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Making Sure Every Vote Counts: a Guide to the Laws on Certifying and Counting Presidential Electors for the in 2020 Election

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MAKING SURE EVERY VOTE COUNTS: A GUIDE TO THE LAWS ON CERTIFYING AND COUNTING PRESIDENTIAL ELECTORS FOR THE IN 2020 ELECTION BY THE DEMOCRATIC TRANSITION WORKING GROUP OF THE UNIVERSITY OF DAYTON SCHOOL OF LAW INTRODUCTION Understanding and following the law in ways that give effect to all legally cast ballots is crucial to protecting our democracy. Lawyers, judges and public officials play a critical role in assuring that protracted legal disputes do not prevent counting the votes by the statutory deadlines or erode public confidence in the election by allowing political influence to inappropriately affect the outcomes. Towards these ends, this summary (1) provides a simple explanation of a complex electoral process, (2) raises important legal issues that could arise in a close and disputed election, and (3) gives legal resources to assist those beginning more in-depth legal research. PRESIDENTIAL ELECTORAL PROCESS – SIMPLIFIED A. Overview of the Presidential Electoral System. The President is selected based on a majority vote of “electors” chosen every four years by each state under the laws of that state. Currently, every state’s law provides that its popular vote determines the selection of electors. After the popular vote, the electors meet separately in their respective states and vote as the “Electoral College.” Each state is allotted a number of electors equal to the number of Representatives that state has in the House plus its two Senators. The District of Columbia also has three electoral votes, so there are presently 538 electors (435 + 100 + 3). The majority of electoral votes needed to become President is therefore 270. B. Laws that Govern a Presidential Election Process There are three sources of law that establish how a president is elected: (1) the United States Constitution, the Elector’s Claus Art. 2 § 1, cl. 2, the 12th Amendment, and the 20th Amendment; (2) laws in each of the 50 states governing the selection of electors for that state, and (3) federal laws concerning the selection of a President, The Electoral Count Act of 1887 (“ECA”) and the Presidential Succession Act. 1 C. The Election Process Timeline 1. November 3, 202: Popular vote. States appoint presidential electors every four years on the first Tuesday in November.1 Neither the constitution nor the ECA require states to appoint electors based on the popular vote. However, all states now require electors to be selected based on the popular,2 and 33 states require electors to follow the popular vote as “bound electors.”3 2. December 8, 2020: Certificate of Ascertainment. Once a state’s vote determines its electors, the “state executive” (governor) provides “Certificates of Ascertainment” to Congress that identify the electors. This must be done six days prior the date when the Electoral College meets (on December 14, 2020).4 3. December 14, 2020: Electoral College votes to choose President. a. On this day electors meet in their respective states to vote for a presidential candidate.5 b. Except for Maine and Nebraska,6 in all states the candidate obtaining a plurality of electors is given the entirety of the state’s electoral votes. 4. January 6, 2021: Electoral college votes counted in Congress. a. The newly elected Congress convenes on January 3, 2021. Under the ECA, on January 6, 2021, the Presiding Officer of the Senate (Vice President Pence) counts the electoral votes before a joint session. 7 1 U.S. Constitution, Art. 2 § 1; ECA, 3 U.S.C. § 1. 2 www.ncsl.org/research/elections-and-campaigns/the-electoral-college.aspx 3 www.fairvote.org/faithless_elector_state_laws 4 ECA, 3 U.S.C. § 5 5 Id. § 7 6 Maine and Nebraska allocate votes between districts with the candidate obtaining the plurality of votes in that district obtaining the district’s share of the votes. 7 ECA, 3 U.S.C. § 15 2 b. If a candidate has a “majority of the whole number of Electors appointed,” (270 of 538), he or she wins. 5. January 6-20, 2021: Possible “contingent election.” If, based on the count of the valid electors, as determined by Congress under the ECA , no candidate has a majority of “Electors appointed,” then the U.S. House of Representatives selects the President by majority vote, with each state’s delegation receiving one vote.8 States with large populations such as California and Florida receive the same single vote per state delegation as Wyoming and Montana. Currently, Republicans hold the majority of state delegations in the house, and that is not likely to change in the 2020 election. 