Category Archives: electoral college

A positive bipartisan development

Paul Kane of The Washington Post tweets about a new bill, jointly sponsored by Rep. Rodney Davis and Rep. Abigail Spanberger, to deal with the problem of a presidential candidate dying during critical time periods in the Electoral College process. This is an issue that John Fortier and Rick Pildes, among others, have written about previously (including when then-President Trump was hospitalized with Covid). It will be worth watching what happens to this bill in Congress (and while we are on this topic, we should keep watching for the possibility of much-need bipartisan reform to the Electoral Count Act).

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Trump on tape about Jefferson & 1800 election

It’s fascinating to hear Trump talk about the historical example that Bruce Ackerman and David Fontana wrote about in their article, Thomas Jefferson Counts Himself into the Presidency. One could rehash how that precedent should be characterized (a point I consider in Ballot Battles) and why it’s inapposite to Pence’s situation in 2020. But it seems more relevant for present purposes to reflect on what’s inside Trump’s head, as revealed by his words and tone of voice, compared to the reality of the situation as it concerns both the popular vote and relevant Electoral College procedures applicable to the 2020 election. If one is trying to get a handle on Trump’s “Big Lie” and specifically the gap between Trump’s claim of a stolen election and the truth of Biden’s valid victory, this audio from Washington Post reporters Carol Leonnig and Philip Rucker, for their new book, is as good as place as any to start.

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“Electoral Votes Regularly Given”

I’ve posted a couple of brief items already, but I want to take a moment to join the other new contributors in thanking Rick for his kind invitation to join the Election Law Blog. This site has been an extremely valuable resource for me since I was a law student (!), and it’s a tremendous privilege to join so many thoughtful scholars in the field here.

I have a late-stage draft of an essay forthcoming in the Georgia Law Review entitled “Electoral Votes Regularly Given.” Here’s the abstract:

Every four years, Congress convenes to count presidential electoral votes. In recent years, members of Congress have objected or attempted to object to the counting of electoral votes on the ground that those votes were not “regularly given.” That language comes from the Electoral Count Act of 1887. But the phrase “regularly given” is a term of art, best understood as “cast pursuant to law.” It refers to controversies that arise after the appointment of presidential electors, when electors cast their votes and send them to Congress. Yet members of Congress have incorrectly used the objection to challenge an assortment of pre-appointment controversies that concern the underlying election itself. This Essay identifies the proper meaning of the phrase “regularly given,” articulates the narrow universe of appropriate objections within that phrase, and highlights why the failure to object with precision ignores constraints on congressional power.

I anticipate a great deal of academic and legislative interest in the Electoral Count Act ahead of the 2024 election, and I hope this essay offers a small but meaningful contribution toward those efforts.

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“The Obscure Law That Enabled Trump’s Subversion of the Electoral College”

Matt Ford for TNR:

Earlier this week, I had the opportunity to participate in a panel discussion about voting rights with two Democratic members of Congress, during which time I took the opportunity to draw their attention to a hitherto little-discussed law that played a big role in accelerating both President Donald Trump’s outlandish efforts to subvert the 2020 election: the Electoral Count Act of 1887, or ECA. Little did I know that days later, this law would find itself having a moment: in an interview with Isaac Chotiner of The New Yorker, election law expert Rick Hasen fixed his gaze on this law as he outlined his plan to shore up the integrity of our elections.

The attention is deserved. At the moment, the Democratic majority in Congress is deliberating two major bills on voting rights and electoral reform, the For the People Act and the John Lewis Voting Rights Advancement Act. Whether Democrats can muster enough support and overcome a filibuster to pass both or either bills remains to be seen. In either event, once the result is known, Congress should turn its attention to another urgent measure to stabilize American democracy: reforming the ECA.

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June 9 Event: “Should we amend or abolish the Electoral Count Act?”

This AEI event looks great:

The Electoral Count Act of 1887 was adopted to ensure Congress counted only valid slates of electors during a presidential election. But scholars and election experts have warned that it was poorly drafted and invited confusion.

The problems with this statute erupted in full view on January 6, 2021, when members of the House of Representatives and Senate challenged the electoral slates of two states. Some of these same legislators, along with President Donald Trump, asked Vice President Mike Pence not to certify these votes, which would have tipped the presidential election results from Joe Biden to Trump.

Please join AEI’s Kevin R. Kosar and a panel of scholars to discuss the Electoral Count Act and whether it can be improved through amendment or should be abolished.

LIVE Q&A: Submit questions to Elayne.Allen@aei.org or on Twitter with #AEIElectoralCountAct.

