Electors and the Electoral College in the Presidential Election of 2020

October 2020

Joan I. Schwarz Attorney and Board Member of League of Women Voters of Dane County

There are many issues that could occur in the 2020 presidential election regarding the electors in the Electoral College. The issues are as follows:

ISSUE #1: Will the vote counting be completed by the Nov. 14 deadline, when the President is determined, and by the Dec. 8 deadline, when the Constitution requires electors to be chosen for the Electoral College?

ISSUE #2: Will a candidate be able to convince a state legislature to send a slate of electors to the Electoral College that is inconsistent with the state’s certified popular vote, which can occur in a state where the party control is the same in the legislature and the governorship?

ISSUE #3: What happens if two different slates of electors are sent to Congress, a situation which can occur if a state has Republican-led legislature and a Democratic or vice versa? ______

Why is it important to understand the Electoral Count Act of 1887? Our decentralized election system places great power in the hands of state actors, including governors, secretaries of state, attorneys general and legislatures. At issue with electors in swing states is the concern that state legislatures or governors would certify a result at odds with the popular vote. Another risk to the Electoral College count is if a legislature and governor of different parties send different slates of electors to Congress.

The public needs to be apprised of these possibilities and realize that there could be a legal battle after the election. If a narrative takes hold casting the election results into doubt, one candidate could successfully convince state legislatures controlled by one party to submit separate slates of electors, declaring a candidate a winner. This scenario has been raised as a concern in the 2020 election. Citizens need to be vigilant about the political decisions of their legislatures and governors since the Electoral College count can be subject to manipulation.

Generally, even those Americans who want to eliminate the Electoral College do not question the reliability of the Electoral College system wherein slates of electors are chosen by political parties from each state to represent how its citizens vote in each state. But is this faith in the reliability of the Electoral College based in reality or in fact—is it possible that there are inherent problems that could arise if the election results are too close or indeterminate as to who the next President will be?

What is the constitutional mandate for the Electoral College? Article II of the U.S. Constitution provides that each state “shall appoint” its slate of electors “in such Manner as the Legislature thereof may direct.” (U.S. Const. art. II, § 1, cl. 2). The legislature in each state, therefore, has plenary power to determine how the state will select its electors. The electors selected by each state must “meet in their respective states and vote by ballot for President and Vice-President,” then transmit lists of all their votes to the president of the Senate for counting “in the presence of the Senate and House of Representatives.” (U.S. Const. amend. XII). Since the late 19th century, every state has ceded the decision of selecting electors to its voters.

What is the Electoral Count Act of 1887? The Electoral Count Act of 1887 is a United States federal law establishing procedures for the counting of electoral votes by Congress following a presidential election. i The law has been criticized since it was enacted with an early commentator describing it as “very confused, almost unintelligible” while modern commentators have stated that the law “invites misinterpretation,” observing that it is “turgid and repetitious” and that “its central provisions seem contradictory.”

Is there an issue with regard to any section of the Electoral Count Act of 1887?

Section 15 of the Electoral Count Act of 1887 is subject to legal interpretation. (3 U.S.C. § 15). Issues occur where multiple slates of electors are sent from a state, and the House and the Senate cannot agree whether the law requires the slate certified by the governor or legislature to count, or requires that no slate should be counted.ii The Electoral Count Act has no method for Congress to resolve conflicting slates of electors. The end result of this scenario would be a stand-off with no clear path to resolution.

Congress has not clarified the confusing language in Section 15 of the Electoral Count Act of 1887, and it remains ambiguous. It is this lack of clarity that could be at issue in the 2020 presidential election if there are attempts to interfere with the interpretation of this act.

Are there legal analyses that argue that the Electoral Count Act of 1887 cannot be tampered with?

The National Task Force on Election Crises has addressed this very issue in its paper, “A State Legislature Cannot Appoint Its Preferred Slate of Electors to Override the Will of the People after the Election” and has concluded that “a state legislature’s attempt to override the will of

2 voters would also violate fundamental democratic norms, jeopardize the state’s entitlement to ensure that Congress defers to the chosen slate of electors and raises significant constitutional concerns.”

