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Having exhausted all other options, Donald Trump and the die-hard supporters of “Stop the Steal” have settled on the notion of getting Congress to count alternative slates of electors from seven states — Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin — who cast their states’ votes for Trump despite certified popular vote totals showing Trump lost those states. Senior White House adviser Stephen Miller is among those publicly advocating this strategy:
Stephen Miller on Fox & Friends says "an alternative" group of electors is also voting today:
"As we speak, an alternate slate of electors in the contested states is going to vote and we are going to send those results to Congress."pic.twitter.com/5kIkfsbOFw
— Travis Akers (@travisakers) December 14, 2020
The “alternative electors” plot is less than meets the eye, as the alternative slates appear to be simply a contingency plan in case Trump is able to prevail in federal court cases between now and then, something he has thus far failed to do. There are six legal and political reasons why this strategy should and will fail if it is attempted:
Both the Constitution and federal law require electors to be chosen on a date set by Congress for their election. Every state chose to hold a popular vote to choose electors. Electors chosen six weeks later by ad hoc groups of Republican politicians are constitutionally illegitimate if those electors were in no way chosen by the people who voted on Election Day, or as part of an official post-election contest process sanctioned under preexisting state law.
None of the “alternative” electors has been appointed by any legitimate organ of state government, while all of the slates of popularly chosen electors have been certified by their respective state governors (or, in the case of D.C., the mayor). Most of the slates openly acknowledge that they will have no legitimacy unless a court rules in their favor.
Every state but Wisconsin settled on electors within the statutory “safe harbor” deadline under the Electoral Count Act of 1887, which under the law is conclusive if there is no other competing state-certified slate.
Even if Republicans were to force the issue to a vote and unanimously supported the president, the Democrats still control the House. Under the law, if the House and Senate disagree, the slates of electors certified by each state’s governor are counted.
Even if the Electoral Count Act is, arguably, unconstitutional, it would be up to Congress, not the courts, to decide that — which brings us back to the Democrats controlling the House. We would have a truly major constitutional crisis if the House declared Joe Biden the winner under the law, the Senate rejected the process as unconstitutional, and the Supreme Court refused to decide the question.
All of the above assumes that congressional Republicans will be lining up to join this kamikaze attack on the 2020 election, when all indications are that most of them want nothing to do with it.
When Are Electors Chosen?
Article II, Section 1 of the Constitution provides:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
That’s all the Constitution says about how electors are chosen; later amendments restricted various sorts of state discrimination in who could vote in a presidential election (by race, gender, and age), but it remains the case that a state has no constitutional obligation to select its electors in the first place by statewide popular vote. A number of states in the early republic chose electors without a popular vote (usually by vote of the state legislature); this was done most recently in Colorado in 1876, when the state was admitted to the union too late in the election year to organize a popular vote. Even today, two states (Maine and Nebraska) choose some of their electors by the popular vote of particular congressional districts, a method the Supreme Court blessed in 1892.
Congress, since 1845, has set a single date (the first Tuesday in November) to choose presidential electors. Having held a popular vote for that purpose on that date, states may not go back and pick a different method of selecting electors after the election. You sometimes hear conservatives argue that state legislatures could now “restore” their power to select electors (Claremont’s John Eastman makes that argument here around the 7–8 minute mark). Federal law allows this only “whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law.” (3 U.S.C. § 2). But that is not what happened. An election was held on Election Day, results were reported and certified showing a winner, and election-contest procedures were followed in the states to determine the legality and correctness of those results.
A state can, of course, conduct post-election lawsuits or other official inquiries to determine who won the state’s popular vote, and the Electoral Count Act accounts for this. But as of now, no state court decision and no official action of any state body has reached that conclusion. Nor has any federal court prevented the states from settling the outcome. Unless and until one of those things happens, there is no power in state legislatures to simply ignore the popular vote that the legislatures authorized.
Will that change? You never know. But in every state at issue, the Trump campaign has lost case after case in court, often withdrawing its claims of fraud rather than try to prove them. State processes have been exhausted, with no further recounts underway or contemplated, and unfavorable rulings delivered from the state supreme courts in Wisconsin and Pennsylvania. Federal courts have prudential doctrines against intervening late in election disputes, and the Supreme Court has been persistently uninterested in 2020 election disputes. Throw in the fact that you need to toss out at least three different states’ certified electors to alter the outcome, and a Rube Goldberg contraption of events needs to occur before any of these slates of electors is even eligible to be considered as the outcome of what was done on Election Day.
