4 November: Where we are

We (EqualCitizens and a bunch of HLS law students) spent an extraordinary amount of time working through just what might happen if the election was close. We prayed the election would not be close, especially if Congress remains divided. Our prayers were not answered.

I’m hopeful that this gets resolved quickly, and in the most boring way possible. But it is critically important that people understand how things could go sideways, and what the arguments either way could be. We have a website that gathers a bunch of relevant information about what might happens. And we’ve done a 10 part podcast that works through each stage.

We’re beyond Episode 1 (introduction) and 2 (the Red Mirage). For critical historical context, you should listen to Episode 3, reviewing 3 historical examples of state recounts, pointing ultimately to the most important forgotten bit of presidential history — Hawaii, 1960. Hawaii shows why there should be no rush here. Van Jones and I have an essay on CNN.COM that explains the story.

The scariest scenario is not one anyone is openly discussing just now — states appointing an alternative slate of electors. As we explain in Episode 4 and 6, there’s tons of ambiguous authority suggesting a legislature might have that power. (I’ll be presenting an argument why, after Chiafalo, they don’t. Stay tuned.) But the critical point to see is that game could only matter in Arizona and Georgia (assuming it goes for Biden). The governor in each state can control which slate gets counted. Those are the two Red States with a Republican governor that might cause trouble.

North Carolina is an interesting alternative. That state has a statute that expressly gives first the legislature (if it is in session) and then the governor the power to pick a slate if the voters’ slate has not been determined either before the safe harbor (for the Legislature) or the vote in the College (for the Governor). But the Republican legislature can only act if it is in session (it is currently not) and it takes a 3/5ths vote to call them back into session. The Democratic Governor, however, would have the power to select a slate, if the count/recount/contest process is not completed by December 13. Stay tuned.

Episode 5 explains what will happen on December 14, when the electors vote. Episode 7, if a candidate dies before December 14. Episode 8 explains what happens if no one gets a majority on December 14. Episode 9 points to anxiety about the power of the VP. And Episode 10 (“Jumping the shark”) reviews some crazy (or not so crazy) scenarios.

I hope to keep this diary daily, as we work through what’s happening. Stay tuned.

Written by

law professor, activist.

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