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 governor 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. 3 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.