220(c), two other factors weigh in favor of our decision. First, the badges included language applicable to political advertising, indicating the Party paid for them. This demonstrates the Party understood the badges to promote its interests and serve an electioneering purpose. . . .

Second, the badges did not describe individuals wearing them as poll watchers but as “VOTER PROTECTION.” Protecting voters is an admirable objective, which might persuade the public to vote for the Party and its candidates. Alternatively, the badges could imply to voters that opposing political parties or candidates pose a risk of harm that warrants the Party’s “protection.” This is a partisan message that serves no purpose other than electioneering. Indeed, the Election Code does not depict poll watchers as “protecting” voters but empowers them to challenge voter qualifications and review records. . . .

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Bucks County, Pennsylvania election official: “People violate laws any time they want, So, for me, if I violate this law it’s because I want a court to pay attention.”

election administration

Ugly election administration scene and legal dispute playing out in Pennsylvania, here reported by Katie Bernard, Jeremy Roebuck, Sean Collins Walsh, and Fallon Roth at the Philadelphia Inquirer:

It’s been a week since the Associated Press called Pennsylvania’s tight Senate race for Dave McCormick, concluding the Republican had closed off any viable path for Democratic Sen. Bob Casey to still eke out a win.

But their campaigns are still battling it out in counties and in court.

With certification deadlines and a statewide recount looming, the candidates are locked in a county-by-county trench battle over small tranches of contested provisional ballots left to be counted across the state. Statewide, officials estimated fewer than 80,000 of the ballots cast — or less than 2% of the vote — remained outstanding as of Thursday.

For Casey, who has resisted conceding as remaining votes are counted, those small county-level fights — sometimes over just dozens of ballots — offer his last, best chance to make up his roughly 25,000-vote deficit in the race.

Though closing the gap remains a long shot, Casey’s insistence has also reignited long-standing disputes between Republicans and Democrats over which votes should be counted and which should be rejected — and prompted some counties to openly defy recent rulings from the Pennsylvania Supreme Court.

“I think we all know that precedent by a court doesn’t matter anymore in this country,” said Bucks County Commissioner Diane Ellis-Marseglia, a Democrat, as she cast a vote Thursday to count certain deficient provisional ballots previously barred by court order, where voters did not sign in one of two necessary boxes.

“People violate laws any time they want,” she said. “So, for me, if I violate this law it’s because I want a court to pay attention. There’s nothing more important than counting votes.”

. . .

Meanwhile, a separate fight is brewing over the fate of some of the most litigated ballots in the state — mail ballots submitted without a date or with the wrong date written on the outer envelope.

Despite two earlier rulings from the Pennsylvania Supreme Court that those ballots should be rejected in this year’s election, officials in Bucks, Montgomery, Philadelphia, and Centre Counties have bucked that order and voted in recent days to include them.

Though those openly defiant decisions will almost certainly be overturned in court, they continue a recent pattern by majority commissioners in all four counties to vote for the inclusion of undated ballots. None of the commissioners who supported their inclusion couched their votes in terms of the ongoing Senate race.

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The Time of Choosing Clause and its constraint on more outlandish Electoral College scenarios

electoral college

There have been some doomsday scenarios about activities state legislature might engage in after Election Day. A little context (and a long blog post!) may help explain why state legislatures are not free to do whatever they’d like, contrary to some right-leaning and left-leaning commentary over the last few weeks.

Continue reading The Time of Choosing Clause and its constraint on more outlandish Electoral College scenarios →
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“Trump campaign announces lawsuit against Bucks County over long lines and early cut-offs for voters casting mail ballots”

election administration

One more story to watch in Pennsylvania, from the Philadelphia Inquirer (UPDATE: the court extended the deadline by one day, per the story here):

Former President Donald Trump’s campaign is planning to file a lawsuit against Bucks County over long lines and early cut-offs at county election offices for voters requesting and casting mail ballots, Republican National Committee Chair Michael Whatley announced Tuesday night. . . .

