Alternative slates are voting: What this means

As reported by Rick Hasen at the Election Law Blog, Stephen Miller has now announced that alternative slates of electors are in fact voting in each of the swing states. Rick discounts the significance of this. I think he moves too quickly in reaching that happy conclusion.

The precedent is Hawaii, 1960. As Van Jones and I had written on CNN.com on November 4,

In 1960, Hawaii’s vote was incredibly close. On the first count, Nixon had beaten John F. Kennedy by 141 votes. On November 28, the acting governor certified a Republican slate of electors. They met on December 19 and cast their ballots for Nixon.

But a recount showed that, in fact, Kennedy had won the popular vote by an even closer margin of 115 votes. That recount had been completed on December 30, 11 days after the Republican electors from Hawaii had cast their votes for Nixon. Five days later, the governor sent Congress a new certification of electors, this time naming the Democratic electors as the electors properly chosen by Hawaii’s voters. That certification arrived in Congress on January 6, the day that Congress was to count the electoral votes. When then-Vice President Nixon, who the Constitution had set as the custodian of the electoral votes, began to “open all the certificates” as the Constitution directs him, and came to Hawaii in the list of states, he announced that there were two slates of electors from Hawaii, one Republican and one Democratic.

As with what Miller imagines with the swing states in 2020, Hawaii had two certifications. The question for Nixon was whether he would count that second certification, given after the electors were to have voted (especially since they were electoral votes for Kennedy, not for Nixon). But as we described,

The key — and this is the critical fact for 2020 as well — is that the Democratic slate had also met on December 19, and had also cast their ballots in the manner specified by the Constitution. When they voted, no one knew whether their votes would matter. But at least someone recognized that the only way their votes could matter was if they were cast on the day that Congress had set. History does not record who had that genius legal insight.

If this is what Miller is describing, then indeed, it remains possible for these swing state votes to shift. Miller is wrong about January 20 — the critical date is January 6, when Congress counts the vote. But if the certification in any of these states shifts before January 6, then under the precedent that Nixon established, the new certification would be counted.

Note, this is different from the “superpower theory of legislatures” that I’ve described before — what I’ve called the problem of “faithless legislatures”. On that theory, the legislature purportedly has the power to ignore the vote of the people, and pick a new slate of electors after election day. That, I’ve said, is unconstitutional, both because Congress has said when electors are to be “appointed” and because, following Chiafalo, if electors don’t have the power to ignore the people, state legislatures can’t either. (See the argument here and here.)

But this is different. Miller is describing a process by which the certification of who was elected on November 3 is corrected, not the appointment of a new slate made after the election. That leaves the question to the ordinary process (which has so far gone fully against Trump). But it leaves open the question of whether state courts will do something to trigger or authorize the latent power these alternative slates will now hold.

tl;dr: this won’t be over till January 6.

tl;dr, v2: I’m sorry.

law professor, activist.

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