I’m honored to participate in the NYU Democracy Project, and offer this entry, “America’s Recount Addiction.” It begins:
America has a recount problem. State recount laws too often invite costly, unnecessary delays that undermine confidence in elections without changing outcomes. Losing candidates prolong the contest and sell false hope in fundraising pleas. States should amend their laws to significantly narrow the circumstances in which recounts take place.
Former Vice President Dick Cheney has died at the age of 84. His legacy is significant in a range of domains, but I wanted to recount four small election law anecdotes about him.
First, Cheney was named George W. Bush’s vice presidential nominee in the summer of 2000. Both were inhabitants of Texas. Cheney quickly established inhabitancy in Wyoming on account of the Twelfth Amendment: “The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves . . . .” Voters sued to block Texas’s electors from casting votes for Bush and Cheney. A federal court in Jones v. Bush found that the voters lacked standing, but also that “Secretary Cheney has been at some point since July 21, 2000, or will be on December 18, 2000, an inhabitant of the state of Texas.” The case was decided December 1, 2000, and the Supreme Court ultimately denied certiorari on January 5, 2001–by then, of course, other legal events had eclipsed it in the 2000 presidential election.
Second, Cheney’s autobiography In My Time discloses an incident in 2001 about possible succession difficulties involving the vice president. There was no mechanism to remove a vice president unable to discharge his duties (absent, I suppose, impeachment). And the Twenty-Fifth Amendment requires the Vice President to participate in a determination of an inability of the President to discharge the duties of office, and the Vice President would then assume the duties of the President. If Cheney–who had heart problems–were incapacitated, he might stand in the way of a removal of a president unable to discharge his duties, or become an incapacitated acting president. So Cheney drafted a resignation letter for Bush to accept if such a situation arose.
Third, Cheney pressed for recognition of the role of the Vice President as President of the Senate in a more formal way, even refusing certain executive-branch disclosures because of his argument that some of his functions were in the legislative branch. (It prompted this reprimand from then-Senator Joe Biden in the 2008 vice presidential debate: “Vice President Cheney has been the most dangerous vice president we’ve had probably in American history. The idea he doesn’t realize that Article I [sic] of the Constitution defines the role of the vice president of the United States, that’s the Executive Branch.”) Cheney proved prescient: when former Vice President Mike Pence faced litigation over communications surrounding his role presiding over the counting of electoral votes on January 6, 2021, Pence argued some of his communications were protected by legislative privilege–and a federal court approved (in part) that view. As Politico put it, “Secret Pence ruling breaks new ground for vice presidency.”
Fourth, in 2005, Cheney faced the first objection to the counting of electoral votes since 1969 that had the support of both a member of the House and a member of the Senate. Cheney followed the Parliamentarian’s script perfectly. Rather than try to dispute the validity of the objection to counting Ohio’s electoral votes, Cheney approached the objection as ministerial in nature and deferred to the houses of Congress to resolve under the Electoral Count Act, which ultimately voted to reject the objections. Cheney’s approach was mirrored by Pence on January 6, 2021–the second and third such objections since 1969.
On the eve of the government shutdown, the U.S. Election Assistance Commission (EAC) quietly posted a press release to its website. While the announcement didn’t spark much notice, it could result in severe consequences for future elections.
And it’s causing concern that the commission — a bipartisan body whose mission is to help states administer elections more effectively — is taking its orders from President Donald Trump. That kind of partisanship and capitulation could pose a serious threat to the midterms.
The press release said the EAC met with the voting system manufacturers to initiate a formal review of equipment running commercial software that has reached “end-of-life” for “potential decommissioning.” The bipartisan quartet of commissioners included a statement boasting that “[r]emoving systems from active certification” would improve the sustainability of election technology. In other words, the EAC is taking steps to decertify election equipment that uses old software that no longer receives security updates. …
Across New Jersey, bomb threats at multiple polling locations have prompted closures and relocations today.
Attorney General Matthew Platkin says law enforcement responded to emailed threats at polling places in seven New Jersey counties and secured each location.
He says some of these polling locations have already reopened to the public, while at others, voters have been directed to a nearby polling location to cast their ballot. “Voters should continue to have confidence that they can cast their ballot without fear of intimidation, and we will continue to work tirelessly to ensure a free, fair, and secure election. Make no mistake: We will not tolerate any attempts to interfere with our elections, and we will swiftly hold accountable anyone who seeks to interfere with the safety or security of our electoral process.”…
Threats have been sent via email to the following locations:
Great lineup for this event at the University of Wisconsin.