Voters have been regularly turned away from lines to request and cast a mail ballot at the county’s election office and two satellite offices before the end of posted voting hours because the lines had grown so long that it would take staff the rest of the posted hours to work through the voters already in line, county officials said. . . .

Republicans argued voters who are in line by the end of posted hours should be allowed to request and cast their mail ballot, like they would be on Election Day. But Pennsylvania law does not clearly state that those in line to request a mail ballot by the 5 p.m. deadline should be allowed to request and cast that ballot.

Pennsylvania Secretary of State Al Schmidt had urged counties to help ensure voters who were in line were able to cast their ballots Tuesday. Ultimately, Bucks County cut off the line for voters requesting and returning a mail ballot around 2:30 p.m., but continued to allow any voter who was in line by 5 p.m. to request a mail ballot.

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Some risks about overstating risks this election

electoral college

In the midst of so many disaster scenarios and worries ahead of this election, it’s worth noting that the more that risks are overstated, the more legitimate those risks appear. It’s been disappointing to see many stories (too many to aggregate, but I did a bit here) continuing to overstate those risks.

The New York Times has two such comments in recent stories, and they are emblematic of themes carried elsewhere in other stories. First, “Trump Hints at ‘Little Secret’ With House Republicans, Setting Off a Panic.”

Still, Mr. Johnson would not be a powerless bystander. He could help organize Republican lawsuits or pressure state boards of elections to throw out legitimate votes. He could reject the electors from certain states, and he could try to refuse to seat new Democratic members of the House.

No single member of the House, from the Speaker on down, has the power to “reject the electors from certain states.” The Electoral Count Act and the Electoral Count Reform Act are crystal clear that it takes majorities of both houses to sustain any objections. The Twenty-Second Joint Rule, the precursor to the ECA in the mid nineteenth century, required at least a majority of one house. Implanting the notion that a speaker “could reject the electors” is legally incorrect but gives not only some fear that it may happen but some suggested legal authenticity to a plainly unlawful act.

Second, “Could the Vote Be Contested Again? 5 Threats to a Smooth Election.“

Congress, however, does play a constitutionally defined role in certifying the presidential results and the slates of electors from the Electoral College, on Jan. 6. In the 2020 election, this process was disrupted by Republicans who voted to challenge several slates of electors and were able to do so with a single protest from each chamber.

Under the new law, challenging a slate of electors will now require a vote from 20 percent of each chamber — a higher bar, but one still likely to be cleared by extreme party loyalists from both sides.

There is no evidence that an objection is “likely.” The Senate has been extraordinarily reluctant to join objections. It did not do so for attempted objections by the House in 2001 or 2017. Only one Senator joined an objection to Ohio’s votes in 2005 and to Pennsylvania’s votes in 2021. And a handful–below 20%–joined on to Arizona’s votes in 2021. That’s in stark contrast to dozens of House members–and in 2021, over 100 House members–who attempted to join objections.

It’s possible, of course, that past performance does not indicate a future likelihood of successful objections. But one good reason for raising the threshold to a figure like 20% is the ability to stave off objections–and had this threshold been in place, counterfactuals concededly aside, none of these objections would have had air time.

With these and other claims, it is important to be precise, to distinguish legally plausible scenarios from implausible ones and to assess risks with caution in the days ahead.

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4th Circuit finds RNC raised federal question in NC state equal protection dispute by invoking HAVA

court decisions, voter registration

Wonky civil procedure decision today (that is, Republicans filed in state courts and would have preferred to stay there; the board removed to federal court and wanted to stay there) in RNC v. N.C. State Bd. of Elections (lightly revised):

The Republican National Committee (“RNC”) and the North Carolina Republican Party (“NCGOP”) (together, “Plaintiffs”) filed two state law claims, one statutory and one constitutional, in a North Carolina superior court against the North Carolina State Board of Elections and its members (“State Board”). Both claims stemmed from the State Board’s alleged noncompliance with the Help America Vote Act of 2002 (“HAVA”), 52 U.S.C. § 20901 et seq., a federal statute that was intended to improve voting systems and voter access. . . .

