“A clever plan to foil a 2024 coup attempt quietly advances”

Greg Sargent of the Washington Post praises what he hopes and expects, based on he hears from two sources, will be in the Senate’s bipartisan Electoral Count Act reform bill. Assuming he’s correct about the bill’s content–he acknowledged that Senator Collins’s spokesman warned him that his description contained “inaccuracies” and that “talks are fluid”–I largely share his optimism about a revised ECA’s capacity to deter electoral subversion perpetrated by state governors and legislatures. If (as he reports) a revised ECA obligates Congress to count the submission of electoral votes from a state that reflects the popular vote as determined by law, and requires Congress to ignore any contrary submission of electoral votes that would negate the judicially determined count of the popular vote, then no subversive governor or state legislature would be able to prevail in getting Congress to negate the state’s popular vote.

But his column is incorrect in one detail on how it characterizes the current ECA. [UPDATE: the column has been corrected, in light of this post, to fix its previous technical error in this one detail. The column previously stated]:

… imagine if a state legislature or governor claims widespread-but-fictional election fraud as a pretext … to appoint electors for the candidate who lost the popular vote.
If one chamber of Congress — say, the House of Representatives controlled by the same party those state actors and that candidate belong to — counts those electors, they’d become valid.

That’s even if the Senate objects to those electors. Under the current ECA, both chambers must object to electors to invalidate them. If one objects and the other counts them, they stand.

This is true only in the case of subversion by the governor, rather than the state legislature. According to 3 USC 15, if the two chambers of Congress divide over which of competing submissions of electoral votes from the same state is the submission entitled to be counted, then the submission certified by the governor is to prevail. Here’s the relevant sentence of the long and complicated sentence within 3 USC 15: “But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.” (I leave aside here the argument that despite this sentence, at least in certain circumstances, neither of the conflicting submissions from the same state is entitled to be counted under the totality of the convoluted provisions in 3 USC 15.) What this means, as I understand it, is that under the current ECA if a governor were to agree with the judicially determined count of the popular vote, the governor’s certification would prevail even if the state legislature subversively attempted to send an alternate submission of electoral votes to Congress; in that circumstances, it would take both chambers of Congress and not just one to effectuate the electoral subversion perpetrated in the state. [As indicated above, the column has now been updated to make clear that the governor’s participation is necessary to make any electoral subversion by a state legislature successful in a situation where the two chambers of Congress diverge in their treatment of the conflicting submissions from the same state.]

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