Category Archives: electoral college

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


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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On January 6, 2025

When Congress convenes to count electoral votes on January 6, 2025, it will face intense pressure. If the Supreme Court rejects Colorado’s effort to bar Donald Trump from the primary ballot, its path seems likely to leave the door open for Congress to act, in some fashion at some time. Rick H. has valiantly argued here and elsewhere that courts should foreclose the possibility of future meddling, however they choose to do so; and it’s the gist of the Foley-Ginsberg-Hasen brief in Trump v. Anderson, too.

But. Supposing the Court does not close the door.

Continue reading On January 6, 2025
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“Here Is One Way to Steal the Presidential Election”

Lessig & Seligman NYT oped:

What happens when you stress-test America’s system for electing a president? How well does it hold up?

After the assault on the nation’s Capitol three years ago, we worked through every strategy we could imagine for subverting the popular will by manipulating the law. What we found surprised us. We determined that the most commonly discussed strategies — such as a state legislature picking a new slate of electors to the Electoral College — wouldn’t work because of impediments built into the Constitution. We also concluded that the most blatantly extreme strategies, such as a state canceling its election and selecting its electors directly, are politically unlikely.

The scenario we see as the most alarming was made possible by the Supreme Court itself. In a 2020 decision, the court held, in our reading, that state legislatures have the power to direct electors on how to cast their electoral votes. And this opens the door to what we think is the most dangerous strategy: that a legislature would pass a law that directs electors to vote for the candidate the legislature picks.

The question now is whether there is any way to close that loophole before a stolen election slides through.

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“Trump’s campaign guided filing of Michigan’s false electors certificate, emails show”

Craig Mauger for the Detroit News:

Then-President Donald Trump’s campaign directly orchestrated the filing of a certificate, signed by 16 Michigan Republicans, that falsely claimed he won the state’s 2020 election, according to internal campaign emails obtained by The Detroit News.

The documents, which have become part of Attorney General Dana Nessel’s ongoing investigation into the slate of false electors, showed that Trump’s campaign staff helped coordinate the Republicans’ gathering inside state party headquarters on Dec. 14, 2020. Then, Trump’s team prepared the official mailing of the false certificate to Vice President Mike Pence and the National Archives, according to the emails.

Later, when it was unclear whether the Michigan and Wisconsin certificates would make it to Washington, D.C., in time for the counting of electoral votes on Jan. 6, 2021, Trump supporters, along with campaign employees, developed and executed a plan to fly the certificates there themselves.

The apparent objective was to bolster claims that the November 2020 presidential election was “rigged” and ultimately “void the results favoring” Democrat Joe Biden, wrote lawyer Kenneth Chesebro, who helped create the electors plan, in a Jan. 1, 2021, email to Boris Epshteyn, a top Trump adviser….

“Alternatively, if Biden is simply held to under 270 by virtue of electoral votes not being counted (even though ‘appointed’), or by virtue of a switch to legislature-certified electors, then the election gets thrown to the House,” lawyer John Eastman, who was assisting the Trump campaign, wrote in another email on Jan. 1, 2021. “If the Republicans there hold true and vote with their state delegations, Trump should win a bare majority of the states.”…

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“Exclusive: Recordings describe 2020 Oval Office photo-op where Trump was briefed on fake electors and January 6”

Marshall Cohen at CNN:

Before a group of supportive lawyers entered the Oval Office for a photo-op with then-President Donald Trump in December 2020, they were given a clear instruction, according to one attendee: Don’t get Trump’s hopes up about overturning the election.

One attorney, Jim Troupis, toed the line. He’d just finished leading Trump’s failed election challenge in Wisconsin, and bluntly told the president it was over in that state.

But when the conversation shifted to Arizona, attorney Kenneth Chesebro deviated from the plan. He told Trump he could still win – and explained how the “alternate electors” he helped assemble in Arizona and six other states gave Trump an opening to continue contesting the election until Congress certified the results on January 6, 2021.

Chesebro’s optimistic comments immediately created problems by apparently giving Trump renewed hope that he could still somehow stay in office. Former RNC chairman Reince Priebus left the meeting “extremely concerned” about the January 6 conversation. Priebus, a Wisconsin native who served as Trump’s first chief of staff, later warned Troupis and Chesebro not to tell anyone about what happened.

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“Trump campaign recognized legal risks of false electors, still went forward”

Craig Mauger in the Detroit News:

Top advisers within Donald Trump’s campaign were aware of concerns in early December 2020 that criminal charges could result from submitting certificates falsely claiming the Republican won battleground states like Michigan that he had actually lost, according to documents obtained by The Detroit News.

The emails and text messages among campaign officials and volunteers showed supporters of Trump’s bid to overturn the 2020 presidential election worked to ease worries about potential prosecution in Pennsylvania and New Mexico. But they declined to act on the concerns in Michigan, Arizona, Georgia, Nevada and Wisconsin, according to the records from a lawyer who aided the Trump campaign.

. . .

“Mike, I think the language at the start of the certificate should be changed in all the states,” Chesebro wrote in a text message to Roman on Dec. 12, 2020, the day of the conference call. “Let’s look at the language carefully.”

“I don’t,” replied Roman, the Trump campaign’s director of election day operations.

“I can help with drafting in a couple hours,” Chesebro then messaged.

Roman responded, “F— these guys.”

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