Rachel Maddow has a piece in the New York Times on the topic du jour of 2024 election commentary, here about certifying election results. (Other recent pieces in this oeuvre include Reuters and the Guardian.) I’ll just draw from an excerpt of the disaster-casting piece:

Then, local news headlines start to circulate. There are reports of unspecified “problems” in the vote in Fulton County. And in Gwinnett County. And in DeKalb, Coffee and Spalding Counties. Republican officials are refusing to certify the results in their counties. They say they are making “reasonable inquiries.”

As legal challenges wend through the courts, a wave of disinformation, confusion and propaganda swells, fueled by unproven claims that something is amiss in these Georgia counties, and also by similar noise — and possibly also certification refusals — in Michigan, Pennsylvania, New Mexico and Nevada. (All have seen local Republicans try the certification refusal ruse since 2020.)

Under recently revised federal law, each state has until Dec. 11 to send official, certified state results to Washington for the Electoral College count. But if a state doesn’t meet that deadline, then what?

The point of these certification refusals may not be to falsify or flip a result, but simply to prevent the emergence of one. If one or more states fail to produce official results, blocking any candidate from reaching 270 electoral votes, the 12th Amendment prescribes Gerald L.K. Smith’s dream scenario: a vote in the newly elected House of Representatives to determine the presidency.

As I’ve blogged, I don’t think the Georgia election rules will allow any election body to miss a deadline, & even if it’s a pretext for missing a certification deadline mandamus is readily available to correct. Additionally, of all of the local election officials who “tried” to refuse to certify election results since 2020, exactly zero have been successful–and exactly zero even missed the ultimate statutory deadline. It’s possible that changes in 2024, of course, but if we’re looking at past results, we might want to look at past success rates, too.

But Maddow also misreads the Electoral Count Reform Act. She is incorrect when she writes, “each state has until Dec. 11 to send official, certified state results to Washington for the Electoral College count.” That is not what the ECRA requires.

The ECRA states, “Not later than the date that is 6 days before the time fixed for the meeting of the electors, the executive of each State shall issue a certificate of ascertainment of appointment of electors . . . .” That deadline is placed on the executive, not the state itself.

She asks, “if a state doesn’t meet that deadline, then what?” Well, the ECRA helps answer that, too. The section continues, “Any certificate of ascertainment of appointment of electors required to be issued or revised by any State or Federal judicial relief granted prior to the date of the meeting of electors shall replace and supersede any other certificates submitted pursuant to this section.” That is, the ECRA anticipates that there may be disputes that miss the six-day window. Judicial relief that comes after that, but before the electors meet, is “conclusive in Congress,” as the ECRA explains elsewhere.

She continues, “If one or more states fail to produce official results, blocking any candidate from reaching 270 electoral votes . . . .” But that’s not right, either.

If a state fails to produce a certificate of election, the state has failed to “appoint” electors under the Twelfth Amendment. Put differently, you would no longer need 270 votes to win the presidency. You would need something else. Suppose, in some fanciful universe, Wisconsin failed to certify its election results and appoint 10 electors. (This has happened before, like in 1789, when New York failed to send any electors.) The total electors appointed would be 528, not 538. The total number to win would be 265, not 270. Unless we had votes cast for third-party candidates or a tie, someone would still have a majority. No election would be sent to the House.

The Twelfth Amendment and the ECRA help reduce some of the disaster scenarios for 2024. Of course, nothing can anticipate every circumstance. But we’re in better position than some disaster pieces suggest.