Moreover, even if some state legislature might try to appoint electors on the basis of a legislative finding that Trump really won the state, none has done so. Thus, the alternative electors being proposed are, in fact, extralegal: They are acting without the authority of any governmental body — legislative, executive, or judicial — and thus are wholly outside of the legislative appointment authority of Article II. Who appointed these electors?
In Arizona, in a meeting chaired by state Republican Party chair Kelli Ward, the Republican electors invoked Hawaii in 1960, when Democratic electors cast votes that were later certified by the state’s governor when a state recount went their way. The Arizona electors’ votes are thus explicitly a placeholder for a subsequent legal proceeding, with no current status. Meanwhile, an additional slate of individuals claiming to represent the “sovereign citizens of the Great State of Arizona” sent their own, notarized pro-Trump votes to the National Archives with no apparent governmental or party involvement.
In Georgia, the state Republican Party chairman tweeted, “Because the President’s lawsuit contesting the Georgia election is still pending, the Republican nominees for Presidential Elector met today at noon at the State Capitol today and cast their votes for President and Vice President. Had we not meet [sic] today and cast our votes, the President’s pending election contest would have been effectively mooted. Our action today preserves his rights under Georgia law.” These, too, are merely conditional placeholders. President Trump demanded on Monday that the governor convene a special session of the legislature, implicitly acknowledging that the alternative electors are not legally sufficient to overturn the outcome.
In Michigan, the Republican heads of both chambers of the legislature have publicly affirmed that Biden won the state’s popular vote. The alternative electors were escorted by some individual lawmakers, but they were not even permitted to enter the state capitol to meet, thus underlining the fact that they did not cast their ballots in conformity with federal and state laws regarding the location of casting electoral votes.
In New Mexico, a state Trump lost by 100,000 votes and more than 10 percent of the popular vote, the state party’s press release also invokes 1960 in Hawaii and “legal proceedings arising from the November 3 presidential election” that “continue to work their way through our nation’s judicial system.”
In Nevada, the electors were hosted and led by the state party chairman, in an outdoor event streamed on YouTube from the state’s capital of Carson City. This was, as local media noted, “not a state-sanctioned electoral vote,” and the Republican secretary of state declined to comment on it.
In Pennsylvania, the state Republican Party announced: “REPUBLICAN ELECTORS CAST PROCEDURAL VOTE, SEEK TO PRESERVE TRUMP CAMPAIGN LEGAL CHALLENGE,” and again invoked Hawaii in 1960. The state’s press release is explicitly conditional pending further lawsuits: “The conditional resolution states that electors certify their vote for the President and Vice President ‘on the understanding that if, as a result of a final non-appealable Court Order or other proceeding prescribed by law, [they] are ultimately recognized as being the duly elected and qualified Electors for President and Vice President of the United States of America from the State of Pennsylvania . . .’”
In Wisconsin, yet again, the Republican Party chair stated that the electors were voting to “preserve our role in the electoral process with the final outcomes still pending in the courts.”
Multiple secretaries of state in these states have confirmed that they have only one certified slate of electors. Section 15 of Title 3 (3 U.S.C. § 15, part of the Electoral Count Act), speaks of Congress counting electoral votes “by electors whose appointment has been lawfully certified” by a state governor, and empowers Congress to decide the “question which . . . such State authorities determining what electors have been appointed . . . is the lawful tribunal of such State.” None of these electors have been appointed by any state authorities or any lawful tribunal of a state. Unless and until that happens, there is no dispute for Congress to take up.
Safe in the Harbor
Once electors are appointed by the states and their votes are certified by a state authority, they must be counted. The Twelfth Amendment, revising the original counting proceeding, explains how this works:
The electors shall meet in their respective states and vote by ballot for President and Vice-President . . . and they shall make distinct lists of all persons voted for . . . and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; — The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted . . .
The president of the Senate is the vice president, Mike Pence. Both Al Gore in 2000 and Richard Nixon in 1960 served this role when they were the losing presidential candidate. The Constitution, however, says nothing about who decides what votes are counted. By longstanding congressional tradition, the vice president only proposes which slates to count and rules on basic procedural questions such as who is permitted to raise objections; Congress actually decides.
Congress’s authority to decide has traditionally been implied from Congress’s power to set the terms of the original choice of electors, from the fact that both houses are required to be present at the counting, and from the fact that the House and Senate are authorized to immediately begin selecting a president and vice president if the count reveals that there is no Electoral College majority. Congress spent decades of the 19th century wrangling over the proper procedure and who exercised what powers. Some powers of decision obviously lie with the federal government: A state cannot, for example, decide when it has been admitted to the union, an issue in multiple disputes in the early 19th century. At the same time, because the states are given power to pick the electors, Congress has always understood that a state’s choice of electors is a decisive exercise of its Article II powers if the state has clearly made a choice.
These issues grew more aggravated during Reconstruction, when there were frequent disputes over who represented a state, and came to a head in the fiasco of the disputed 1876 election, when there were multiple states with multiple dueling slates of electors, and the fight dragged on until the night before the inauguration in March. In 1887, in order to formalize the process, Congress passed the Electoral Count Act (ECA), which was designed to do two things: preserve the states’ primary role in deciding who their electors are, and provide a process for resolving disputes when more than one state-appointed slate of electors is received by Congress. The ECA is a notoriously poorly written statute, so bear with me on the language, but its import is nonetheless fairly evident. The best resources on the ECA are Professor Stephen Siegel’s 2003 law review article, “The Conscientious Congressman’s Guide to the Electoral Count Act of 1887” and the Congressional Research Service report “Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress,” which has been updated through 2020.
The first barrier that the ECA sets up is the “safe harbor” in Section 5 of Title 3:
If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination . . . shall be conclusive, and shall govern in the counting of the electoral votes . . .
“Conclusive” is what it sounds like: Congress is directed by statute to accept a certified result from a state if the state count-recount-contest process has concluded and been certified with one outcome. Here, that has happened everywhere but Wisconsin, which missed the deadline. Now, the safe harbor deadline is not a complete bar to a state changing its mind later if a state process continues after the date, so long as that process complies with the statute’s requirement of a process enacted by a law passed beforehand. But if just one slate is submitted by state authorities, and it complies with the safe harbor, that is game over.
Notably, the safe harbor contains no exception for a remedy ordered by a federal court, which is where most of the remaining election contest cases are on the dockets. That is not surprising: Because the 14th and 15th Amendments were recent creations, Congress in 1887 had limited experience with election contests in federal court, and the ECA was written by a Congress that doubted the constitutionality of federal election litigation and aimed to prod states into resolving disputes within their own state systems.
In the Hawaii case in 1960, there was a further state recount ordered by a state judge after the safe harbor date, and an amended certification sent later (by a different governor, after the office changed hands) certifying Kennedy as the winner after the earlier certified slate was for Nixon. What Hawaii did was provided for in Section 6 of the ECA:
It shall be the duty of the executive of each State, as soon as practicable after the conclusion of the appointment of the electors . . . to communicate . . . a certificate of such ascertainment of the electors appointed . . . if there shall have been any final determination in a State in the manner provided for by law of a controversy or contest concerning the appointment of all or any of the electors of such State, it shall be the duty of the executive of such State, as soon as practicable after such determination, to communicate . . . a certificate of such determination in form and manner as the same shall have been made . . .
In other words, the governor has a duty to send a new certification if the state’s process has resulted in a new determination of the winner. At that point, the conclusive effect of the original certificate is gone, and Congress has to decide which one to take.
Given the conditional nature of the alternative slates of electors, the Trump team is clearly placing all its hopes on somehow, someday, getting new certifications in order to raise a fight in Congress when it meets on January 6, the date set by the ECA. But then we get to how the ECA allocates the decision-making when there are two competing slates of electors from the same state: “The two Houses, acting separately, shall concurrently decide” any dispute. That means the House and the Senate each adjourn and vote separately, and both are needed. Unlike when the House votes to pick a president in the case of an Electoral College tie, each House member gets one vote. That is how the House voted in 2005 when Democrats contested George W. Bush’s electoral votes in Ohio.
