Category Archives: electoral college

The Electoral Count Reform Act and related provisions in Trump v. United States

While serving as mere background and description in places, the majority opinion offers some statements that, I imagine, lower courts might find useful in the event future disputes arise relating to presidential elections. From the opinion:

. . . Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. . . .

. . . When the Vice President presides over the January 6 certification proceeding, he does so in his capacity as President of the Senate. Ibid. Despite the Vice President’s expansive role of advising and assisting the President within the Executive Branch, the Vice President’s Article I responsibility of “presiding over the Senate” is “not an ‘executive branch’ function.” Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict of Interest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 2 (Aug. 28, 1974). With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes, see, e.g., 3 U. S. C. §15, and the President plays no direct constitutional or statutory role in that process. So the Government may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose “dangers of intrusion on the authority and functions of the Executive Branch.” Fitzgerald, 457 U. S., at 754; see supra, at 14. . . .

(It’s worth noting this framing of the Vice President’s role is consistent with the federal district court in favor of Mike Pence last year. And it does call to mind these remarks from then-Vice Presidential candidate Joe Biden in 2008, “Vice President Cheney has been the most dangerous vice president we’ve had probably in American history. The idea he doesn’t realize that Article I of the Constitution defines the role of the vice president of the United States, that’s the Executive Branch. He works in the Executive Branch. He should understand that. Everyone should understand that. . . . The only authority the vice president has from the legislative standpoint is the vote, only when there is a tie vote. He has no authority relative to the Congress. The idea he’s part of the Legislative Branch is a bizarre notion invented by Cheney to aggrandize the power of a unitary executive and look where it has gotten us.”)

Indeed, the Constitution commits to the States the power to “appoint” Presidential electors “in such Manner as the Legislature thereof may direct.” Art. II, §1, cl. 2; see Burroughs v. United States, 290 U. S. 534, 544 (1934). “Article II, §1’s appointments power,” we have said, “gives the States far-reaching authority over presidential electors, absent some other constitutional constraint.” Chiafalo v. Washington, 591 U. S. 578, 588–589 (2020). By contrast, the Federal Government’s role in appointing electors is limited. Congress may prescribe when the state-appointed electors shall meet, and it counts and certifies their votes. Art. II, §1, cls. 3, 4. The President, meanwhile, plays no direct role in the process, nor does he have authority to control the state officials who do. And the Framers, wary of “cabal, intrigue and corruption,” specifically excluded from service as electors “all those who from situation might be suspected of too great devotion to the president in office.” The Federalist No. 68, at 459 (A. Hamilton); see Art. II, §1, cl. 2.

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Who can sue in federal court to enforce the date of holding presidential elections (and perhaps by extension some provisions of the Electoral Count Reform Act)?

The Republican National Committee sued Nevada last month in federal court in Nevada in RNC v. Burgess. The complaint alleges, among other things, that Nevada accepts mail ballots received up to three days after Election Day, even without a postmark, and these ballots are presumed to have been postmarked on or before Election Day. The RNC is challenging that this law violates, among other things, 3 U.S.C. § 1, “The electors of President and Vice President shall be appointed, in each State, on election day,” which is “the Tuesday next after the first Monday in November.” (It is also raising related challenges for congressional elections.)

There is a question of the merits of this argument, but I am not going to write about that.

Instead, this is a very long Fed Courts-y post, so please bear with me. But the core question at issue in some recent and interesting briefing is, who, if anyone, can enforce this provision in the federal courts? And, perhaps more broadly, under what circumstances could someone enforce this and other provisions of the Electoral Count Reform Act?

Continue reading Who can sue in federal court to enforce the date of holding presidential elections (and perhaps by extension some provisions of the Electoral Count Reform Act)?
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A Trump-Rubio ticket is possible, with some Twelfth Amendment wrinkles

The New York Times recently focused on the potential vice presidential candidacy for Senator Marco Rubio, the latest in a long string of earned media Apprentice-style articles in outlets discussing the very public, very slow airing of trial balloons of various vice presidential candidacies from Mar-a-Lago. But with recent pieces there and elsewhere focusing on the legal aspects of his candidacy, I wanted to highlight the potential issue.