The task force zeroes in on the “single, narrow exception” to the statutory mandate of the Electoral Count Act of 1887 that provides when a “State has held an election for the purpose of choosing electors and has failed to make a choice on the day prescribed by law, the state’s electors may be appointed on a later date ‘in such a manner as the legislature of such State may direct’” (3 U.S.C. § 2). The task force argues that “an overly broad reading of Section 2” would not be “reasonable.” It quotes from the article “Trying to Make Peace With Bush v. Gore” by Richard D. Friedman, that “the statute cannot reasonably be understood to have meant that if a state holds an election on Election Day but it turns out that the result is really, really close and takes some time to resolve, then the Legislature may step in and choose a slate of electors without regard to what happened on Election Day.”

The task force also argues that section 2 does not allow for a “loophole that allows state legislatures to usurp the popular vote at any time it appears likely to yield a result that a state legislature views as unfavorable” because Congress intended section 2 to be a “narrow exception for true election failure.” It concludes that to exploit this “loophole” and provide a broader reading of section 2 of the Electoral Count Act of 1887 would violate “fundamental democratic norms” and “raise constitutional concerns.”

It is this very “loophole” in section 2 of the act and the “norms” associated with our presidential elections, in addition to the possible constitutional concerns that could reach the U.S. Supreme Court, that may be at issue in the 2020 election, since some legislatures have currently been exploring these avenues.

Can this “loophole” in the Election Count Act of 1887 be exploited? Wisconsin elections are administered by the Wisconsin Elections Commission (WEC). The WEC Spokesperson Reid Magney publicly stated that the Wisconsin Statutes do not grant state lawmakers the authority to choose electors. In the article, “ Wisconsin Election Officials: GOP Lawmakers Cannot Unilaterally Select Presidential Electors,” published on Sept. 25, 2020, in the Wisconsin State Journal, Magney is quoted to say, “to the best of our knowledge, there’s no role for the Legislature to decide which electors go and which ones don’t.” Magney explains that representatives with the Democratic, Republican and Constitutional parties meet in October to select electors and the determination of which electors go to the Electoral College depends on the results of the November 3 election, which are certified by the head of the commission in early December. After that, Governor Tony Evers and Secretary of State Doug La Follette send a letter to the U.S. General Services Administration listing the vote totals and electors. In the article, WEC Administrator Meagan Wolfe also states, “I think that’s laid out pretty directly and in black and white in the Wisconsin state statute in terms of how that process works and there’s not room for other things to happen in that process.” The article explains that any change to that process would necessitate legislative action, which would require the legislature to meet and actively change state law, and that under split government, Governor Evers could veto such an effort.

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Wisconsin Statute section 8.25 states the following about presidential electors:

By general ballot at the general election for choosing the president and vice president of the United States there shall be elected as many electors of president and vice president as this state is entitled to elect senators and representatives in congress. A vote for the president and vice president nominations of any party is a vote for the electors of the nominees.

However, and this is the important caveat, what happens if the WEC, which is evenly split between partisan appointees, does not agree on the candidate who prevails? The issue of who prevails ends up being resolved in court.

In other words, what was left unaddressed in the Wisconsin State Journal article was the very real possibility that the WEC does not agree on who is the winner in Wisconsin and the distinct possibility of congressional and court intervention in the 2020 presidential election if and when multiple slates of electors are submitted from Wisconsin, one from the Republican legislature and one from our Democratic governor.

Does history shed any light on what can happen when there is congressional intervention in a presidential election?

Contested presidential elections have occurred in the past. The last one was in 1876, when Republican Rutherford B. Hayes of was selected President over Democrat Samuel J. Tilden of New York. This election required congressional intervention. According to the history website of the U.S. House of Representatives, Tilden won the popular votes and the electoral count, but Republicans challenged the results in three Southern States, which submitted certificates of election for both candidates. While the Constitution requires the House and Senate to formally count the certificates of election in joint session, it is silent on what Congress should do to resolve disputes. In January 1877, Congress established the Federal Electoral Commission (FEC) to investigate the disputed Electoral College ballots. The bipartisan commission, which included representatives, senators, and supreme court justices, voted along party lines to award all the contested ballots to Hayes, securing the presidency for him by a single electoral vote.

Thus, even though Tilden had won both the popular votes and the electoral count, he did not become President. The only reason the FEC’s controversial results did not spark the violence in the post-Civil War South, that some had feared, was largely because Republicans had struck a compromise with Southern Democrats to remove federal soldiers from the South and end Reconstruction in the event of a Hayes victory.

What are the relevant dates for when electors are to be chosen and when they actually vote for President and Vice-President?

The law requires electors to be chosen for the Electoral College no more than 41 days after Election Day. By the simplest reading of the Electoral County Act of 1887, whoever is ahead on December 14 gets the electors and with them, the presidency.

