WADDA WE DO NOW? "The Slow Roll" (Election history may have the answer)

It’s well known that the Democrats have announced their plan to delay the counting of votes in the November presidential election as long as possible. Some think they want it to go to the US Supreme Court, where John Roberts might again abandon conservatives and stick it to Donald Trump.

Remember, despite the polls, increasingly the murmurs coming from the Democrats are that they will drag the vote-counting out until 2021 and/or put the matter into the courts.

In the 1876 presidential election, the electoral counts from three states were in, creating a stalemate that took weeks to resolve.

One less-than-reliable answer comes from the less-than-reliable Atlantic, which cited the 1887 Electoral Count Act adopted in the wake of the 1876 election between Rutherford B. Hayes and Samuel Tilden. Easily, this was the closest election in American history, requiring a joint commission of Congress to evaluate contested electoral votes from Louisiana, Florida, and South Carolina—all of which apparently favored the Democrat Samuel Tilden. Each state, however, had claims of vote fraud and threats of violence against Republicans (especially the freedmen who voted Republican).

South Carolina, for example, saw 101% of all eligible voters vote, auguring the famous 1960 election in Chicago where the dead voted. (It’s worth noting that the loser, Tilden, won the popular vote with a whopping 57% to Hayes’s 42%).

The Electoral Count Act requires that electors be chosen for the Electoral College no later than 41 days after the national election. In this case, that date would be December 14.

A reading of the language of the act seems to say that whoever is ahead on December 14 wins, period. But what is meant by “ahead?” A US Congressman tells me that the requirement is fixed in stone: someone has to get to 270, but National Review’s Andrew McCarthy disagrees.

The law itself seems to say just the opposite: “The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed.” What is the “whole number of Electors appointed?” Does that mean “appointed” by the states that have submitted elector slates or appointed by the de facto total number of electors available? McCarthy says that the president must have a majority of those submitted, not 270.

In the U.S. Civil War, we had exactly this situation. Remember, Lincoln defined the war as a “rebellion,” meaning the Southern states never left the Union. But in practical terms, they had.

So what happened with their electors in 1864? There were none submitted. Yet the election went forward with Lincoln winning because he won the majority of the electors submitted.

Using the example that the Atlantic chose, Pennsylvania, it is possible that the presidential election could come down to Pennsylvania and that its votes can’t be counted by Dec. 14.

Does the state just lose its votes? Some scholars say yes. National Review’s Andrew McCarthy argued “the process is controlled by Congress under longstanding statutory law (found in Chapter 1 of Title 3, U.S. Code).

In a nutshell, all state disputes, if any, over election results must be resolved by December 8.” Let’s call that the certification date. That is, a state is required to certify its slate of electors, which will determine who won the state, by December 8. Then, on December 14 the electors meet in their states and cast their votes. Note: nowhere is the state’s governor involved in this. While a Secretary of State has to provide the certification on December 8, the governor has no role in the election process.

For example, 3 U.S. Code § 2. “Failure to Make Choice on Prescribed Day,” says “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, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.” (By the way, Pennsylvania, Michigan, and Wisconsin all have Republican legislatures).

Again, the governor is irrelevant. However, the chief executive of the state is required to transmit the results to the U.S. Archivist. What happens if no certificates of electors are transmitted? This is the “monkey in the wrench” as John McClain said in Die Hard.

Other then a fine for the person appointed by the state to deliver the certificate of electors’ votes to the President of the Senate who fails to deliver such a slate ($1,000) there is no state penalty for failure to participate in the election. (In 3 U.S. Code § 12., 13, 14)

Indeed, this is the biggest problem in the new US Code relating to the elections, as nothing is said about what happens to a state that fails to deliver its electors. In 3 US Code § 12 and 13, when no certified vote from any state has been received by the Senate or the archivist, they can “request” the secretary of state of the state in question to send up the certificate “lodged with him by the electors of such state.” Wait! What if there are no electors because the votes are “still being counted?” The Code doesn’t specify what comes next, although oddly it allows a district judge “in whose custody one certificate of votes from that state has been lodged” to transmit the votes.

