Larry Schwartzol at Lawfare.

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.

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.

Watch here about the National Popular Vote proposal.

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.

We had a great discussion the other night at the Hammer Museum, consponsored by the Safeguarding Democracy Project, featuring Joey Fishkin, Amanda Hollis-Brusky, and Derek Muller (I moderated.) Watch here.

In the immediate aftermath of passage of the Electoral Count Reform Act, I noted that state legislatures should look to update their laws surrounding the timing of elections and litigation disputes. And last year, I highlighted some states that have done so. But courts are taking the cue, too, in terms of their ability to expedite election litigation. Pennsylvania recently enacted new rules to speed up election disputes. And now Colorado has similar rules pending, as shared in this story over at Colorado Politics (the text is here). Ex ante rules for docket control are good tools for courts entering a contested election season.

Very much looking forward to moderating this event:

Hammer Forum

 Part of the series Hammer Forum: 2024 Presidential Election

Tuesday Oct 8, 2024 7:30 PM

Hammer Forums are made possible by the Rosenbloom Family. 

Co-presented with the Safeguarding Democracy Project at UCLA Law

Why does the United States use the Electoral College for choosing the President? Is the Electoral College a fair way to choose a President? What specific risks does the method for choosing electors pose for free and fair elections? How likely is the United States to adopt a national popular vote instead of the Electoral College? Moderated by Rick Hasen, UCLA Law. Panelists: Joey Fishkin, UCLA Law; Amanda Hollis-Brusky, Pomona College; Derek Muller, University of Notre Dame

Nate Cohn:

Ever since Donald J. Trump’s stunning victory in 2016 — when he lost the popular vote by almost three million votes but still triumphed with over 300 electoral votes — many who follow politics have believed Republicans hold an intractable advantage in the Electoral College.

But there’s growing evidence to support a surprising possibility: His once formidable advantage in the Electoral College is not as ironclad as many presumed. Instead, it might be shrinking.

According to The New York Times’s polling average, it does not seem that Kamala Harris will necessarily need to win the popular vote by much to prevail.

The simplest way to measure the advantage in the Electoral College is to take the difference between the national popular vote and the vote in the “tipping-point” state (the state that puts one candidate over the top in the Electoral College). Right now, Vice President Harris leads the polling in the national vote by 2.6 percentage points, and leads Wisconsin — the current tipping-point state — by 1.8 points, which makes Mr. Trump’s advantage less than a point.

By this measure, Mr. Trump’s advantage is only around one-fifth as large as it was four years ago, when he fared 3.8 points better nationally than in Wisconsin (the tipping-point state in 2020).

How is it possible?…