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Confused Electoral College Crises: Replying to Wirth/Rogers in Newsweek

Former Colorado Senator Tim Wirth and Newsweek’s Tom Rogers have an essay in Newsweek mapping a way for President Trump and the Republican Party effectively to steal the 2020 election. Wirth and Rogers are right that there is a possible crisis brewing. They are confused about its potential source.

At the core of their scenario is an assumption about “state legislatures.” As step 6 of their argument puts it, after identifying four swing states in which Republicans control both Houses in the legislature (Wisconsin, Pennsylvania, Arizona, and Michigan), they speculate:

Those state legislatures refuse to allow any Electoral College slate to be certified until the “national security” investigation is complete.

This assumes something that is not true: That “state legislatures” have anything to do with “certif[ying]” slates of electors. No doubt, legislatures set the rules by which electors are chosen. If the state is to get the benefit of Congress’ “safe harbor” provisions for counting their electors (and more on this below), those rules must be set before election day. If the legislature tries to change those rules, there’s a very strong argument that change would violate the Equal Protection Clause (though Bush v. Gore quotes a Senate report stating that “there is no doubt of the right of the legislature to resume the power [of selecting electors] at any time,” it also says “[h]aving once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another”; the best way to read the two together is to conclude that “at any time” means any time before the election). Even if it doesn’t violate the Constitution, Congress has declared itself free to ignore the votes of electors chosen by rules that have been changed after the election (or sort of — it’s complicated, and I’ll return to that complication below).

It is instead the state executive that certifies the electors to Congress. Every state has a law that specifies how that certification is to happen. (In Florida, Pennsylvania, and Arizona, it is the Secretary of State or Commonwealth that certifies; in Michigan and Wisconsin, it is the Governor.) Congress has a law directing when that certification is to be made. Those certified electors are then the people who are to vote on who is to become President on “first Monday after the second Wednesday” in December. That date this year is December 14.

So the real question that the Wirth/Rogers scenario frames is whether state executives — either Secretaries of State or Governors, depending upon state law—could ever “refuse to certify” because of alleged foreign involvement in the election. No doubt, it is the age of Trump: Anything is possible. But three of the four states that Wirth/Rogers identify (Wisconsin, Pennsylvania, and Michigan) have Democratic Governors. Nothing in their law requires the executive to “refuse to certify” a slate of electors because of alleged foreign involvement. And nothing in the law of politics would suggest that they would take such an extraordinary action against the vote of their own citizens and the interest of their own party. (Arizona does have a Republican governor, but as Dan Carpenter points out in an email, the Secretary of State is a Democrat.)

But in Florida, the Secretary of State and Governor and legislature are all Republican. So what if the Republicans in that state “refuse to certify” a slate of electors?

Here’s where the courts would enter the mix. But the question that they must answer is the same question that I’ve just framed: does state law give the executive any discretion about whether to certify electors.

The suggestion that it does is, to put it mildly, ironic. With my colleague Jason Harrow, in May we argued before the Supreme Court that the Constitution does expressly envision actors with discretion at the core of the process for selecting the President. Those actors are the Electors. But whether or not the Court agrees with us (we’ll likely know on Monday), the executives certifying electors have no discretion in these five states or in any other that I know of. These executives are—like Kim Davis, the County Clerk in Kentucky who refused to issue marriage licenses to same-sex couples—without discretion: They are directed by law to certify the slate of electors from the party that won the popular vote in their state. It would be odd, to say the least, to conclude that “electors” have no discretion, but that state executives directed by law as to what they “shall” do in fact do have discretion.

So what happens if these executives ignore the law and refuse to act?

Here’s where things get muddy. The Constitution separates the appointment of electors from the casting of “their votes.” Congress gets to set the time when Electors are appointed. Congress has set that time to be Election Day. Therefore, whether certified or not, on Election Day, the electors are appointed — by whatever method the state has selected (and all states have selected a popular election), however long it takes to determine who in fact prevailed on that day.

Unless the vote fails: Federal law also says that if the state has chosen an election as the way to select electors, and that election has “failed to make a choice on the day prescribed,” then “the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.” This language, however, is hopelessly ambiguous between the legislature setting that “manner” before the election or after the election. Either way, the law requires a determination that the voters have “failed to make a choice,” which is, by the assumptions of Wirth/Rogers, just not true. The voters would have made a choice; the concern is whether that choice was improperly influenced.

All this is not to say that all is safe with the system we have for selecting our President — especially if critical actors within that system are willing to act in bad faith. The Court has clearly suggested that the Constitution would permit Florida, for example, to cancel its election before Election Day, and appoint its electors directly. If the race tightens, and polls suggest Florida will decide it, the Republican politicians in Florida — at least according to federal law—would be free to decide the election for their people, and for the United States. Maybe the pandemic would give the legislature cover (“It’s too dangerous…:”). Regardless, there’s little in the law of federal elections that would block that act by the Florida legislature.