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There are two dates, however, that are relevant. The first date is Dec. 8, which is known as the “safe harbor” deadline for appointing the 538 individuals who make up the Electoral College. The second date is six days later on Dec. 14, when the electors meet to vote.

In other words, each state must appoint the electors by Dec. 8 , the safe-harbor date, to guarantee that Congress will accept their credentials. The controlling statute says that if “any controversy or contest” remains after that, then Congress will decide which electors, if any, may cast the state’s ballots for President on Dec. 14.

Is there a possible issue with the deadlines of Dec. 8 and Dec. 14 in the 2020 election?

The expected delays in vote counting due to late-arriving absentee ballots, disputes over which of those ballots are valid, overwhelmed state election systems, recounts or “X factors” such as direct election interference by foreign or domestic attacks could mean that there are not clear results in every state by the deadline of Dec. 8. At such time, state legislatures could decide on their own slate of electors rather than one based on the decision of its voters, thereby requiring congressional intervention for conflicting slates of electors.

The issue of congressional intervention before the Dec. 14 deadline has arisen before, even though a slate of legislatively appointed electors did not determine the outcome of a presidential election.

In 1960, at the end of a tight election night between and John F. Kennedy that included suspicions of vote manipulation, a problem arose in Hawaii’s first presidential election (since becoming a state the year before). Nixon was ahead in early counting, despite decisively losing in the overall Electoral College vote. There was a recount, and Kennedy took the lead. Then two competing sets of electors were sent to Congress. Nixon, then the sitting vice- president, presided over the decision. Because the Hawaii recount would not change who the ultimate winner was, Nixon said he was not going to set a precedent and accepted the Kennedy electors, based on the results of the recount, and no one objected. Thus, congressional intervention to decide between two sets of electors was averted.

Then, in the 2000 presidential election between and George W. Bush, due to a delay in counting (remember, the “hanging chads”?), the State Legislature was moving to pick its own slate of electors. However, Gore conceded the election before Florida got to that point. So once again, congressional intervention was averted.

What is the usual procedure for the electoral votes if the election is moved to Congress and there are no objections to the slates of electors?

Since the mid-20th century, the procedure begins on January 6 at 1 p.m. when, before a joint session of Congress, the vice president opens the votes from each state in alphabetical order. The vice president passes the votes to four tellers—two from the House and two from the Senate— who announce the results. House tellers include one representative from each party and are

5 appointed by the . At the end of the count, the vice president then declares the name of the next President.

What occurs if there are objections to electoral votes?

Since 1887, 3 U.S.C. 15 has determined the method for objections to electoral votes. During the joint session of Congress where the votes from the states are counted, members may object to individual electoral votes or to state returns as a whole. An objection must be declared in writing and signed by at least one representative and one senator. In the case of an objection, the joint session recesses, and each chamber considers the objection separately in a session which cannot last more than two hours, with each member speaking for no more than five minutes. After each chamber votes on whether or not to accept the objection, the joint session reconvenes, and both chambers disclose their decisions. If they agree to the objection, the votes in question are not counted. If either chamber does not agree with the objection, the votes are counted.

What happens in a contingency election?

In an excerpt from law professor Stephen A. Siegel’s law review article from 2004, titled “The Conscientious Congressman’s Guide to the Electoral Count Act of 1887,” which was included in the article, “Old Law Could Leave 2020 Presidential Race in Stalemate,” published on June 1, 2020, in Roll Call, Siegel writes that the fundamental problem with the electoral count system is that Congress already knows the result of each state, so any structure can be manipulated by partisans. He writes, “no matter what substantive criteria and processes Congress adopts for judging the propriety of each state’s electoral vote, in a close presidential election, when each State’s vote is known beforehand, partisans on every side will usually be able to game the system to figure out grounds to reach the result they want.”

What are some possible scenarios that could occur because of the ambiguity of section 15 of the Electoral Count Act of 1887?

SCENARIO ONE: Congressional intervention can occur if more than one slate of electors is submitted from one state (or multiple states) where the legislature is controlled by one party and the governor is of another party.

Pennsylvania: is one of the key election states with 20 electoral votes. Consider a scenario where the race is tight, and the votes come in on the night of Nov. 3. Polling site problems are concentrated in urban areas with long lines (which happened in June 2020 when hundreds of primary votes, mostly from Philadelphia, took weeks to come in). One of the candidates is ahead early and stays ahead for the first few days while absentee ballots are being counted. Allegations of fraud and misconduct occur. The final result arrives in a week or two, but meanwhile, election officials have invalidated tens of thousands of ballots—enough to make up the margin of victory for the other candidate. The next step is court, which even if expedited, could take weeks.