Continue reading A Trump-Rubio ticket is possible, with some Twelfth Amendment wrinkles
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“Electors who tried to reverse Trump’s 2020 defeat are poised to serve again”

WaPo:

Republican activists in at least three states where Donald Trump tried to reverse his defeat in 2020 — nearly all of them under criminal indictment for casting electoral votes for him despite his loss — are poised to reprise their roles as presidential electors this year.

Six activists in Michigan, Nevada and New Mexico have made clear to GOP leaders in their states that the investigations into their 2020 activities have not deterred them from seeking the position again. If anything, their view that the prosecutions are bogus has motivated them to step up, according to party leaders.

Their eagerness to serve — and encouragement to do so from their parties — reflects awidespread belief among Republicans that the electors did nothing wrong in 2020, raising the question of what they might do or say if Trump once again loses any of those states. Would they be willing to convene again and cast electoral votes for Trump? Would the Trump campaign try to organize such an effort? What might Trump ask of them? How far would they go to help him return to power?

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New Podcast: Alex Keyssar on why we still have the Electoral College

In a new episode of Democracy Paradox sponsored by the Ash Center, Justin Kempf sat down with Alex Keyssar to discuss his book Why We Still Have the Electoral College?— and what the future holds for this archaic institution. Keyssar explores the history behind efforts to reform the Electoral College, how the different sides of the debate changed over time, and why reformers have repeatedly failed in their efforts.

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“The fight for a single electoral vote rages on in Nebraska”

CNN:

Omaha is a blue dot in a sea of Nebraska red, which is precisely why Donald Trump and his allies are furiously fighting to change the state’s system of awarding electoral votes in presidential elections.

Even after the Nebraska Legislature closed the door on a pressure campaign intended to keep President Joe Biden from winning one of the state’s five electoral votes – as he did in 2020 by carrying the Omaha-anchored 2nd Congressional District – Trump loyalists are pledging to keep the effort alive.

“We are going to keep on pushing and keep on pushing and keep on pushing until Nebraska gets winner-take-all,” said conservative activist Charlie Kirk, who appeared alongside several state Republican officials here Tuesday to rally support for the change. “Nebraska could pick a president.”

Nebraska Gov. Jim Pillen, a Republican, said this week he was open to calling a special legislative session dedicated to making his state’s presidential contest a winner-take-all affair, all but assuring that Trump would collect the full lot of electoral votes. But Pillen said he would do so only “when there is sufficient support in the Legislature to pass it.”…

Of this year’s presidential battlegrounds, if Biden carries the so-called blue wall states of Wisconsin, Michigan and Pennsylvania and Trump wins Georgia, Arizona and Nevada, the outcome of Nebraska’s 2nd District could likely tip the balance and keep the race from ending in a 269-269 tie. (In such a scenario, the House of Representatives would decide the winner.)

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“Despite vote count, Nebraska lawmakers begin debate of winner-take-all election system”

Lincoln Journal-Star:

Nebraska lawmakers briefly started — and then stopped — debate Wednesday on legislation that would replace the state’s unique system for presidential elections with the winner-take-all model deployed in 48 other states.

Sen. Julie Slama of Dunbar filed an amendment Wednesday to an unrelated bill that, if approved and made law, would eliminate the state’s system for presidential elections that allowed Joe Biden and Barack Obama to each pick up a single electoral vote in the state in 2020 and 2008, respectively.

The move came one day after former President Donald Trump and Nebraska Gov. Jim Pillen called on Republican lawmakers in the state’s formally nonpartisan Legislature to pass legislation returning Nebraska to a winner-take-all system….

[McDonnell’s] opposition combined with the political realities of the 49-member Legislature — made up of 32 other Republicans, 15 registered Democrats and one nonpartisan progressive — suggests the legislation still does not have enough to support to overcome the filibuster it will inevitably face, one that looms with six days left in this year’s legislative session.