Again, however, no one ever asked the question: “What if a state does not want its votes counted?” Electoral votes that are certified in the state are then transmitted to Congress, a process that is supposed to be completed by December 23. On January 6 at 1 p.m., both houses of Congress convene to count the votes. If no president has been chosen by that time, the House of Representatives is to choose from between the top two elector recipients. Right here the doomsayers scream “See! I knew Pelosi would steal it!” Well, no. The House is to vote—not by member (i.e., 435)—but by delegation. Republicans in the current House control 26, Democrats 23, and one is split.

This then would elect Donald Trump as President. (The Senate then decides the vice president, and here Pence would be the selection). “Wait! What if it is the next House?”

There is nothing whatsoever to suggest that a single delegation could flip to the Democrats, let alone two and quite the opposite likelihood that the Republicans will expand their seats in the House—though I don’t know the delegations well enough to determine if another could flip to the GOP.

It appears a majority of whichever electors are certified on December 14 is the winner.

If states hold out, for any reason, they can be pressured to conform, but there is no penalty under law.

Apparently, however, they would just lose their electoral votes. (Even the most goofball radical Democrat governor would think twice about ceding his state’s place in a presidential election—there is too much precedent set there.) And, remember, legislatures have the final call on all matters related to the electors. The state legislatures can simply say “Time’s up” and force the Secretary of State to certify, probably even over the opposition of a governor. Of course, each of these steps likely would go to court.

Finally, any court tinkering with any of this would surely know that the only solution would be a full-blown re-writing of all U.S. election law. Just as the court did in Bush v. Gore, they will quickly conclude this is way beyond the abilities of any—and probably all—the courts in the nation.

Larry Schweikart is the co-author with Michael Allen of the New York Times #1 bestseller A Patriot’s History of the United States, author of Reagan: the American President, and founder of the Wild World of History, a history curriculum website for homeschoolers and other educators with a US and World history curriculum that includes teacher guides, student workbooks, tests, images/graphs, and a video lesson accompanying every written lesson (www.wildworldofhistory.com).

npr.org
Suzan Walsh AP

CIRCA July 6,2020
The Supreme Court decides that Electoral College delegates have “no ground for reversing” the statewide popular vote.
States’ ‘Faithless Elector’ Laws Are Constitutional

The U.S. Supreme Court has unanimously upheld laws across the country that remove or punish rogue Electoral College delegates who refuse to cast their votes for the presidential candidate they were pledged to support.

The decision Monday was a loss for “faithless electors,” who argued that under the Constitution they have discretion to decide which candidate to support.

Writing for the court, Justice Elena Kagan, in a decision peppered with references to the Broadway show Hamilton and the TV show Veep, said Electoral College delegates have “no ground for reversing” the statewide popular vote. That, she said, “accords with the Constitution — as well as with the trust of the Nation that here, We the People rule.”

The decision was a relief to election law experts as well as Democratic and Republican party officials, who have long supported faithless elector laws such as those upheld Monday.

If the case had gone the other way, it would have been a “nightmare scenario” in which people unhappy with the general election results could “go after electors and try to threaten them or cajole them or bribe them to vote in a particular way,” said Richard Hasen, an election law expert at the University of California, Irvine.

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Colorado Attorney General Phil Weiser echoed those sentiments: “This was one where I did not want to contemplate what the other consequence would have looked like,” he said.

Even Harvard Law School professor Lawrence Lessig, who represented the rogue electors before the Supreme Court, appeared only mildly disappointed at the loss. “We took this case initially because we just thought this needed to be resolved before it created a constitutional crisis,” he said.

Thirty-two states have some sort of faithless elector law, but only 15 of those remove, penalize or simply cancel the votes of the errant electors. The 15 are Michigan, Colorado, Utah, Arizona, Indiana, Minnesota, Montana, Nebraska, Nevada, Washington, California, New Mexico, South Carolina, Oklahoma and North Carolina. Although Maine has no such law, the secretary of state has said it has determined a faithless elector can be removed.

Monday’s Supreme Court decision, however, is so strong that it would seem to allow states to remove faithless electors even without a state law. Duke University School of Law professor Guy-Uriel Charles said that nonetheless, it would be prudent for states to pass laws to prevent electors from going rogue.