Count Two asserts that the State Board violated the Equal Protection Clause of the North
Carolina Constitution, Article 1 § 19, through HAVA violations that “open[ed] the door to
potential” vote dilution. . . .

We disagree with the district court’s conclusion that exercising federal jurisdiction over Count Two would open the floodgates to a wave of state constitutional litigation in federal court. Just as Grable found that “it will be the rare state title case that raises a contested matter of federal law,” we conclude that it will be the rare state equal protection case that turns on a violation of HAVA or the NVRA. In fact, we are aware of no other state constitutional case similar to this one, and Plaintiffs have pointed to none.

Plaintiffs’ Count Two claim may come cloaked in state constitutional garb, but it raises only federal statutory questions. Here, the alleged state constitutional claim necessarily turns on the contested interpretation of provisions of federal laws, HAVA and the NVRA. The viability of the state constitutional claim depends, therefore, on a court’s adopting Plaintiffs’ preferred reading of two federal statutes.

As the district court recognized, consideration of HAVA’s overall statutory scheme “leads to the conclusion that Congress intended for federal courts to resolve core questions of statutory interpretation.” HAVA authorizes the Attorney General to enforce compliance with its requirements “in an appropriate United States District Court.” HAVA § 21111 (emphasis added). We are confident that Congress did not intend to prevent federal courts from deciding cases where the sole issue, the interpretation of a federal statute, may determine who can vote in a federal election. The mere invocation of a state constitutional provision does not unsettle that conclusion.

Chief Judge Diaz concurred to explain why the RNC “barely” met the standing requirement in federal court, citing, among other things, FDA v. AHM.

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Some perspective on this week’s recent election law disputes

absentee ballots, election administration, Supreme Court

Virginia has around 5,800,000 active registered voters. In Beals v. Virginia Coalition for Immigrant Rights, about 1600 voter registrations are in dispute–about 0.02% of the total registered voters. (And of course, while not all registered voters vote, many of these disputed voter registrations might never be used.)

About 215,000 voters turned out in Nevada’s presidential preference primary in 2024. The RNC identified 24 ballots that arrived in the 3 days after the election without a postmark. That’s about 0.01% of ballots cast. If comparable numbers occur in 2024, it’s around 150 to 200 ballots. (It’s entirely possible changes to the postal service move this in an order of magnitude in one direction or another; or a general election sees disproportionately more late-arriving ballots than a primary.)

And in Republican National Committee v. Genser, a narrow batch of potential provisional ballots are at issue. Rick Pildes helpfully suggests the number of ballots is likely to be between 1000 and 3000 ballots–between 0.01% and 0.03% of expected ballots cast.**

**UPDATE: A caveat here is that the RNC argues that the case could be precedent beyond those ballots at dispute in this case–ballots lacking a secrecy sleeve–to other provisional ballots cast when the absentee ballot is lacking other things, too. That universe could be much larger, but there remains some dispute and some more ambiguity about what that looks like. Rick Pildes has more thoughts here.

With any disputed batch of ballots or voters, an additional factor is which way they cut for a candidate or another. They would almost assuredly not end up as 100% for one candidate or another. Even a 2/3-1/3 split can be unlikely, but, perhaps with absentee ballot trends and how the parties have shifted voting preference in recent years, that kind of split is somewhat more likely.

We are far afield from the disputed ballots in Bush v. Gore in 2000, around 60,000 “undervotes” and 110,000 “overvotes” statewide, about 3% of the total votes cast.

And we’re even far afield from Republican Party of Pennsylvania v. Boockvar in 2020, where 9428 ballots were ultimately in dispute among 6.9 million cast, about 0.13% of the total.

Of course, we want to follow the law in these disputes. And of course, we want to ensure that eligible voters have a meaningful opportunity to cast a ballot and have it counted. Those are important issues in every election law dispute.

