Jason Willick in the Washington Post:

After the Jan. 6, 2021, Capitol riot, Donald Trump’s opponents had a dilemma. The president’s behavior had been egregious, but the Senate acquitted him in an impeachment trial. He had to be criminally charged — but for what? His role in the riot seemed to entail First Amendment-protected speech, such as sharing falsehoods about the 2020 election on social media and delivering a rowdy political speech on the Ellipse.

It took a while for Trump’s opponents to figure out a hook for a criminal prosecution: “fake electors.” In states Trump lost, such as Arizona and Michigan, his supporters had gathered in December 2020 to simulate an electoral college vote as if he had won. The “alternate electors,” as they were then called, got some media coverage, but no one confused them for the electors certified by state officials.

. . .

The idea is that sending Congress a slate of electors representing the losing candidate is a political act, not a crime. And in Arizona, Judge Sam J. Myers ruled that state prosecutors had given that defense short shrift. The Electoral Count Act is “central to the Defendant’s claims that they were acting lawfully and without an intent to defraud,” Myers wrote in orders released Monday. Yet “the actual text and provisions of the ECA were never provided to the grand jury.”

As a result, the judge concluded, the grand jury proceeding did not comply with due process. If the state’s Democratic attorney general, Kris Mayes, wants to press forward with her case, she’ll need to get the ruling reversed on appeal or go back to seek the indictment again. Mayes also said in February that she would appeal the judge’s finding that her prosecution might interfere with the electors’ free-speech rights.

Nor have liberal prosecutors been cruising to convictions of “fake electors” in other states. In the Michigan electors case, the Detroit News reported last year that “prosecutors have struggled to supply evidence to back up charges that made national headlines” in pretrial proceedings. In Nevada, a judge ruled that charges against Trump electors — filed in 2023 just before a statute of limitations ran out — were brought in the wrong place. That will move the trial to a more conservative jury pool.

Wisconsin’s justice department doubted that the Trump elector slate was criminal in 2022, only to bring charges in 2024 against operatives who organized it. Georgia’s case — which immolated spectacularly because of an ethics complaint against the district attorney — has paradoxically been the most successful, producing a handful of guilty pleas.

Some of these state-level prosecutions might still make their way to trial and conviction in the coming months and years. But even then, they will confront novel issues on appeal because of the First Amendment right to petition Congress and the ambiguity of the Electoral Count Act (which Congress clarified in 2022). At the end of it all, cases about the 2020 election probably won’t be resolved until the 2030s.

Mark Bohnhorst has posted this draft on SSRN. Here is the abstract:

Recent scholarship argues that Section 2 of the Fourteenth Amendment protects the people’s right to elect presidential electors. This Article offers fresh perspectives both on Section 2 scholarship and on the underlying history of the Electors Clause. It begins with a review of modern interpretations of the Fourteenth Amendment. It then summarizes the author’s recent research into the text and structure of the Electors Clause and its ratification. It also offers new perspectives on consequential debates over the constitutionality of legislative elections that began in 1800 and ended in 1826. When Section 2 was drafted in June 1866, the popular election of presidential electors was universal, challenged only by South Carolina’s formerly renegade but recently repudiated and abandoned practice. Section 2 created or reaffirmed the rights of the people and protected against backsliding. Our subsequent history-including a second ratification of the words of the Electors Clause in 1961-confirms the people’s right to elect the president.

See also this companion piece:

This paper is a full report of the author’s recent research into the meaning of the Electors Clause. It supports the thesis that the “plenary power” dictum of McPherson v. Blacker is based on a fundamental misreading of history. (Part I.D is a full treatment of ratification, which is summarized in a companion article that is forthcoming in Denver Law Review, SSRN # 5180256. The Appendices are new.) This paper takes an in-depth look at the following topics: (i) the constitutional text and structure, (ii) ratification, (iii) the state elections of 1800 in Virginia and New York, (iv) Rufus King’s advocacy in the Senate (1816-1824), and (v) the state elections in New York in 1823-24 (including Rufus King’s role in those elections). The paper adds to the already substantial evidence that the historical review that underlies McPherson’s “plenary power” dictum is unmoored from the history of the constitutional convention, the ratification, and the nation’s most serious and consequential debates about the meaning of the Electors Clause.