The House, however, is still run by Nancy Pelosi’s Democrats, so there is zero chance that it will resolve any of these disputes in Trump’s favor. And “if the two Houses shall disagree . . . the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.” Which brings us back to the certification by the state governors. And five of the seven states (Pennsylvania, Michigan, Wisconsin, Nevada, and New Mexico) have Democratic governors who will not take any action to certify electors for Trump unless absolutely compelled to do so. That makes it moot that Brian Kemp in Georgia and Doug Ducey in Arizona are also unwilling to go out on a limb and certify electors on their own without the sanction of their states’ legislatures or their states’ voters. It may seem strange that the ECA left this decision to partisan governors, but the bill’s drafters understood that every actor in the process would be partisan; the president at the time the ECA passed was Grover Cleveland, who had just won the presidency in an election decided by Cleveland’s home state, of which Cleveland was the governor at the time. The buck had to stop somewhere.
Who Decides Who Decides?
It is possible that the ECA is unconstitutional, as a 2003 law review article by Vasan Kesavan has argued. Even in 1887, some in Congress did not believe that the Congressional power to decide disputes could be bound by a statute passed by a previous Congress. But even if Kesavan is right, who decides to ignore the statute’s provisions? The House will surely abide by them. The Supreme Court is quite unlikely to intervene. Indeed, the entire point of the constitutional case against the ECA is that Congress has plenary power over electoral vote-counting unbounded by a prior law, so it would not be the place of the Supreme Court or the president to tell Congress how to do its job. That brings us back to the previous point: The Democrats run the House. They have no incentive to throw out the ECA, much less to replace it with a counting procedure that throws the presidency to Trump. So, even if Senate Republicans were to declare that one house of Congress on its own could block the counting of the existing slates of electors — which was the case in some contests before the ECA was passed — the House would declare that Biden was the president, and refuse to convene to select a president. The result would be the gravest constitutional crisis since 1876, in precisely the form that Congress in 1887 tried to forestall.
Who Wants to Decide?
All of the above explains why this strategy is doomed to failure without (highly improbable) major court victories by Trump in the interim, and quite probably doomed even with them. And that, in turn, suggests why most Republicans in Congress have been unwilling to pull the trigger on this option. Mitch McConnell has publicly acknowledged that Biden won the election. The House Republicans — far from all of them — who signed the amicus brief asking the Supreme Court to take the Texas v. Pennsylvania case were mostly unwilling to admit that they were doing anything more than asking for a judicial resolution. Even Trump has not really tried to make a public case for going outside the courts.
Will Republicans pay a price for even playing the cynical game of footsie with all of this? Maybe. Then again, Barbara Boxer never paid a price for being the only Senate Democrat to vote to throw out Ohio’s electors in 2005, and many of the 31 House Democrats who voted with Boxer are still there; one (Ed Markey) is now a senator, and another (James Clyburn) is now the third-ranking House Democrat. A third (John Lewis) was effectively canonized as a patron saint of democracy upon his death earlier this year. Democrats who ducked the vote included Steny Hoyer (now the House Majority Leader), Jay Inslee (now the governor of Washington), and Xavier Becerra (Joe Biden’s pick to run the Department of Health and Human Services). The same is true of a handful of House Democrats who tried the same thing in 2017.
Republicans have been caught, for the past four years, in a two-sided democratic trap. On the one hand, most of them don’t want to go along with many of Trump’s norm-breaking notions, some of which have real potential to undermine our constitutional republican system of government. This would be the worst of those. On the other hand, Trump has twice been duly nominated to head the party and once duly elected president, and he just got 74 million votes, a larger share of all eligible voters than any Republican candidate since Ronald Reagan in 1984. It is not a small thing for elected officials to part ways with a leader with that level of democratic legitimacy.
But Trump lost the election. He lost the popular vote in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin. No legitimate organ of the government in any of those states has concluded otherwise. No court decision has found evidence that would overturn those results. Trying to use Congress as the last stage to override all of that is an illegitimate power grab — and a pointless one, because Republicans alone do not even have the power to do the grabbing.