But if we are looking at concerns about consequences in the 2024 election, these legal disputes are really, as I’ve described to some outlets, “picking at the edges” of election litigation. In the long term, they could set up much more seismic disputes about, say, the interpretation of the Legislature Thereof Clauses, or the National Voter Registration Act, in years to come. But in terms of their concrete impact on the 2024 presidential election (or any other election), their influence is likely to be quite muted, whichever way these decisions are ultimately resolved. That said, if any state is decided by just a few hundred votes like Florida in 2000, all bets are off, and these disputes, while suddenly important, would only be the start of any litigation in such a state.

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“‘We addressed it’: Why this election will be harder to stop on Jan. 6, 2025”

electoral college

Senators on the record, from Burgess Everett and Elana Schor at Semafor:

The US and world are bracing for post-election chaos in Washington on Jan. 6, 2025, as Congress prepares to name a presidential winner. The reality is another story: It will be much harder to stop the certification this time around.

Lawmakers believe that their approval of the electoral count is far more likely to go smoothly this time around, despite former President Donald Trump’s celebration of the rioters who disrupted the certification of his loss four years ago. Thanks to an under-the-radar bipartisan 2022 law that significantly narrowed members’ abilities to challenge presidential election results, Hill denizens are breathing a little easier as the election approaches.

One key change: Previously, only one senator and House member could join forces to object to any state’s presidential results and force a vote. That objection threshold is now orders of magnitude higher — 20 senators and 87 House members, one-fifth of each chamber.

“I fully expect that there will be some attempts to have baseless objections. But I do not believe they will be able to meet the 20 percent threshold in each body,” Sen. Susan Collins, R-Maine, one of the law’s chief sponsors, told Semafor. “The reforms we enacted will go a long way toward preventing another January 6.”

. . .

Sen. Thom Tillis, R-N.C. compared the upcoming Jan. 6 certification to the year 2000s Y2k scare, which stoked fears of disaster that didn’t pan out.

“It could be a dud. But to the extent that we have any vulnerabilities coming out of Jan. 6, 2021, we addressed it,” said Tillis, who unlike Collins has endorsed Trump.

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No private right of action to enforce list maintenance, voter registration provisions of HAVA, federal court holds

court decisions, election law and constitutional law

Continuing a recent tranche of lower court debates over whether certain election-related provisions permit a private right of action, including Section 2 of the Voting Rights Act and Election Day date provisions of federal law, a federal judge in North Carolina just issued the follow decision in RNC v. NC State Bd. of Elections:

Section 21083( a)(2)(A) provides that “[t]he appropriate State or local election official shall perform list maintenance with respect to “that state’s voter registration list in a manner consistent with the NVRA. 52 U.S.C. § 21083(a)(2)(A). Section 21083(a)(5)(A)(i) mandates that, prior to processing a voter’s registration, “a State” must collect the applicant’s “driver’s license number” or “the last 4 digits of the applicant’s social security number.” 52 U.S.C. § 21083(a)(5)(A)(i).

The court finds the first Cort factor, whether Plaintiffs are within the class for whose “especial benefit” these provisions were intended, weighs heavily against implying a private right of action. Cort, 422 U.S. at 78. These provisions of HAVA “are designed only to guide the State in structuring its systemwide efforts at” voter registration and voter list maintenance. Blessing v. Freestone, 520 U.S. 329, 344 (1997). Statutory provisions such as these “that focus on the person regulated rather than the individuals protected create no implication of an intent to confer rights on a particular class of persons.” Alexander, 532 U.S. at 289 (internal quotation mark omitted).

Although at some level these provisions of HAVA are aimed at ensuring the proper administration and integrity of elections, which in tum benefits all voters, it’s not enough that “the plaintiff falls within” some “general zone of interest that the statute is intended to protect.” Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002). “[S]uch a definition of ‘especial’ beneficiary” would “make[] this factor meaningless.” California v. Sierra Club, 451 U.S. 287, 294 (1981). Rather, something more “is required for a statute to create rights enforceable directly from the statute itself under an implied private right of action.” Gonzaga, 536 U.S. at 283. The statute must manifest “an unmistakable focus on the benefited class.” Cannon v. Univ. of Chicago, 441 U.S. 677, 691 (1979).