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So, what happens if Dec. 14 comes with no resolution? Pennsylvania’s Republican-led legislature could step in and exercise its constitutional right to pick its own electors—likely a list of reliable Republican supporters. The Democratic governor would probably object and assemble his own list of electors, though it is not clear whether he has the constitutional to do so. Both the Republican-led legislature and the Democratic governor would then report their lists to Congress. Because the Democrats control the United States House of Representatives and Republicans control the , each chamber would approve the electors who favor its majority party’s candidate.

The result would be a stalemate. If Pennsylvania’s electoral votes cannot be counted, does the vote for President require the usual 270 electoral votes? Experts have not determined a clear answer (Couloumbis, Angela and Fernandez, Cynthia, “Could the Pa. GOP bypass the popular vote regardless of who wins? Here’s what we know,” Philadelphia Inquirer, Sept. 25, 2020).

Pennsylvania is not the only state where this scenario could play out. The key battleground states that have the same divide between a Republican majority in the legislature and a Democratic governor (with the electoral votes for each state) are as follows: Wisconsin (10), Michigan (16), Pennsylvania (20), and North Carolina (15).

SCENARIO TWO: Single-party controlled states, with one party having a majority control in the legislature and a governor of the same party in a state, can substitute their own slate of electors contrary to the popular vote, which is permissible by the United States Constitution.

Florida: As already noted, multiple slates of electors were being prepared in Florida during the 2000 presidential election, and this scenario was only averted because Gore conceded before it reached Congress.

Likewise, in the 2020 presidential election, consider if hundreds of thousands of mail-in votes arrive, and the parties fight over which ones are valid. The early returns are close, but a higher percentage of votes are deemed valid for current President Donald Trump. Judges issue their rulings, and then the appeals start, which may be taken all the way to the Supreme Court. If the appellate process takes longer than the 36 days justices took with Bush v. Gore 20 years ago, the Republican-led legislature could pick its own electors, backed by Republican Governor Ron DeSantis. The result would then be just one slate of electors submitted to Congress, and Congress would have to count those votes for Trump, even if there are newly counted votes for Vice-President .

Florida is not the only state where this scenario can play out. The key battleground states that are under Republican control with a Republican majority in the legislature and a Republican governor (with the electoral votes for each) are as follows: (11), Florida (29), Georgia (16), Iowa (6), and Ohio (18).

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How exactly could a contingency election play out in a presidential election of 2020 in which neither Joe Biden nor Donald Trump wins an outright electoral college victory?

If this scenario occurs, the presidency will be decided by the House of Representatives. Every state’s delegation would get a single vote. An internal tally of the lawmakers in the delegation determines who receives that vote. This means the presidency may not be decided by the party that controls the House itself but by the one that controls more state delegations in the chamber. Right now, Republicans control 26 delegations to Democrats’ 23, with Pennsylvania tied and Michigan a 7-6 plurality for Democrats (with the 14th seat held by independent Representative Justin Amash).

A battle inside the House would be hard fought. In some states, a single seat could decide the partisan make-up of a delegation. There could be extended legal challenges over declaring victors in House races, as national party leaders and their legal teams file suits over the results of individual races at the county or even precinct level.

Is the Nov. 3, 2020, election for House members pivotal to the determination of the majority of delegations in the House?

The scenario above is fully dependent on whichever party has the majority of delegations. Under the Constitution, the winner of the presidential election is not officially chosen until the slate of electors is presented to Congress on Jan. 6, 2021. This is the vote that comes several days after the newly elected Congress is sworn in, meaning that the totals will change to reflect the winners of House races in November.

If neither Biden nor Trump has secured the 270 electoral votes required to win, the newly seated House delegations will then cast votes to determine a winner. States whose delegations reach a tie vote are not counted. In an article for Politico, on Sept. 27, 2020, titled, “Pelosi begins mustering Democrats for possible House decision on presidency,” authors John Bresnahan, Kyle Cheney and Heather Caygle suggest resolution of this scenario is “more than a math equation.” If the House is asked to resolve an Electoral College stalemate, the country will be witnessing “one of the harshest exercises of raw power in its history,” observing that “if Democrats retain control of the House, they could opt against seating potential members whose elections remain contested, even if state officials say otherwise.” If Democrats retain control of the House, they could opt against seating potential members whose elections remain contested, even if state officials say otherwise.