6. January 20, 2021: Inauguration day a. On this day, the previous President’s term ends, and a newly selected President must be sworn in.9 b. If a new President has not been selected, the Presidential Succession Act provides that the Vice President, and if he or she is not available the Speaker of the House, will serve temporarily as the President until the selection is made.10 FAQ’S ABOUT THE ELECTORAL PROCESS Confusing legal issues lurk within each step of the electoral timeline. Disputes about those issues threaten to derail and delegitimize the legal process of counting all the votes. In the Frequently Asked Question (FAQ) format below, this discussion addresses some of the most urgent legal questions in four broad groups: A. Choosing Electors in the States; B. Counting Electors in the U.S. Congress; C. Provisions for a Contingent Election in the U.S. House; and D. What Can Be Done to Protect Lawful Votes? A. Choosing Electors in The States 1. What threats to conducting elections and accurately counting the popular votes do states face in 2020? The 2020 presidential election will likely raise many troubling legal and factual disputes. State efforts to protect the franchise in the face of the COVID-19 pandemic raise challenges to states’ dissemination of absentee 8 12th Amend. 9 20th Amend. 10 Presidential Succession Act, 3 U.S.C. § 19. 3 ballots, the propriety of state witness and notarization requirements, limitations on ballot collection locations, and more. Social distancing concerns will exacerbate normal concerns about long lines and long waits at the polls. Legal contests about what, if anything, should be done are almost inevitable. Mail-in ballots, though useful to slowing the spread of COVID-19, may be more difficult to count, which, in turn, could erode public confidence in the accuracy of our voting. Indeed, President Trump has declared that only votes counted on election night should be included in the vote, that all others are “massively rigged” or “fraudulent.” In addition, in a year when the need to vote by mail is arguably more important than ever before, there are questions about the Postal Service’s ability to timely deliver ballots to and from voters. We can expect legal challenges regarding the timeliness of votes received after November 3rd and the veracity of mailed-in ballots. Potential irregularities at polling places raise additional concerns. President Trump has called for legions of poll watchers. What are they to watch for? What if they are armed? What if they are or look like police officers? What if they challenge voters in predominately black precincts? This will be the first year since 1982 that the Republican Party will not be operating under the terms of a consent decree aimed at preventing voter harassment that originated from precisely such conduct. There might be even more serious problems. What happens if a cyberattack disables some or all of the voting machines in a state or throughout the country? What happens if armed groups or violence prevent voting from occurring? What happens if, in the face of violent demonstrations, the President declares an emergency under the Insurrection Act (or governors do so) and access to the polls is prevented by the imposition of curfews or more dramatic limitations on citizen mobility? What happens if all of the above occur in combinations that make counting the votes impossible or highly questionable? All of the foregoing are certain to raise issues in the minds of citizens; many are possible sources of protracted litigation. Welcome to the 2020 election. 2. How are disputes in the states about conducting elections and counting votes resolved? The Constitution vests the states (specifically their legislatures) with the authority to select their presidential electors. All 50 states have enacted laws providing means for their citizens to vote for President and for any disputes about those elections to be resolved through judicial processes. The ECA contemplates counting electors who have been selected by states. 4 A party can challenge a state’s voting procedures and the application of those procedures on the basis of (1) a state’s constitution, (2) a state’s electoral laws, (3) the U.S. Constitution, or (4) federal election laws. Such challenges can be brought in either state or federal court under normal jurisdictional rules. They can be raised either before an election, as when a party wishes to dispute anticipated procedures, such as mail-in ballot security envelopes, or after an alleged violation has occurred, such as when a voter is turned away from the polls for allegedly insufficient identification. To the extent that disputes over voting procedure and counting practices are addressed prior to the election, they would not jeopardize the ability to finalize the popular vote count and have electors selected on the basis of that vote. However, Congress considers a state’s certification of electors “conclusive” only if it certifies its electors by the “safe harbor” deadline six days before the Electoral College votes. In 2020, states must certify their electors by December 8, 2020, six says before the Electoral College votes on December 14, 2020.
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