The U.S.’s 133-year-old Law for Picking a President has a Provision that has Never been Needed to Settle a Disputed Election, since it Deals with a Situation that would Only happen after a Cascade of seemingly Improbable Events.
Election Law Experts warn that Congress would be Wise to Clarify the Provision before the Country potentially Faces this Worst-Case Scenario: A Full-Fledged Constitutional Crisis if there is No Clear Electoral College Winner on Inauguration Day on Jan. 20th, 2021.
The Provision, a Paragraph, a Political Scientist called “almost unintelligible” in the year after it was Passed, spells out how Congress should Count Electoral College Votes. The Problems Start if a State Submits Two Different Election Results and the House and Senate Clash on which Results should be Tallied. But if that does happen, there are Conflicting Interpretations of what the Law Requires Congress to do. It’s an Ambiguity that is the Achilles’ Heel of the Electoral College System and Congress’ Role in Counting Votes.
In One Reading backed by a Legal Analysis in 2004, Congress would Count the Electoral Slate Backed by the Governor of the State. In the Other Reading, backed by a Congressional Research Service Report from 2001, the State’s Electoral Votes would Not be Counted at all.
The Provision Remains Untested. Congress should Clarify the Provision. That’s particularly True because neither Party would know Ahead of Time whether the Clarification would Help or Hurt them in the Upcoming Election. Only One State has ever Submitted more than One Slate of Presidential Electors since the Electoral Count Act was Passed. That was Hawaii in the 1960 Election, and that State’s Votes didn't Determine the Outcome.
The Hawaii Governor First Certified the Appointment of Electors for Republican, Richard Nixon. Then, after a Recount that determined Democrat, John F. Kennedy, had Won the Hawaii Vote, the Governor Certified Kennedy as the Winner. But those Votes didn’t Matter in the Outcome and so were Counted without Controversy. When it came time for Congress to Count Hawaii’s Electoral Votes, Nixon, acting as Vice President and therefore President of the Senate and Presiding Officer over the Counting of Electoral Votes, suggested “without the intent of establishing a precedent” that the Kennedy Certification be Accepted so as “not to delay the further count of electoral votes.”
An Ad Hoc Group of 25 Legal Experts, Spearheaded by the Law School at the University of California, Irvine, included Concerns about the Section 15 Ambiguities in an Report about keeping the Public’s Confidence in the November Presidential Election. The Group assumed Congress would Fail to Clarify the Electoral Count Act ahead of time. So instead, it Recommended that Election Law Scholars establish a Strong Consensus on the Law ahead of the Election to “help reduce the extent to which such congressional contestation could spin out of control.”
In what Situation might a State send Congress Two Different Slates of Electors, and when might that even matter? Or Spin things Out of control?
A Swing State such as, Michigan, as a ready Example that seems more likely because of Trump’s Re-Election Effort and the Pandemic. It takes a few Steps to get there.
Imagine the Vote in Michigan comes in on Election Day with Trump Ahead, but there are still a Lot of Uncounted Absentee Ballots that either came in that day, were Postmarked that day but still Beat the Deadline, or there was a Change because of COVID-19 to Allow them to Arrive in the days following Election Day.
There could be a Historic Number of Mail-In Ballots because of the Pandemic. More States are Expanding Vote-by-Mail Opportunities for those who want to Avoid Crowded Polling Locations on Election Day, and Lawsuits across the Country are addressing the Timing of Counting Absentee Ballots.
Let’s say most of those Absentee Ballots are from Urban Centers, such as Detroit, with Heavy Democratic Contingents. Trump could start Claiming victory in Michigan based on his Lead in the Results from Polling Places, and raise Questions about the Legitimacy of the Absentee Ballots and the Potential for Fraud.
Trump already raised unsubstantiated claims of mail-in ballot fraud during the 2018 Florida governor election, and tweeted Wednesday that “large scale Mail-In Ballots” would be “a free for all on cheating, forgery and the theft of Ballots. Whoever cheated the most would win.” Then let’s say, in the Michigan example, that the Counting of Absentee Ballots after Election Day puts Democratic Candidate Joe Biden Ahead. In this Michigan Scenario, All of that could Lead to a Contested Election if the Results are Close.
The University of California, Irvine report states that “because many more ballots are likely to be cast by mail, and because mailed ballots are much more prone to disputation, basic math indicates that there is now an even greater chance that vote tallies will be contested.”
Michigan’s Democratic Secretary of State and Governor would Assign Electors based on the Popular Vote that Biden won. But the Republican-led Legislature, if it thinks that the Popular Vote was Fraudulent or otherwise Problematic, might Claim it has the Authority to Assign its Own Slate of Electors. In this Michigan Example then, Both Sets of Electors Meet and Send the Results for Congress to Tally. That’s when the Muddled Language of Section 15 might Kick-In. The Senate and House would then have to Split over which of the Two Counts to Accept.
After all of that, there’s still One more Precondition that would make any of it matter. The Electoral Votes from Michigan would have to make the Difference in the Outcome of the Presidential Race. Or, it could be a Combination of Michigan and Other States where this could happen, such as Pennsylvania. At that point, the Law’s Language is Unclear about whether Congress would Tally the Michigan Governor’s Electoral Slate, or whether Congress would Not Add Michigan to the Tally at all.
The Law was Created in the years after a Different Type of National Upheaval, One with Racial Conflict. During the Post-Civil War Reconstruction period, several Southern States had Conflicting and often Competing State Governmental Authorities with Unresolved and Unclear Lines of Jurisdiction. Several States Forwarded to Congress in 1876 Different and Competing Slates of Electors, which threw the Presidential Election into Confusion and Partisan Turmoil.
In a 131-page Law Review Article from 2004, “The Conscientious Congressman’s Guide to the Electoral Count Act of 1887,” Law Professor, Stephen A. Siegel, concluded that Partisanship will, uh, find a way.
The more Fundamental Problem with the Electoral Count System is that Congress already knows the Results of Each State so any Structure can be Manipulated by Partisans.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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