Put another way, “[t]he question is not simply who would benefit from” these provisions of HAVA, but rather “whether Congress intended to confer federal rights upon those beneficiaries.” Sierra Club, 451 U.S. at 294. These provisions of HAVA do not “unmistakabl[y] focus” on Plaintiffs or the voters they represent; the provisions do not mention them at all. Cannon, 441 U.S. at 691. The court thus finds that these provisions do not “create[] an individually enforceable right in the class of beneficiaries to which [Plaintiffs] belong.” City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 120 (2005). . . .

. . . the court finds that implying a private right of action under these provisions of HAVA would not be consistent with the underlying purposes of the legislative scheme. Cort, 422 U. S. at 78 . To the contrary, consideration of the legislative scheme as a whole leads the court to discern a legislative intent to deny a private remed y. On that point, HAVA contains “separate . . . enforcement mechanisms.” Indiana Pro t. & Advoc. Servs. v. Indiana Fam. & So c. Servs. Admin., 603 F.3d 365 , 379 (7th Cir. 2010). Specifically, “[t]he Attorney General may bring a civil action against any State or jurisdiction in an appropriate United States District Court” to remedy violations of Section “21083 of this title.” 52 U.S.C. § 21111. In addition, states that receive federal funding must “establish and maintain State-based administrative complaint procedures.” 52 U.S.C.A. § 2111 2(a)(l). North Carolina has done so , N.C.G.S. § 163-91(a), and the concerned citizen took advantage of this complaint procedure, DE 1-3 at 12-14.

There are ways to distinguish the Voting Right Act, the Election Day, and the HAVA cases (far too long for a blog post today!), but it’s interesting to see the RNC and DNC at cross-positions with each other in some of these cases. It also raises some interesting questions if these cases reach the Supreme Court on a similar timeline in the years ahead (no cert petitions are pending on any of them right now).

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Democratic, Republican fundraising for election litigation tops $113 million in 18 months for 2024 election cycle

campaign finance, campaigns

I’ve been chronicling the increase in spending on election litigation. Since 2015, election donors may contribute to “election recounts and contests and other legal proceedings,” above and beyond individual candidate campaign contribution limits.

Perhaps surprisingly, the pace of fundraising actually lags the 2021-22 cycle. Democratic fundraising badly lags Republican fundraising, but Democrats performed exceedingly well in 2021-22, and it’s possible that fundraising totals after President Joe Biden dropped out will rebound.

The total from the first 18 months of 2023-2024 cycle are in, and the Federal Election Commission reports more than $113 million in contributions to accounts of national party committees. The breakdown:

DNC: $16,386,455

RNC: $41,950,727

DSCC: $11,737,115

NRSC: $15,813,860

DCCC: $13,928,146

NRCC: $14,083,316

Democratic National Party Totals: $42,051,716

Republican National Party Totals: $71,847,903

(Other: $519)

Grand Total: $113,900,138

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Arizona Supreme Court approves rules for “priority adjudication of post-general election judicial proceedings”

court decisions

On the heels of the proposed rules in Colorado and the rules in Pennsylvania, here are new rules in Arizona to expedite election disputes. These rules continue to show that state courts are taking the deadlines of the Electoral Count Reform Act, and their own legislature’s interest in timely certification of election disputes, seriously.

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Politico, MSNBC, USA Today press implausible scenarios for purported weaknesses of the Electoral Count Reform Act

Uncategorized

Continuing a theme from an earlier post, more disaster scenarios have been promulgated in unrealistic scenarios, often highlighting purported weaknesses of the Electoral Count Reform Act. Of course, these scenarios invented in the last few weeks were hardly uncontemplated in 2021 and 2022 as Congress worked through the law. But the fearmongering will continue. I’ll walk through recent commentary at Politico, MSNBC, and USA Today.