John Rogan has written this article for the Fordham Law Review Online. Here is the abstract:

Abolishing the Electoral College in favor of using a national popular vote to elect the president and vice president is unlikely to attract sufficient bipartisan support to reach the high thresholds for amending the U.S. Constitution. However, the Electoral College has flawed features that both Democrats and Republicans might support reforming because those defects can undermine either party’s candidates. This Essay highlights three such defects. First, contingent elections—a process by which Congress selects the president and vice president if no ticket wins a majority of electoral votes—are deeply unrepresentative of the American electorate while also being subject to unpredictable dysfunction and partisan manipulation. Second, presidential electors—the individuals who are expected to transmit the will of voters—can attempt to exceed their ministerial roles to either party’s detriment. Third, the constitutional provision that lets states determine how to appoint their electors is ambiguously drafted and makes it possible for states to bar voters from participating in presidential elections.

John Koza has posted this draft on SSRN. Here is the abstract:

This paper is in response to a paper entitled “The National Popular Vote (NPV) Proposal for U.S. Presidential Elections Undermines Election Integrity” by Ronald Rivest and Philip B. Stark (the “RS” paper). 

The RS paper’s claim to have discovered an “unchallengeable” way to thwart the operation of the National Popular Vote Compact is demonstrably false. 

The RS paper claims that there would be “no way for any party to push back on any state’s reported tallies” under NPV—even if “state-level results are untrustworthy or absurd” or a state reported “a billion votes for one candidate.” In fact, NPV would operate inside the same legal framework and judicial system as the current system of electing the President (which provides five avenues for challenging vote tallies).

The RS paper’s claim that “NPV eliminates critical bulkheads that help assure the integrity of U.S. Presidential elections” is based on an inaccurate and exaggerated picture of the current state of affairs concerning post-election audits. In fact, the type of post-election audit championed by the RS authors was used to audit the presidential race in only two of the battleground states and none of the outcome-determinative states in 2024. Because of three additional flaws in the apples-to-oranges comparison conducted by the RS paper, the RS paper fails to show that NPV “undermines” “critical bulkheads” of election security. 

None of the arguments against the NPV Compact in the RS paper withstand scrutiny. None demonstrate that the Compact would undermine election integrity in any way. To the extent our elections are legitimate, accurate, and trustworthy today (and they are), they would remain equally legitimate, accurate, and trustworthy under the NPV Compact. 

AP:

For decades Republicans in GOP-dominated Nebraska have tried and failed to upend the state’s unusual method of splitting its presidential electoral votes by congressional district. Now, with yet another winner-take-all bill likely to fail, they are proposing to put it to a vote of the people.

The proposed referendum is billed as a backup plan to the winner-take-all measure, introduced at the request of Republican Gov. Jim Pillen, which appears to have little chance of surviving a promised filibuster. If it fails, Sen. Myron Dorn says he’ll seek to pull the referendum measure from committee in the hopes that voters will approve the change in the 2026 general election.

Republicans have tried to reverse the split vote system since the Legislature adopted it nearly 35 years ago, with most saying Nebraska should mirror the 48 states that use a winner-take-all system under which all electoral votes go to a single candidate. Maine is the only other state that splits its electoral votes.

Mark Haidar and Aiden Calvelli in The Hill.

This memo from the Office of Legal Counsel was released January 17, 2024, but was written February 27, 2020 (i.e., late in the first Trump administration and well before Election Day). There is an editor’s note that the Electoral Count Reform Act eliminated references to “registered mail.” But despite the fact that much of the memo has been superseded by statute, the framing of the memo presents interesting observations about the role of the Archivist in relation to certificates of electors’ votes:

We conclude that federal law does require state officials to send their electoral certificates by USPS’s registered-mail service. The plain language of the statute requires the use of registered mail, and this interpretation is supported by the history of the statute, Congress’s decision to amend other statutory provisions, and the relevant judicial precedent. But the statute places no restrictions on the Archivist’s acceptance of the States’ certificates. Instead, it calls for him to request duplicate copies only if he does not “receive[]” a State’s vote certificates. 3 U.S.C. §§ 12, 13. The statute therefore does not require the Archivist to reject certificates sent by an unauthorized means. By refusing receipt, the Archivist would thwart the statutory scheme, which seeks to ensure that the States reliably transmit the certificates to the Archivist for the purpose of keeping the official records and, in the case of the certificates of the electors’ votes, as duplicates of the vote certificates sent to the President of the Senate.

Dan Greenberg: “Point: The Electoral College Protects Minority Views and Discourages Fraud.”

Rob Richie:  “Counterpoint: The Electoral College Must Be Reformed.”