“States certainly would be better off by imposing some statutory basis ... for removing or sanctioning rogue electors,” Charles said, adding, “But I don’t see anything in this opinion that requires them to do so.”

Monday’s case began after the 2016 election when a handful of Electoral College delegates pledged to Democratic nominee Hillary Clinton in Colorado and Washington state voted for other individuals, such as Colin Powell or John Kasich.

As Michael Baca, the faithless elector from Colorado, put it in an NPR interview, the idea was to “reach across the aisle” to Republican electors in 2016 and try to find a candidate that some Republican delegates would be willing to support other than Donald Trump.

Baca was removed on the spot under Colorado’s faithless elector law, and the Washington state delegates were fined $1,000 each. In 2019, Washington’s law was amended to require that faithless electors be removed as well.

On Monday, the Supreme Court put its stamp of approval on either approach, at minimum.

Kagan’s opinion noted that the original Electoral College system created by the framers of the Constitution failed to anticipate the growth of political parties. By 1796, the first contested election after George Washington’s retirement, the system exploded in disarray, with two consecutive Electoral College “fiascos.”

That led to passage of the 12th Amendment in 1804, “facilitating the Electoral College ... as a mechanism not for deliberation but for party line voting,” Kagan wrote.

Nothing in the Constitution prevents the states from “taking away presidential electors’ voting discretion,” she said. For centuries, almost all electors have considered themselves bound to vote for the winner of the state popular vote. If the framers of the Constitution had a different idea, she said, they never committed it to the printed page.

Justice Clarence Thomas, joined in part by Justice Neil Gorsuch, agreed with the outcome but wrote separately to explain his different reasoning.

Rather than interpret the Constitution’s sparse language about the Electoral College as authorizing states to impose conditions on electors, Thomas argued that power is reserved to the states by the 10th Amendment.

Although many Americans think that they elect the president and vice president, in fact, it is the Electoral College, an arcane intermediary mechanism dreamed up by the Founders, that formally determines who wins the election.

The system has been considered a formality because usually the winner of the popular vote also wins the Electoral College.

But twice in the past two decades, the unexpected took place: The winner of the popular vote did not become president; instead, the winner in the Electoral College prevailed. Trump, who got nearly 3 million fewer votes overall than Clinton, won the state-by-state allotment of Electoral College votes in 2016 and became president. And in 2000, George W. Bush became president, winning five more Electoral College votes than Al Gore, though Gore won roughly half a million more popular votes.

In total, the popular vote winners have failed to win the Electoral College vote on four occasions, the first two occurring during the 1800s.

But the fact that the last two occurred in just the past 20 years has provoked various suggestions for reform, including getting rid of the Electoral College altogether. With the country as polarized as it is, however, that seems unlikely, as it would require a constitutional amendment, and that in turn requires a two-thirds vote in both houses of Congress, and approval by three-quarters of the states.

Several states have signed on to a proposal to sidestep the Electoral College altogether by joining a “National Popular Vote Interstate Compact” to pledge their Electoral College votes to whichever candidate wins the national popular vote, regardless of how the candidates perform in their state. So far, the compact has the support of 15 states and the District of Columbia, making up 196 electoral votes of the 270 needed to win the White House.

That scheme, which would only go into effect once enough states have joined to tip the election, would surely be challenged in court as well.

Flawed as the Electoral College system may be, at the oral arguments in May, the justices expressed concern about tinkering with laws that bind the delegates to vote for the popular vote winner in their states.

Justice Samuel Alito observed that if the popular vote is close, the possibility of “changing just a few votes” in the Electoral College would rationally “prompt the losing party ... to launch a massive campaign to try to influence electors, and there would be a long period of uncertainty about who the next president was going to be.”

Similarly, Justice Brett Kavanaugh alluded to what he called “the chaos principle of judging, which suggests that if it’s a close call ... we shouldn’t facilitate or create chaos.”

None of those concerns surfaced explicitly in Kagan’s majority opinion. She instead pointed to the text of the Constitution as well as more than 200 years of history and tradition to make her case.

“The Constitution’s text and the nation’s history both support allowing a state to enforce an elector’s pledge to support his party’s nominee — and the state voters’ choice — for President,” Kagan wrote.

“... The Electors’ constitutional claim has neither text nor history on its side.”

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