Likewise, if the Supreme Court rules against us in our electors’ cases, Chiafalo v. Washington, Baca v. Department of State, and upholds the automatic removal provisions that purport to govern how electors vote in at least Colorado and Washington: If, say, Biden wins with all the states that Clinton got, plus Wisconsin and Pennsylvania, then he’d have 279 electors in the College. If — God forbid—he then passed away before the electors vote, the automatic laws in Colorado and Washington would require that the electors vote for Biden even though he has passed. That then would force the election into the House of Representatives. How that House votes depends on the division of the parties. As Wirth/Rogers evince, that division could easily favor the Republicans, even though the nation had chosen a Democrat.

This scenario does raise an interesting ambiguity not addressed by Wirth/Rogers: Which House gets to decide? The current House, or the new House? Federal law plainly assumes it is the new House. But no court has ever really addressed whether Congress, through the Electoral Count Act, can actually bind future congresses. Bush v. Gore presumed as much. But there’s a substantial argument that that’s just not true. Ordinarily, one Congress has no power to bind a future Congress — absent a constitutional amendment. Why does the Congress that passed the Electoral Count Act have any power to bind the present Congress at all?

So consider the following nightmare scenario: Imagine again that Biden presumptively wins in the Electoral College, but for some reason — either the above scenario or some version of the Wirth/Rogers hypothetical—it looks like no one will have a majority in the College. And imagine that Democrats gain seats in the House, so that if the election went to the new House, the Democrat would plainly prevail.

What could Republicans do then?

First, McConnell could declare that he does not believe any Congress can bind any other Congress, so that any attempt to do so is, in his view, unconstitutional.

Second, McConnell could then inform the President of the Senate (Pence) that the opening of the certificates reporting the votes by electors will happen on Christmas.

Third, the certificates would be opened on Christmas, and no majority would be found.

Fourth, the House would then “choose immediately,” as the Twelfth Amendment directs, among the top three candidates, each state getting one vote.

Fifth, as Congress is constituted now, that means that the 26 Republican delegations could vote for the Republican. Donald Trump would then be reelected as President.

This is the real catastrophe to fear. I don’t think it is likely, though I’ll confess, I’m hopelessly naive about just how partisan our Congress is. But to stop this nightmare scenario would require the Court to declare that McConnell was wrong about which House gets to choose. The Court would have good reason to reach that conclusion — the long precedent of the new Congress choosing should be seen to “liquidate” any ambiguity within the text (Noel Canning), or alternatively, the Court could decide that one Congress can indeed bind another. But whether the Court acts on that good reason or not is a different question.

However, we should be clear about what isn’t true. Wirth and Rogers speak about the “deadline” that Bush v. Gore described for selecting electors. Section 5 of the Electoral Count Act is the source for that “deadline” language. But Section 5 doesn’t force the states to do anything. All that it promises is that if the states resolve the selection of their electors 6 days before the College votes and they do so on the basis of laws passed prior to the election, then Congress will presumptively accept the votes of those electors. The law says nothing about what happens if the state fails to meet that deadline — and neither could it. If the state is late in selecting, the state is late. And though Congress has been extremely forgiving across its history — only once has it declined to count the votes of state-certified electors, and that was when those electors voted for someone who had died—there is nothing that should stop Congress from counting an elector selected after the §5 deadline. It did so in 1961 with votes from Hawaii. There is no reason it couldn’t do so again, at least if the electors are certified before the College votes.

Finally, it is interesting to note—I write this behind a veil of ignorance because as of today, the Court has not resolved what the status of the electors is—that if the Court decides that Electors have no discretion, then we will have effectively forced the system for selecting the President into an exclusively partisan process. Electors, of course, are also partisan appointees, but at least in their history, we have seen them act in a non-partisan way—including in 2016 when the Democratic electors who voted contrary to their pledge did so to enable a different Republican to be presented to the House. But if electors are mere cogs, and there is no majority in the College, then it is a presumptively partisan Congress that will ultimately choose the President through a simply partisan vote.

If there is any idea that we should begin to nurture now, it is the idea that it would be outrageous for any member of Congress to vote in a partisan way if that decision indeed devolves upon the House. On the contrary, if the House has the choice, every member of the House should vote as the nation has voted. The result should be unanimous, as a clear backup to a failure in the College. Gone should be the idea that a document crafted assuming there would be no parties should now be interpreted to permit a solely partisan process regardless of the public’s will. I am happy to acknowledge openly that if a fair count of the national vote supports a Republican, but that the College fails to achieve a majority, then every Democrat in Congress should vote for that Republican. Republicans should have the courage to make the equivalent pledge as well.

And it might also be good to get McConnel to be clear right now about whether he thinks it is clear that the Electoral Count Act binds this Congress. Not that inconsistency has constrained the Majority Leader before—after all, he swore an oath to be “impartial” in the trial of the President after declaring that he could not be “impartial.” But it is important to assure that lawlessness be well marked if future lawlessness is to be avoided.

law professor, activist.

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