1. Last week at Politico, Professor Aziz Huq has a piece, “Why the Supreme Court Might Cast the Final Vote for President.” His second scenario proceeds:

A second path for the court opens after votes are cast. After a state’s winner is declared, a slate of electors must then be “certified” by each state before the Electoral College convenes to formally anoint the next president. What happens, however, if a state fails to submit its slate to Congress in time? . . .

Imagine, then, that the MAGA-backed Georgia state election board refuses to certify a Harris victory. To be sure, state law imposes what some call a “crystal clear” deadline on the state’s certification. But the board’s MAGA members could say their constitutional oaths forbid them from heeding a state law that requires them to bless what they (falsely) label a fraudulent result. Conflict over state law might well tie the governor’s hands — opening the gate to a legal challenge under the amended Electoral Count Act.

And if that happens, the justices will be in the awkward position of trying to fill a gaping gap in the new statute —which, remember, doesn’t say what to do if no slate is certified — in a case that determines who takes the presidential oath a few weeks later.

The first is a factual error. The Georgia state election board doesn’t certify the results. The county boards certify, and then the Secretary of State. But we know that Secretary of State Brad Raffensperger is hardly the type to refuse to certify an election, so the disaster scenario won’t work.

The second is some kind of mythology that a state will just refuse to certify its results in a timely fashion. It’s never happened. And when occasional election officials drag their feet in recent years, state courts (not federal courts) swiftly step in to order certification. That’s because certification happens under state law, and state courts usually tidily resolve it. In a rare scenario, the federal courts–and the Supreme Court–might be pressed to evaluate, say, a Due Process or Equal Protection claim.

But recall, too, that we have three separate deadlines we’re working with, and it’s error to conflate them. The first is the deadline under state law–here in Georgia, late November (and for county officials, early November. Missing that deadline will result in swift litigation. The second is the December 11 deadline under the Electoral Count Reform Act for the state executive. And if that’s missed, the Act anticipates state or federal judicial relief before December 17.

While the statute “doesn’t say what to do if no slate is certified,” that is part of the Act’s virtue. If no slate is certified, you revert to the process, as the Act makes clear in multiple places, “in accordance with the laws of the State enacted prior to election day.” There’s no new mechanism, because existing mechanisms to resolve election disputes have been around for hundreds of years.

2. Neal Katyal appeared on Jen Psaki’s show on MSNBC, with this clip that has been retweeted thousands of times (with various panicked replies), with this analysis:

Trump only need to win and flip one place after November 5 in order to have an outsized impact on the election. Now he can do that as you’re suggesting in the United States Congress . . . . Congress has passed a new law called the Electoral Count Act [sic] of 2022, which is to restrict the types of objections Congress can make. But nonetheless there’s a lot of ambiguity in the law. And of course the Republicans have shown they don’t care about the law, they care about raw power. And so if a simple majority of the House or the Senate say, hey, we don’t trust this Michigan vote, or we don’t like what happened in Pennsylvania, we don’t think it’s right, there was fraud–they can attempt to throw out that state altogether and swing the election, by themselves, and take the vote away from you and me, the American people.

The entire analysis hinges on the word “attempt.” One chamber–frankly, one member–can “attempt” whatever it wants. But the law has some pretty crystal clear rules (despite slamming the “ambiguity” in the law).

The first is that even if a majority of chamber House (Katyal goes out of his way to say “or”) wants to throw out the vote, the Electoral Count Reform Act requires an objection filed by 20% of each chamber. So one chamber cannot act unilaterally.

The second is that once you separate for debate, it takes a majority of both houses to agree to some objection–that is, agree to throw out some votes.

Katyal badmouths Republicans who “don’t care about the law,” but focusing on the Senate for a moment, Republican Senators from Susan Collins to Rand Paul supported the Electoral Count Reform Act, and it’s implausible to think that a majority of Republicans in the Senate would sustain a frivolous objection.

Katyal also confuses “flipping” a state (i.e., declaring the loser the winner of a state) with “throw[ing] out” the vote, which is akin to the same error that this Rachel Maddow piece some time ago (now corrected) makes. The scenarios work differently in terms of their effect and in terms of their objection. In short, you have to “throw out” twice as many votes as you’d need to “flip.”