Agenda

10:00 AM
Introduction:
Kevin R. Kosar, Resident Scholar, AEI

10:05 AM
Discussion

Panelists:
John C. Fortier, Resident Scholar, AEI
Andrew C. McCarthy, Senior Fellow, National Review Institute
Matthew Seligman, Special Counsel, Campaign Legal Center

Moderator:
Kevin R. Kosar, Resident Scholar, AEI

10:45 AM
Q&A

11:00 AM
Adjournment

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“Opinion: How GOP rage at Liz Cheney makes a future stolen election more likely”

Important Greg Sargent in WaPo:

Rep. Liz Cheney’s fate appears sealed: Republicans are set to oust the Wyoming Republican as the No. 3 in the House GOP leadership, and will most likely replace her with Rep. Elise Stefanik of New York, whose loyalty to Donald Trump remains unquestioned.

This is being widely depicted as a battle over the past, and over Trump. Most accounts portray it as a sign that in today’s GOP, fealty to the former president is a bedrock requirement, denouncing his lies about 2020 has become unacceptable, and telling the truth about the Jan. 6 insurrection is disqualifying.

All that is true, but the forward-looking dimension to this story is getting lost. What also seems unavoidably at stake is that the GOP appears to be plunging headlong into a level of full-blown hostility to democracy that has deeply unsettling future ramifications….

This combination is toxic: Republicans are untethering themselves from any obligation to recognize future legitimate election outcomes, which will provide the rationale to overturn them, a freedom they are also effectively in process of appropriating. Cheney is insisting on a GOP future premised on a full repudiation of these tendencies, and getting punished for it.

Guess what: These same House Republicans might control the lower chamber when Congress is counting electors after the 2024 presidential election.

“We should start to very much worry about what Jan. 6, 2025, looks like,” Edward Foley, a renowned election law scholar and a Post contributing columnist, told me.

Imagine a 2024 election decided in one state, where a GOP-controlled legislature sends electors for the GOP candidate in defiance of a close popular vote. The same House Republicans who punished Cheney — many of whom already voted against President Biden’s electors, but now control the House and have continued radicalizing — could vote to certify that slate.

There are many possible scenarios here — a lot would turn on whether the governor in that state was a Democrat, on what the Senate did, and on how the Supreme Court sorted out the mess.

But as Foley told me, it’s plausible that “you could have an outcome that is inconsistent with what the voters themselves wanted.” However it turned out, Foley added, the dispute itself “would be a major crisis.”

This places burdens on Democrats. Democratic strategist Simon Rosenberg told me that this obliges Democrats to level with voters about the threat Republicans pose to democratic stability.

“If Cheney is ousted, Democrats will have to make the radicalization of the GOP a major part of the 2022 conversation,” Rosenberg said.

And as elections scholar Rick Hasen told me, Democrats should try to get patriotic Republicans to support revisions to the Electoral Count Act, to make it “harder for a legislature to send a separate slate when there was no problem with how the election was run.”

Cheney’s ouster should prompt this, along with a much greater public and media focus on the brute reality of the GOP’s fundamental turn away from democracy.

“The core component of the democratic process is that we count the votes as cast,” Foley told me. The punishing of Cheney, Foley concluded, suggests that the Republican Party might be institutionally “abandoning the very essence of democracy.”

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Feb. 12 Event: “After the people vote: A book event with John C. Fortier”

This looks great:

Election Day is just the beginning of a long and complex process to count, certify, and ultimately inaugurate the next president of the United States. The fourth edition of “After the People Vote: A Guide to the Electoral College” (AEI Press, 2020) outlines the procedures that are set in motion after the polls close for the November general election. Edited by AEI’s John C. Fortier with chapters by AEI’s Karlyn Bowman and Norman J. Ornstein and other experts on the Electoral College, the book explores the mechanisms behind this uniquely American institution, including the processes for selecting electors, counting electoral votes, resolving disputes, and handling office vacancies.

Please join us for a discussion about the Electoral College and its future in American politics, with AEI’s Karlyn Bowman, John C. Fortier, and Adam J. White and the University of Iowa’s Derek T. Muller.

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Arizona Legislator (and Spouse of AZ Supreme Court Justice) Introduces Bill That Would Allow State Legislature to Overturn Voters’ Choice for President

Oh my:

Republican legislators, still steamed about Joe Biden winning Arizona, have been furiously scheming various ways to make it more difficult for people to vote.

There’s a bill that would allow only the most faithful party voters to automatically get early ballots and one that would require early voters to get their signatures notarized. There’s even a bill to all but eliminate early ballots, given the convenience they provide and their role in propelling Biden to victory.

