Justin Levitt‘s excellent piece earlier this election season, “Get Ready for the Scourge of Election Season: Electoral-Process Porn,” is well worth another read. That’s because a new round of paranoia about the 2024 election continues to spread.

There are a series of wild cases made that the 2024 election can be “thrown to the House of Representatives” with one weird trick: a state refusing to certify the vote.

Rachel Maddow started the most recent trend of stories on this in a New York Times piece, a piece later discovered to have so many errors it had a significant rewrite in the middle along with a correction appended to it. But that hasn’t stopped the doomcasters.

The authors of this piece at USNews wrongly make the claim, “If partisans in one key state were to halt the certification of votes, blocking either candidate from reaching the 270 Electoral College votes required to win, our next president could be selected by the next U.S. House of Representatives.”

More recently, Mother Jones parroted a claim by Stacey Abrams: “If there’s a lengthy dispute over the vote count, Georgia could miss the December 11 deadline for certifying its Electoral College results. If no candidate receives the 270 votes necessary to win the Electoral College as a result, the presidential election would be thrown to the House of Representatives, where Republicans control a majority of state House delegations, allowing them to swing the election to Trump.”

These scenarios are simply not true. There are potential concerns around certification, but throwing the election to the House is not one of them, and it certainly has nothing to do with the number 270.

First, if a state refuses to certify its results–an absurd hypothetical, which I’ll return to in a moment–the number of electoral votes needed to win an election changes. It’s no longer 270 votes. That’s because the Twelfth Amendment requires a candidate win a “majority of the whole number of electors appointed.” If the state doesn’t appoint any electors (i.e., does not certify any winning candidate), then the number to win a majority changes.

As I explained earlier:

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.

Suppose the winning candidate carried Wisconsin and won 278-260. If Wisconsin’s votes weren’t certified, the margin would be 268-260. A majority would be 265. And the winning candidate… would still win. In other words, refusing to certify does nothing to affect the outcome.

Now, two things could be true. First, if you refused to certify the results of an election, you could flip the result–but it wouldn’t send the election to the House. Suppose your candidate lost 270-268, and you decided to refuse to certify 6 electoral votes for the “winning” candidate. You would need just 267 votes out of 532 to win the election–and now you are at 268, while your losing opponent has dropped down to 264. So it is possible to “flip” the election. But to do so–without getting into the math–is that you have to double the margins. If you’re down 20, you actually need to “flip” 40 votes in order for the math to work. And second, it’s possible that refusing to certify results in a tie, which then sends the election to the House because no candidate has a majority.

But….

Second, it is not easy to just “refuse to certify” an election. As I make painstakingly clear in this Conversation piece, and as the underlying basis of this article makes clear, election officials who violate clear ministerial duties or risk missing state or federal deadlines can face swift judicial orders to certify the results–and if they refuse, courts can easily order the elections certified by someone else and deem them certified as if done by the election officials. You would need the election officials to have the backing of both the state judiciary and the federal judiciary–a monumental task if the certification is on arbitrary or pretextual bases, especially given the track record of the judiciary in these disputes over the last four years.

Third, the Mother Jones piece creates false impressions about the federal deadline. The author writes, “Georgia could miss the December 11 deadline for certifying its Electoral College results.” That is not Georgia’s deadline. That is the deadline for the executive to certify results, six days before the electors meet. (And of note: Georgia law requires certification well before December 11.) The Electoral Count Reform Act makes crystal clear that judicial relief concerning certification could come after this date:

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.

Again, a state would have to (1) miss its own internal deadlines, with the blessing of state courts; (2) have an executive miss the subsequent federal deadline; and (3) have the state and federal judiciaries approve of the executive refusing to issue a certificate of election. And even then, it does not mean the candidate loses for failing to reach 270–in many circumstances, the candidate still wins; and in only rarer circumstances could the election ostensibly appear to go to the loser or end in a tie that goes to the House.

It raises two more questions worth contemplating.

First, the ECRA is designed to create a legal obligation with a firm deadline precisely to induce states (and the judiciary) to ascertain a clear winner and to prevent vexatious litigation pending into late December and early January. Is more litigation deep into the election–including after the electors meet–the preferable result? Certainly not, and a reason why the ECRA set the deadlines it did.

Second, if this “strategy” is so foolproof, why has it never been used before? In previous elections, why didn’t a governor just fail to certify by January 7–after the counting of electoral votes? The gap between December 17 and January 7 is surely not so long that this “clever” strategy couldn’t have been employed years ago with a slightly longer delay.

The point being, the scenarios are unrealistic. And even when they are realistic, they do not end with an election being thrown to the House.