Of course, such a scenario would end up in extensive legal battles, possibly ending in the U.S. Supreme Court. With the swearing in of Justice on Oct. 6, 2020, the Supreme Court now has a 6-3 conservative majority.

Is this scenario regarding delegations in the House of Representatives being considered as a possibility for the 2020 presidential election?

Numerous articles and analyses have been penned in the last few months explaining exactly how these various scenarios could play out if the election results are too close or indeterminate.

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Officials with legislative control have discussed these possibilities, as has President Trump. The above-referenced article in Politico describes how House Speaker has begun mobilizing Democrats for the possibility of a scenario where neither Biden nor Trump win an outright electoral vote, and has issued a letter to House Democrats regarding the possibility that the House might be pulled into a decision on determining the President.

What is the count right now regarding delegations in the House of Representatives?

Democrats hold a one- or two-vote seat edge in seven states that are expected to feature at least one sharply contested House race: Arizona, Iowa, Maine, Michigan, Minnesota, Nevada and New Hampshire. Republicans hold a similarly tenuous edge in Florida. The Alaska and Montana at-large seats are held by Republicans, meaning a Democrat would change the delegation’s vote in a presidential tally. Pennsylvania’s House delegation is split evenly between the parties, but Democrats are expected to pick up seats after a redistricting that blunted some Republican advantages. Michigan is a wild card, despite the slight Democratic edge in the delegation make- up. Michigan Representative Justin Amash, an independent who supported Trump’s impeachment, is retiring, with his seat likely to go to a Republican Trump ally who would leave the delegation deadlocked.

What is the prediction thus far about the Nov. 3, 2020 election?

Reaching a nightmare scenario that would result in competing interpretations of the Electoral Count Act of 1887 would take an amazing alignment as well as an election so tight that what happens in one battleground state could determine the winner.

A Biden or Trump landslide, or enough states succeeding in getting their voting systems in sufficient shape to do their vote counting within the remaining weeks after Nov. 3, could make the Electoral Count Act irrelevant.

In an article for The Atlantic, on Sept. 9, 2020, titled “The Deadline that Could Hand Trump the Election,” Michael Morley, a professor at Florida State University College, said “So much will have had to go wrong at so many other stages of the process to get to a point where everything is coming down to conflicting interpreting of the Electoral Count Act.” He added, “You would have to have a lot of political actors playing constitutional hardball in circumstances where they had serious claims to back them up.”

Is citizen vigilance necessary regarding the presidential election of 2020 with regard to the electoral count of 1887?

Given the heated and divisive climate within our country today and the serious domestic and foreign threats to the electoral process, some obvious and others not so obvious, we as informed citizens cannot rest easy assuming that the election results will be clear and that the Electoral College will not become an issue. Since it is constitutional for a state to select its own favored electors if it deems the election results are a “failure,” we must be educated on the complexities

9 of the Constitution and the Electoral Count Act of 1887 and be aware of how they may become quite relevant in the 2020 presidential election. We must be vigilant in observing our legislature and governor’s actions very closely and be alert to any of these possible scenarios if and when they occur.

i The Electoral Count Act of 1887: The law has subsequently been codified, with some modifications, into positive law[1] in Title 3, Chapter 1 of the United States Code, which also contains other provisions related to presidential elections and vacancies. The law was enacted in the aftermath of the disputed 1876 presidential election, in which several states submitted competing slates of electors and a divided Congress was unable to resolve the deadlock. ii The Problematic Language of Section 15 of the Electoral Count Act of 1887: Included here to show how convoluted the 1887 language is of Section 15 which has not been revised by Congress since its inception: “Congress shall be in session on the sixth day of January succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o’clock in the afternoon on that day, and the President of the Senate shall be their presiding officer. Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A; and said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from the said certificates; and the votes having been ascertained and counted according to the rules in this subchapter provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified. If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned

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in section 5 of this title to have been appointed, if the determination in said section provided for shall have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as have been appointed to fill such vacancy in the mode provided by the laws of the State; but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law; and in such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State. But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted. When the two Houses have voted, they shall immediately again meet, and the presiding officer shall then announce the decision of the questions submitted. No votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of”. (June 25, 1948, Ch. 644, 62 Stat. 675.)

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