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“Trump and Nebraska governor push to deny Biden a crucial electoral vote”

Dave Weigel for Semafor:

Donald Trump and Nebraska Gov. Jim Pillen endorsed legislation that would take Omaha’s potentially decisive electoral vote out of play for Democrats, hours after conservative activist Charlie Kirk’s Tuesday X post suggesting it.

In just 200 words, Kirk urged Republicans to repeal the state’s 1991 law that assigned two electors to the winner of the state, and one for each of its three congressional districts. Republicans easily carried Nebraska in every subsequent election, but in 2008 and 2020, the Omaha-based 2nd District voted Democratic.

“Nebraskans should call their legislators and their governor to demand their state stop pointlessly giving strength to their political enemies,” wrote Kirk.

Five hours and 10 minutes later, Pillen put out a statement supporting a bill that would convert the state to a winner-take all system in November. Donald Trump weighed in early Tuesday evening, praising Pillen’s “very smart letter” in a Truth Social post.

The district has drawn special attention from election observers this year because of the unusually high chance of it playing tiebreaker in a close race between Trump and President Biden.

If Biden lost only Arizona, Georgia, and Nevada from his 2020 column, he would win the electoral college 270-268; if Nebraska gave all five electors to Trump, the tied 269-269 election would be decided by the incoming House’s state delegations, where Republicans currently hold an advantage….

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No Labels Leader Floats Insane “Contingent Election” Scenario

Just wow via NYT:

No Labels, the group that for months has pledged to run a centrist presidential ticket in the event of a rematch between President Biden and former President Donald J. Trump, is running out of time to recruit a standard-bearer after a string of rejections.

With a number of prominent prospective candidates saying no thanks in recent months, some No Labels members and leaders have grown frustrated with the failure to advance a ticket, according to two people involved with the group and notes provided to The New York Times from a recent video meeting of No Labels delegates.

Still, the group’s leadership continues to hold out hope for November, even as the possibility of outright defeating both Mr. Biden and Mr. Trump seems increasingly remote. Leaders have promoted a far-fetched scenario in which the group could play the role of power broker in the general election if neither major-party candidate reaches an outright majority.

As the group charts a path forward, deadlines to get on state ballots are approaching….

Later in Tuesday’s video conference, Mr. Davis walked the group through a scenario in which a No Labels ticket could win several states in the general election, depriving Mr. Biden and Mr. Trump of the 270 electoral college votes required to win.

Such an outcome would prompt a contingent election — a constitutional provision by which the president is chosen by the House of Representatives, and the vice president by the Senate. Such a scenario has not occurred since the 1800s.

In Mr. Davis’s telling, representatives of a major party might opt for the No Labels candidate over the other party’s candidate. In the interview, Mr. Davis said he had discussed the matter on the call to address concerns among delegates about the possibility. He also said Mr. Biden was inviting such a scenario by, in Mr. Davis’s view, framing his campaign as an effort purely to stop Mr. Trump.

“It seems to me Biden is more interested in stopping Trump than anything else,” Mr. Davis said. “Funny things happen. That’s all I can say.”

A contingent election would be a “mind-boggling disaster,” said William Ewald, a constitutional legal scholar at Carey Law School at the University of Pennsylvania. “In an election in the present political climate, whoever won, there would be people rioting in the streets, and not figuratively.”

On Tuesday’s video conference, Mr. Davis — once a fixture of the moderate Republican establishment that has been exiled by the forces aligned behind Mr. Trump — described how No Labels might intervene before the matter even made it to Congress.

In his scenario, so-called faithless electors from any number of states might trade their support for “policy concessions” brokered by No Labels.

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Fourteenth Amendment federalism over Electoral College federalism in Trump v. Anderson

This sentence, perhaps more than any other, in my judgment, drives the decision in Trump v. Anderson (and the unanimous consensus of the Supreme Court):

Because federal officers “‘owe their existence and functions to the united voice of the whole, not of a portion, of the people,’” powers over their election and qualifications must be specifically “delegated to, rather than reserved by, the States.” U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 803–804 (1995) (quoting 1 J. Story, Commentaries on the Constitution of the United States §627, p. 435 (3d ed. 1858)).