It’s all very confusing and time consuming to keep track of the assorted schemes by which our leaders hope to rein in who is voting (and thus who is winning).

Now comes state Rep. Shawnna Bolick, R-Phoenix, who has figured out a way to cut through all the fog — basically by eliminating the need for presidential elections.

House Bill 2720 would allow the Legislature to veto your vote.

I am not kidding….

Bolick is proposing that our leaders be allowed to override the state’s certification of election results and appoint presidential electors of their own choosing.

“The Legislature retains its legislative authority regarding the office of presidential elector and by majority vote at any time before presidential inauguration may revoke the secretary of state’s issuance or certification of a presidential elector’s certificate of election,” the bill says.

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My Biggest Fear Post-Election: A Covid-Related Death or Incapacitation of Biden Between December 14 and January 6

I did a lot of handholding on social media for all the people who were worried the courts or state legislatures were going to overturn the results of the election. I explained how unlikely those scenarios were and why.

But this one really worried me, and I didn’t want to emphasize it because there was really nothing to do about except hope for Biden’s good health: there are no good rules for what would have happened if Biden died after electors voted in their states on December 14 and Congress counted those votes on January 6.

See this Oct. 1 post of mine, when it was announced that Trump had contracted Covid, quoting Rick Pildes:

The President and First Lady reportedly tested positive for the coronavirus. As the New York Times notes, “Mr. Trump’s positive test result could pose immediate difficulties for the future of his campaign against former Vice President Joseph R. Biden Jr., his Democratic challenger, with just 33 days before the election on Nov. 3. Even if Mr. Trump, 74, remains asymptomatic, he will have to withdraw from the campaign trail and stay isolated in the White House for an unknown period of time. If he becomes sick, it could raise questions about whether he should remain on the ballot at all.”

And of course with the President having just attended the debate earlier this week with Joe Biden, there could be concerns about Biden’s health as well.

I wish everyone who has contracted this terrible disease a full and speedy recovery.

But as a matter of national importance we need to ask what would happen if one of the presidential candidates died or became incapacitated before election day. Rick Pildes and Joshua Tucker did a two part series on the different permutations of what could happen, but this seems to fall within the cracks. …

[Pildes:] But I can conjure up more complex scenarios. Remember, Congress ultimately “counts” the electors’ votes. Say Candidate A wins in State X, and then dies — but State X’s legislature strongly opposes Candidate A’s vice-presidential choice. One could imagine that state legislature appointing a new slate of electors committed to voting for a different candidate for president. It is unclear if states can constitutionally do this. We also don’t know if courts would get involved to decide that issue. Moreover, since Congress ultimately decides which electors’ votes to count, Congress might become a central player and decide what counts as a valid electoral vote in the various circumstances this scenario might unleash.

Add this to the list of things we need to fix before the next election.

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“Pence Said to Have Told Trump He Lacks Power to Change Election Result”

NYT:

Vice President Mike Pence told President Trump on Tuesday that he did not believe he had the power to block congressional certification of Joseph R. Biden Jr.’s victory in the presidential election despite Mr. Trump’s baseless insistence that he did, people briefed on the conversation said.

Mr. Pence’s message, delivered during his weekly lunch with the president, came hours after Mr. Trump further turned up the public pressure on the vice president to do his bidding when Congress convenes Wednesday in a joint session to ratify Mr. Biden’s Electoral College win.

“The Vice President has the power to reject fraudulently chosen electors,” Mr. Trump wrote on Twitter on Tuesday morning, an inaccurate assertion that mischaracterized Mr. Pence’s largely formal and constitutionally prescribed role of presiding over the House and Senate as they receive and certify the electoral votes conveyed by the states and announcing the outcome.

Mr. Pence does not have the unilateral power to alter the results sent by the states to Congress.

More Republican senators came out on Tuesday against attempts to undermine the results, including Tim Scott of South Carolina and James M. Inhofe of Oklahoma, who said he viewed challenging any state’s certification as “a violation of my oath of office.”…

Mr. Pence has spent the past several days in a delicate dance, seeking at once to convey to the president that he does not have the authority to overturn the results of the election, while also placating the president to avoid a rift that could torpedo any hopes Mr. Pence has of running in 2024 as Mr. Trump’s loyal heir.

Even as he sought to make clear that he does not have the power Mr. Trump seems to think he has, Mr. Pence also indicated to the president that he would keep studying the issue up until the final hours before the joint session of Congress begins at 1 p.m. Wednesday, according to the people briefed on their conversation.

One option being considered, according to a person close to Mr. Trump, was having Mr. Pence acknowledge the president’s claims about election fraud in some form during one or more of the Senate debates about the results from particular states before the certification. Mr. Pence will preside over those debates.