Mark Haidar and Aidan Calvelli have posted this draft on SSRN (forthcoming, Election Law Journal). Here is the abstract:

Presidential elections are often close; that much is clear. But the standard ways of measuring the margins in these elections-the national popular vote and the Electoral College vote-paint incomplete, even misleading pictures of exactly how close they are. Due to the structure of the Electoral College, national votes don’t decide the presidency. And because of state winner-take-all rules for allocating electors, Electoral College counts often inflate the gap between candidates. Both measures fail to capture how election outcomes can turn on a small number of individual votes in a few key states. This Article presents a new metric that better assesses the closeness of presidential elections: the “Determinative Popular Vote” (DPV)-the minimum number of additional votes that could have altered the Electoral College outcome. We present the first comprehensively defined and historically complete analysis of this approach, calculating DPV for every election from 1836 to 2020. Our measure of closeness reveals that presidential elections are far closer than other metrics suggest. Our findings also provide new data to evaluate longstanding critiques of the Electoral College’s democratic legitimacy, including how it creates unequal voting power, allows for electoral inversions or contingent elections, and presents risks of election subversion. DPV is thus a tool for scholars, political analysts, and citizens alike to accurately measure the margin in our most consequential elections.

Roll Call:

Lingering ill will among House Republicans after another messy spending fight could complicate Speaker Mike Johnson’s bid to retain the House gavel — and potentially the Jan. 6 formalizing of Donald Trump’s election victory.

As president of the Senate, Vice President Kamala Harris would be the presiding officer during a joint session of Congress that day to complete the American presidential election process. It is a constitutional duty that essentially requires her to oversee the certification of her 2024 rival’s decisive victory.

To get to a swift and professional counting session, the House on Jan. 3 — or perhaps in the following two days — would need to elect a speaker, who would then administer the oath of office to the newly elected and reelected members. 

If a protracted speaker fight lasts beyond 1 p.m. on Jan. 6, congressional scholars agree there are procedural options that could help ensure the counting and certifying of Electoral College votes that day. But that could prove difficult following yet another span of GOP infighting over government funding and the debt ceiling that saw Speaker Mike Johnson battling rebellious conservatives. …

But even if a speaker is not elected in time for Jan. 6, multiple congressional and legal scholars told CQ Roll Call that the clerk – if both parties agree — could potentially swear in all House members because the Constitution grants the chamber exclusive authority to organize itself. 

While there is no precedent in U.S. history to guide House members through such a scenario, they likely have the authority to, as Smith put it, “make up a precedent.”

And, should that be necessary, he said one option would be to reach an agreement under which “the clerk could organize the House and even allow for the Jan. 6 count to proceed — speaker or no speaker.”

Derek Muller, a professor at the University of Notre Dame Law School, said the Constitution gives the House the authority to organize itself, which would give members enough legal wiggle room to find a way out of what would be an unprecedented situation.

“They could elect an acting or temporary speaker, with a provision that the entire House would revisit the matter of a permanent speaker in X-number of days,” Muller said….

Justin Levitt, a law professor at Loyola Marymount University who served as senior policy adviser for democracy and voting rights in the Biden White House, said he thinks the joint session to count the electoral votes likely could proceed without a speaker.

The speaker has two formal roles on Jan. 6, Levitt said: selecting the two tellers who read out the votes and overseeing the House during any debates over objections to the Electoral College votes. 

Levitt said the teller portion could likely be handled by majority vote or unanimous consent and objections would be unlikely under the new, higher threshold to sustain them established by the 2022 overhaul to the law governing the counting of presidential electoral votes. Dubbed the Electoral Count Reform Act, the law was enacted as part of a bipartisan reaction to the Jan. 6, 2021, attack on the Capitol and laid out specific procedures for presidential election certification, challenges and more. 

Levitt also said that although the regular House cannot do business without a speaker, it is a different body — constitutionally — when it is part of a joint session to count the votes.

“I don’t think, as a constitutional matter, there is an impediment to members of the body proceeding with the electoral count if the body can’t do any work on its own without electing a speaker,” Levitt said….

Jerry Goldfeder NY Daily News oped:

It hasn’t been reported how Donald Trump celebrated his official election this week, but I have an idea how he should mark the occasion. He should take a leaf out of President Richard Nixon’s playbook and do the unexpected. Let me explain.

In 1971, way before he was mired in the Watergate corruption that brought him down, Nixon, a life-long anti-Communist, declared that he would visit the People’s Republic of China. No announcement could have been more dramatic and counter-intuitive. After all, he built his career — as a member of Congress, United States senator, vice president and president — denouncing the “Communist menace.” For him to decide to break bread with Chinese Communists was, to say the least, a turnabout that startled Americans. 

So, now, after years of deriding the United States Constitution, the judicial process, and the rule of law in general, Trump could offer up his own 180-turnabout moment by embracing one of the most important democratic reforms in American history — a constitutional amendment to abolish the Electoral College.

One would expect a liberal member of Congress to urge this change — and, in fact, three U.S. Democratic senators last week introduced such an amendment — but it would be real news if Trump came out for the direct election of the president and vice president as part of his program to make America great. …