Continue reading Fourteenth Amendment federalism over Electoral College federalism in Trump v. Anderson
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“The President of the Senate, the Original Public Meaning of the Twelfth Amendment, and the Electoral Count Reform Act”

The Case Western Reserve Law Review has just published my article, “The President of the Senate, the Original Public Meaning of the Twelfth Amendment, and the Electoral Count Reform Act.” Here is the abstract:

When Congress convenes under the Twelfth Amendment and the votes of presidential electors are counted, there are three different responsibilities to consider. First, who presides over the joint session where counting takes place, and what is the role of that presiding officer? Second, who counts the electoral votes? Third, who resolves disputes about those electoral votes?

This Essay answers those questions. First, the presiding officer in the joint session is the President of the Senate, and she acts as any other presiding officer of a legislature. She initiates actions pursuant to precedent, parliamentary procedures, and the wishes of the chamber. And that means the chamber—here, the joint session—can constrain the President of the Senate as presiding officer. Congress did exactly that when it chose to further constrain the discretion of the President of the Senate in the Electoral Count Reform Act of 2022. Second, Congress counts electoral votes. The evidence in the text and structure of the Constitution and congressional practice before the ratification of the Twelfth Amendment supports this interpretation. Third, the power to resolve disputes runs with the power to count. And that means Congress also has the power to resolve disputes about presidential electors.

Separating these responsibilities is crucial because it can be too easy to conflate some of these activities, which in turn elides over the distinctions in responsibilities. When the presiding officer acts, she does so not to count votes, but to preside over the joint session and help it proceed according to the rules and precedents set by Congress. The actions she takes may resemble the substantive act of counting. But close scrutiny of the record reflects that the President of the Senate does not count, and has never counted, votes. That is because the power to count resides in Congress, where the Twelfth Amendment lodges that power.

This Essay begins by examining the text of Article II, specifically its Counting Clause. It argues that a change in verb voice in the clause removes the President of the Senate from the role of counting electoral votes. Part II then moves to the original public meaning of the Twelfth Amendment through an interpretation of congressional practices. Majorities of both houses of Congress in 1800 believed Congress had the substantive power to resolve disputes over electoral votes. These details give an important gloss to the Twelfth Amendment, which was ratified in 1804. Part III examines the structure of the Constitution. Crucially, the President of the Senate, not the Vice President, bears the responsibilities in the Twelfth Amendment. While these two terms are often used interchangeably, they are not interchangeable for purposes of understanding the separation of powers and the role of Congress. Part IV concludes with an examination of the newly enacted Electoral Count Reform Act. It identifies the major elements of the Act and it focuses on the Act’s decision to expressly narrow the responsibilities of the President of the Senate in the joint session where Congress counts electoral votes. Congress’s decision to define the role of the presiding officer is squarely within its constitutional authority.

The piece responds to some arguments made by Professors John Yoo and Robert Delahunty in the Case Western Reserve Law Review; and concerns raised by Professors Gary Lawson and Jack Beerman. It engages with recent work by Professor Joel Goldstein, and others. Portions are drawn from blogging here and from my Senate testimony regarding the Electoral Count Reform Act. Professor Jonathan Adler weighs in over at Volokh here.

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Near-unanimous Wisconsin Senate advances important bill responding to Electoral Count Reform Act

In December 2022, I blogged about how state legislatures needed to take a look at how their existing election codes fit with the Electoral Count Reform Act. In particular, “States should be working backwards from that deadline to determine if their canvass, audit, recount, and contest procedures are able to take place in this tight window.” I tracked some changes in May 2023 as they were pending in states.

Today, the Wisconsin Senate, by a 31-1 vote, passed a major overhaul of how its canvassing, certification, and recount procedures happen, SB 852. Below the jump are the provisions to show how much tighter the process will be–no more languishing recounts or challenges as the state experienced in 2016 and 2020 (if the bill is ultimately signed into law). It’s greatly encouraging to see bipartisan consensus to expedite election procedures in response to the ECRA, especially in a “swing state” like Wisconsin.

Continue reading Near-unanimous Wisconsin Senate advances important bill responding to Electoral Count Reform Act
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