In a statement issued late Tuesday night and inaccurately dated Jan. 5, 2020, Mr. Trump insisted the reporting about his discussion with Mr. Pence was “fake news.”

“He never said that,” the statement went on. “The Vice President and I are in total agreement that the Vice President has the power to act.”

Mr. Trump has been cajoling Mr. Pence in public and private to find a way to use his role on Wednesday to give credence to his unfounded claims — rejected by the states and in scores of court cases and backed by no evidence — that the election was stolen from him through widespread fraud.

The president has told several people privately that he would rather lose with people thinking it was stolen from him than that he simply lost, according to people familiar with his remarks.

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Ned Foley: “Why Pence can’t help save Trump”

New Ned in WaPo:

President Trump seems to believe that Vice President Pence could overturn the election results when he presides over the congressional counting of electoral votes on Wednesday.

Trump is wrong, but any attempt by Pence to intervene on behalf of himself and Trump, if it comes to that, would be a constitutional travesty. It won’t work, but it would set a dangerous precedent….

How long this will take remains unclear — because we don’t know how many states Republicans will object to. But with two hours of debate permitted for each objection, plus the time it takes for moving between the joint session and separate debates and votes in each chamber, the whole process could stretch well into Thursday.

Could Pence introduce another monkey wrench, perhaps by presenting “rival” packages of electoral votes for some states? Any such rival slates of electors lack any official pedigree and should be discarded, as required by the law. But Pence — if he is inclined to do Trump’s bidding — might try to force Congress to debate the official and unofficial packages simultaneously. Either way, the two chambers control the outcome; it’s just a question of how to get there.

The remaining wild card would be for Pence to try to make the unconstitutional move of ordering electoral votes for Biden disqualified. The two chambers separately can vote to overrule him. If Pence then says that he is disregarding their action and asserting his supposed power as president of the Senate, the Senate can insist upon its right as a parliamentary body to control the conduct of its presiding officer.

As a last resort, Congress could suspend the counting of electoral votes until Pence relents and abides by its decision. In that extraordinary case, Pence’s term would still end at noon on Jan. 20. The counting would resume with the Senate’s president pro tempore in the chair. Messy, yes, but Biden still would become president.

In this way, Congress can withstand whatever Trump and his allies — including, potentially, Pence — might do in a last-ditch effort to subvert the election.

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“Pence’s Choice: Side With the Constitution or His Boss”

Annie Karni and Maggie Haberman in the NYT:

As president of the Senate, Mr. Pence is expected to preside over the pro forma certification of the Electoral College vote count in front of a joint session of Congress. It is a constitutionally prescribed, televised moment in which Mr. Pence will name the winner of the 2020 presidential election, Joseph R. Biden Jr.

It is also a moment some of Mr. Pence’s advisers have been bracing themselves for ever since the president lost the election and stepped up his baseless claims of widespread voter fraud. There is no chance of Mr. Pence not being there, people close to him said. Mr. Pence’s aides have told people that they view the vice president’s role as largely ceremonial.

“I know we all have got our doubts about the last election,” Mr. Pence said Monday in Georgia, attempting to assuage Trump supporters. “I want to assure you that I share the concerns of millions of Americans about voting irregularities. I promise you, come this Wednesday, we will have our day in Congress.”

It was not clear, perhaps by design, what he meant. Mr. Pence does not have unilateral power to affect the outcome of Wednesday’s proceedings. But he has carefully tried to look like he is loyally following the president’s lead even as he goes through a process that is expected to end with him reading out a declaration that Mr. Biden is the winner….

On Monday, after Mr. Pence returned from Georgia, the vice president and Mr. Trump were expected to hear a last-minute pitch at the White House from John Eastman, another Trump lawyer. Mr. Pence also met with Senate parliamentarians for hours on Sunday to prepare himself and the president for what he would say while on the Senate floor.

The fact that Mr. Pence’s role is almost entirely scripted by those parliamentarians is not expected to ease a rare moment of tension between himself and the president, who has come to believe Mr. Pence’s role will be akin to that of chief justice, an arbiter who plays a role in the outcome. In reality, it will be more akin to the presenter opening the Academy Award envelope and reading the name of the movie that won Best Picture, with no say in determining the winner….

One person close to Mr. Pence described Wednesday’s duties as gut-wrenching, saying that he would need to balance the president’s misguided beliefs about government with his own years of preaching deference to the Constitution.

Members of the vice president’s circle expect that Mr. Pence will follow the rules while on the Senate floor and play his ceremonial role as scripted, aides said. But after that, he will have to compensate by showing his fealty to Mr. Trump.

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