Posted on 11/09/2020 11:15:35 AM PST by doug from upland
NOTE: I have been searching for this info for some time and believe I have found it. The article is worth reading, but below are what I believe are the salient points. It appears that the GOP will have a problem naming competing electors. Big question --- will the Supreme Court step in the change what it appears to be current law.
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Election Day (Tuesday, November 3, 2020). The ECA requires all states to appoint electors—i.e., to hold their presidential elections—on “the Tuesday next after the first Monday in November.”23§Safe Harbor Deadline (Tuesday, December 8, 2020). A slate of presidential electors qualifies for “safe harbor” status if, at least six days before the electors meet to cast their votes, the state makes a “final determination” of any dispute by “judicial or other methods or procedures” pursuant to state law enacted prior to Election Day.A state’s appointment of a slate of electors that qualifies for safe harbor status must be treated as “conclusive” by Congress and governs in the counting of electoral votes as regulated by later provisions of the ECA.24
Governor’s Certificate of Ascertainment. As soon as practicable after the election, the “executive of each State” (usually the governor)25must “ascertain” and certify his or her state’s election results and its chosen slate of electors.The state’s executive must send this “certificate” under state seal to the Archivist of the United States and six “duplicate-originals” to the electors themselves no later than December 14, when the electors meet to cast their votes.26Each executive must also deliver any final determination of election disputes to the Archivist “as soon as practicable after such determination.”27The Archivist must then send copies of all certificates to the two houses of Congress.
***** MOST IMPORTANT PART OF THE ARTICLE *****
If there is more than one submission of electoral votes from a state, the question ultimately is whether the chambers agree on which slate to accept. If the chambers agree to accept a particular slate, those electoral votes count. If the chambers agree to reject a particular slate, then those electoral votes do not count. If the chambers disagree as to which slate to accept, then the prevailing votes are those that were cast by electors certified by “the executive of the State.”37This provision, known colloquially as the governor’s tiebreaker, operates as a “fail-safe to prevent state disenfranchisement.”
***** ADDITIONAL NOTE *****
There has been some misconception that each state delegation gets one vote to determine the competing electors. That is not the case. Each house has a compete vote of all members. As was presented above, should the GOP keep the Senate, there would not be an agreement of which state to accept and then the Governor's slate would prevail. The one vote per state provision comes into play if neither candidate has 270 electoral votes. Then the question is decided state by state.
Under what circumstance would the Supreme Court intervene to change the "safe harbor" provision that is current law?
Another possibility is that the election of certain states cannot be certified in time. That state would lose its electors. Does the total required to win then go below the magic 270? Is that when the one vote per state delegation would come into play? For me, that is not clear yet, but perhaps someone has the answer.
In 1876 three states sent two slates of electors to Congress and said “pick one”—so there is Constitutional precedent for that.
Also, the Constitution has no language about the governor’s authority in this matter, only the legislatures.
A slate appointed by the legislature does not go trough the governor. Goes to Congress directly
Unless we demonstrate a win in a state based on legal votes, I don’t think anyone would flip the state.
So bottom line is we need to demonstrate a legally recognized victory in each state.
Pittsburgh and Philadelphia have drastically slowed down their counting.....so somethings up ...again time matters. They’re stalling for a reason.
Congress later passed the ECA to prevent another Hayes-Tilden debacle. It addressed the concern with legislation. It specifically set out the provision of how the Governor indeed has the authority. If both houses do not agree on competing electors, it will go to the Governor.
It does and the article explains how it is decided. It takes both bodies to accept a slate of electors. If they disagree, the slate is going to the Governor’s electors.
Have to do some research, but there seems to be a lot of misinformation here from a liberal site.
I have another question. We have seen police forces taken over by the feds, is it possible for the FEC to take over a states election by decree?
No...
There is no provision or authority given to the Governor to select competing slates of electors, individual appointments or resolve any ambiguity.
That is vested ONLY in the state legislature.
Governors role is to ascertain and authenticate... period.
https://www.archives.gov/files/electoral-college/state-officials/presidential-election-brochure.pdf
Sending Certificates of Ascertainment to NARA:
The Certificates of Ascertainment list the names of the electors appointed and the number of votes cast for each person.
* The States prepares no less than SEVEN originals, which are authenticated by the Governor’s signature and the State seal, and TWO certified copies. Alternatively, NINE originals may be prepared.
One original along with two certified copies (or three originals, if nine were prepared) must be sent to the Archivist, David S. Ferriero, c/o Office of the Federal Register (F).
The Governors must submit the Certificates of Ascertainment
“as soon as practicable” after their States certify election results.
* The remaining SIX original Certificates of Ascertainment will be attached to the Certificates of Vote at the State meetings.
OK—but should not be a problem with Republican legislatures (both houses) in all the states at issue here (other than NV).
PA, MI, WI, GA, AZ. All of these states have BOTH houses GOP. They will agree.
GA and AZ have GOP governors
1. Disputes in states as to election results must be resolved by Dec. 8. Failure to resolve the disputes could possibly result in constitutional crises involving the SCOTUS.
2. If the election produces a clear cut winner of a state's electors, a lack of certification by the state is academic.
3. However, if no candidate can get over or to the 270 electoral vote finish line by resolving the missing state electors, a contingent election would fall to the House à la 1876.
I am not posting this as a prediction or bedrock, it's just an indication to me of possibilities. I realize others have been over this ground. I'm trying to work through this mess and would appreciate any comments that add clarity or correction.
The ECA legislation answered the problem of competing electors. House and Senate in DC each vote separately. If they do not agree, under Safe Harbor provision, the slate sent by the governor prevails. That is how I read the article.
Yes. And then Congress has to consider which slate prevails. House meets to vote; Senate meets separately to vote. The full House and Senate. If we hold the Senate, the House and Senate will be split on which slate to accept. Per ECA legislation, the slate sent by Governor prevails.
What Democrat governor would not get the results in his state certified on time? Lawsuits to delay counting? They would not let that happen and would certify results anyway. But if they tried to pull that to get the state’s electors from being lost, would SCOTUS dare negate all electors from the state?
Would we see mobs in the street preventing counting? Their side would do that if it meant keeping Trump electors from being certified. Our side would not do that.
The matter is not about agreeing at the state level. The new House and new Senate have the opportunity to determine which slate is accepted if there are competing slates of electors.
The constitution says the legislature’s. Slate matters. Governor is not mentioned. ECA rule isnt In The constitution.
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