And finally Katyal gratuitously mentions “ambiguity” in the Electoral Count Reform Act. The Act has two specific and narrow objections. They are not ambiguous, as my examination of one of those objections, “regularly given,” shows; and as the other, “lawfully certified,” has a specific rule elsewhere for Congress to accept as “conclusive” once the executive has signed the certificate. They can be used as a pretext, as language in a statute might be. But ambiguity is not the problem. (He has promised an op-ed in coming days, sure to expound on these scenarios.)

3. USA Today offers its own new set of three hypotheticals citing “loopholes” in the Act. The first two are a timing scenarios like the Politico piece, but it includes this wrinkle so specious I can’t believe it appeared in print:

Picture this scenario: One candidate is ahead in Georgia after the election, and then a state court judge throws out a number of absentee ballots, resulting in the other candidate leading in the vote. The first candidate appeals that decision, but the other candidate’s lawyers flood the court system with delay-inducing filings before the appeals courts can rule, and the governor certifies Georgia’s electors for the second candidate when the deadline arrives.

The notion that a court can be trapped by judicial filings into being unable to render a timely judgment–why hasn’t anyone thought of this before?

The third is akin to a related Politico concern:

If a governor defies a court order, for example, to certify his or her state’s election for a particular candidate, the act doesn’t spell out what should happen next. Would the court system say Congress is permitted – or even required – to count the votes of a slate of electors that the governor refused to certify? . . .

Sylvia Albert, the director of Voting and Elections for the nonpartisan nonprofit Common Cause, told USA TODAY judges would have little guidance in resolving election issues − not just because there won’t be significant precedent from previous legal cases to guide them, but also because the behind-the-scenes congressional negotiations that resulted in the law didn’t leave a large record to guide courts.

“That is the kind of big black hole of – we don’t know how a court is going to interpret cases around the ECRA,” she said.

As was quite clear throughout the drafting of the ECRA… actually, I’ll just cite my testimony:

There is wisdom in the specific approach of the ECRA, and, in many ways, the things it does not do are just about as important as the things it does. In the event of an election dispute, the very last thing anyone wants is uncertainty. Novel mechanisms may face renewed scrutiny, and even judicial skepticism, at the very moment they are most needed, at a time when they must serve as reliable guardrails.

The ECRA avoids those perils. It does not invite new avenues of litigation that could create tension with the existing, and more stable, litigation. It does not offer novel mechanisms for counting or resolving disputes in Congress that may face future challenges. It does not stretch the bounds of Congress’s constitutional authority in ways that might yield more uncertainty at a time when stability is most needed. The ECRA offers no device that would increase uncertainty in an election. Importantly, in some places, the ECRA retains useful, longstanding language from the present ECA, an effort to reduce disputes over new or different language in the decades ahead. At every turn, the ECRA offers more clarity, more precision, and more stability.

There is little to litigate over the ECRA. The entire premise is that existing state and federal mechanisms–from state recount laws to federal due process claims–are a sufficient basis to address these concerns. It’s a reason I wrote this lengthy piece on the seemingly boring issue of mandamus–stable, existing mechanisms help swiftly resolve disputes in certification.

So, in asking, “Would the court system say Congress is permitted – or even required – to count the votes of a slate of electors that the governor refused to certify?” Of course it would. We’ve seen this happen routinely in mandamus proceedings–a certified result that some later certifying body recognizes. And the ECRA itself expressly provides, “Any certificate of ascertainment of appointment of electors required to be issued or revised by any State or Federal judicial relief granted prior to the date of the meeting of electors shall replace and supersede any other certificates submitted pursuant to this section.”

* * *

There will continue to be gobs of commentary around the Electoral Count Reform Act and disaster scenarios around January 6, 2025. But a little investigation reveals that most of the scenarios have been contemplated, and the existing law–often outside the ECRA–provides readily-available answers.

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