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Wednesday, December 16, 2020

Fake electors

If the Trump presidency began with alternative facts, it ends with alternative electors: Uncertified Trump would-be electors who got together, voted for Trump, and sent their results to the archive to be opened in Congress on January 6. None of these actions have any basis in law. Michael Dorf explains that the lack of legal basis might not matter, while Neil Buchanan explains how some stupid mischief could play out without success on January 6, which may explain why Mitch McConnell has discovered his limit on cravenness.

But let me add one more wrinkle combining the posts. Neil argues that one reading of the Electoral Count Act is that Congress cannot reject a slat of electors unless there is a competing slate purporting to be properly appointed. Neil argues that simply rejecting the Biden electors would not create a path to Trump becoming President, because the rejection would not be of their votes but of their appointment as electors. So Congress could not subtract 73 electors (MI/PA/AZ/GA/WI) from Biden's 306, drop him to 233, and call for a contingency election; the 73 would be dropped from 538, giving Biden 233/465 and a one-vote majority. In other words, it is not enough to carve 73 votes from Biden; they need to shift votes to Trump.

This is where the "alternate" Trump electors (whom Dorf analogizes to the French citizens taking the "Tennis Court Oath" in 1789) come in. Although lacking a fig leaf of legal authority or state support (despite what Sidney Powell apparently represented to SCOTUS), they actually exercise as much authority as force and other actors are willing to accord them. Now there is an alternative slate of electors that Republicans in Congress could recognize, despite the lack of meaningful authority; instead of 306-232 Biden, it is 305-233 Trump. Note, again, no House contingency election; Trump wins outright.

Finally, Jermey Mayer offers a final nightmare in which congressional Republicans drag things out by contesting and debating every vote, then declare that there is no electoral college winner, triggering contingency elections. Steve Vladeck explains why this cannot work: There cannot be a contingency election unless Congress agrees that no one received a majority, which cannot occur unless Congress rejects--and replaces--some Biden votes. Delaying certifying Biden's win also delays certifying the absence of a majority winner. And, Steve goes on, if they delay until noon on January 20, Nancy Pelosi becomes acting president.

Mayer's hypothesis shows a problem with using shorthand in lieu of text and procedure, something I try to explain to my students. Mayer says "The Constitution specifies that if there is no Electoral College winner, the Senate chooses the vice president and the House picks the president." But that is not an accurate description of the text or process.  The 12th Amendment says, in relevant part, "the votes shall then be counted;-The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority," there will be contingency elections in the Senate and House. This requires more than Congress taking a long time to challenge votes. It requires Congress to do something--count and announce the results of that count. And a count, absent rejected votes or switched slates, will reveal a 306-232 Biden win. The text does not allow Congress to do nothing or to not count; inaction just runs the clock until no one shall have qualified as President or Vice President.

Note: None of this will happen, because Democrats control the House; this is all a parlor game. At the same time, if Democrats did not control the House, none of the legal niceties at work here would matter, because Republicans have shown themselves willing to do whatever they want. Which is the common them of both Neil's and Mike's posts.

Posted by Howard Wasserman on December 16, 2020 at 03:10 PM in Howard Wasserman, Law and Politics | Permalink

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