Today, the Wall Street Journal published an essay of mine criticizing the war on presidential electors. The tl;dr is this:
It is illegal for states to prosecute so-called “fake electors” and, more importantly, it is incredibly stupid. Electors absolutely must meet and cast their ballot whenever there is any possibility that they will be deemed to have been appointed on Election Day (which means, at a minimum, when there is ongoing litigation about the result). Any fear that the litigation will be baseless should be addressed by punishing the lawyers bringing the frivolous litigation, not the electors who gather to vote. Because if they don’t vote, not only will their vote be lost (since Congress on January 6 can only count ballots cast on Electors Day), but also, because if they don’t vote, litigation about the result will become moot and must end. The war on electors has therefore created the most obvious strategy for stealing a presidential election: If you’re ahead in a state but there’s litigation challenging your victory, just slow the litigation/recount till Electors Day, when you can then terrify the other side’s electors with threats of felony prosecutions for meeting and voting.
The essay references an expert report that I filed at the request of the Arizona defendants. That report is here. It is the third (pro bono) expert report I’ve submitted in these cases — Georgia and Wisconsin being the other two.
So why am I doing this?
Because this question needs to be addressed by some court sometime soon since it could create such a catastrophically unnecessary loss for the rightfully victorious presidential candidate.
There are so many ways in which the recount process could be delayed beyond Electors Day (or actually, the relevant day under the Electoral Count Reform Act is six days before Electors Day); it is insanity to create the impression (through felony prosecutions) that electors are not free to meet and vote on Electors Day, if there’s a chance they will be determined to represent the actual winner in a state.
But it is the nature of criminal prosecutions that they end as early as the lawyers can end them. So, never has a court had the chance to address this question — and catastrophically so, since we could be facing this issue in 6 months with nothing more to reference than the frenzied attack on “fake electors,” rallied to by everyone who wants to express hatred towards Trump.
I very much hope a court gets a chance to weigh in on this question soon. When it does, I hope it will recognize some Conlaw 101:
- Electors are “appointed” on Election Day.
- We’ve long recognized that we can’t actually tell which electors were appointed on Election Day until after Election Day because counting takes time and predictably includes challenges to the procedures, process, etc.
- Many have worked hard to improve the efficiency of the counting process — none more effectively than Protect Democracy—so that contests will be resolved 6 days before the electors are to vote.
- Nonetheless, it’s plainly possible (and always in one side’s partisan interest) that such counting will extend beyond Electors Day, such that, regardless of who has been declared what before Electors Day (like Nixon declared the winner in Hawaii before Electors Day in 1960), we can’t actually know who was “appointed” on Election Day unil after Electors Day.
- In such a case, electors should be constitutionally privileged to meet and cast their ballot on Electors Day, because (a) as electors, they are performing a federal function and so can’t be regulated by the state; (b) as electors, their vote on Electors Day is not within the scope of any congressional power to regulate.
- The Electoral Count Reform Act can blather on and on all it wants about what electors and states must do, but in the end, if electoral votes show up in Washington on January 6, having been cast on Electors Day and certified to represent the proper determination of which slate of electors was “appointed” on Election Day, Congress must count those votes.
And finally, for the record: if this issue recurs this year, and I again join others in defending the right of electors to meet and cast their ballot on Electors Day, even though they have not yet been certified by the governor, when the partisans scream “where were you when Trump electors were being attacked as ‘fake electors,” the answer will be: Here, defending the Trump electors, even while criticizing the legal theory of Trump’s lawyers and the completely baseless and illegal theory of Josh Hawley for why he was entitled to object on January 6.
This should not be a partisan question. It is a question about sane processes for giving people confidence that the winner is actually the winner. Do I believe that Donald Trump beat Joe Biden in 2020? Of course not. But I do believe that one of the reasons that view continues to survive is that so many of the processes in the states were truncated because of an ignorant view (supported by the ignorance on display in Bush v. Gore) that states were not free to take their time in resolving who actually was appointed on Election Day.
Presidential election law is complex and typically boring. But the damage done by lawyers with a partial understanding of this law has been incalculable. That damage began in 2000, when Gore’s lawyers pushed the idea (not supported in the text of Florida’s law) that elections must be resolved 6 days before Electors Day. It continued in 2020, when that view led too many state courts to find ways to ignore the (in my view, ultimately baseless) arguments that Trump made about why the results were wrong — thereby fueling continued skepticism about those results. And it has reached its highpoint in the ignorance displayed by the Court in Trump v. US, in the suggestion (despite Justice Barrett’s footnote 2) that the Constitution gives the president any role in his own reelection contest. (As I explained here, for example, it is just embarrassing to the profession that the Court repeated without comment the completely ignorant argument by Trump’s lawyers that Grant exercised his constitutional authority over the selection of presidential electors in 1872. This is the equivalent of the embarrassing laughing gas mistake the Court made when declaring that it (or, more accurately, its law clerks), rather than professional regulators at expert agencies, would police the science in agency regulations.
There is still time before this next election for lawyers, and journalists especially, to understand these complexities better. The first step is to remove the question from the morality play about Donald Trump. That step is critically necessary because the conventional wisdom about this area of law is just flat-out ignorant. I fear that ignorance will continue to have enormous costs.
