An analysis by two prominent law professors published before the election concluded that if Electoral College votes remain in dispute after they are counted in Congress, the vice president, as presiding officer of the joint session, could choose not to allow certain disputed votes.
The scenario isn’t entirely remote, with lawsuits challenging the results in six states and the possibility the U.S. Supreme Court could weigh in.
John Yoo of California-Berkeley and Robert J. Delahunty of St. Thomas University wrote in an analysis published Oct. 19 by the Claremont Institute that Vice President Mike Pence can refuse to count some of the votes if they remain disputed.
The professors concluded that the “constitutional structure” favors President Trump if Election Day “fails to result in a clear winner.”
They cited the “unprecedented” circumstance of the COVID-19 pandemic on the election and envisioned a scenario in which “Trump appears to be the winner on the morning after Election Day, but a ‘blue wave’ begins in the days and weeks after, and Biden claims a belated, overtime victory.”
Just the News reported Norman J. Ornstein of the American Enterprise Institute called the professors’ argument “ludicrous on its face.”
Attorney Richard Roth of the New York-based Roth Law Firm told Just the News that while the essay “raises several very valid – and very controversial – issues, they all rest on one fact: the certification of election results.”
The professors pointed to the Electoral Count Act of 1887, which establishes deadlines for the states to report their official results and for the 538 members of the Electoral College to meet.
“The latter date this year is December 14, or 41 days after Election Day. The state deadline this year is December 8. The date is a safe harbor: if a state reports in time, Congress will accept its electors. The Act provides that if ‘any controversy or contest’ remains after December 8, Congress will decide which electors—if any—may cast their state’s votes in the Electoral College,” they explained.
They also mentioned the constitutional provision that gives to state legislators the power to appoint electors.
“The constitutional question is not whether but how a state legislature could reclaim the appointment of electors. States have provided by statute for the selection of their electors by their voters; therefore it one might argue they may only resume that power with a second, superseding statute. On the other hand, the Constitution specifically designates state legislatures, rather than the executives or a combination of the two, to choose the electors. A state legislature might argue that a past legislature-and-governor cannot constrain its discretion to choose electors today. Is it likely that state legislatures in battleground states could reclaim their constitutional power before the December 8 deadline looms? Probably not.
“While Republicans control the state legislatures in six key battleground states, only two of those states also have Republican governors (Arizona and Florida). In four other contested states Republicans control the legislature, but Democrats control the executive: Michigan, North Carolina, Pennsylvania, Wisconsin. Only if the Constitution allows state legislatures, acting without the governor, to choose the electors, could those states cast electoral votes in a disputed popular election.”
However, they said, there’s another plausible scenario.
“This requires a closer look at the Electoral Count Act. The Act contemplates a post-election period in which states have the opportunity to resolve any ‘controversy or contest’ in accordance with their pre-election law through ‘judicial or other methods or procedures.’ Once this process has reached a definitive conclusion or ‘final ascertainment,’ the governor is then to certify the electors. But the Act presupposes that all such controversies or contests have run their course before the governor submits the certified list of electors. What if December 8 is at hand and the controversies are still going on?
“Another provision of the Act could come into play. If a State has held an election on November 3 ‘and has failed to make a choice’ by the December 8 deadline, the Act declares that ‘the electors may be appointed on a subsequent day [after Nov. 3] in such a manner as the legislature of such State may direct.’ That failure could arise from fraud, uncertainty, ongoing recounts or litigation. In those circumstances, a state could be said to have ‘failed’ to make a choice, and its legislature could pick the electors,” they explained.
But the Founders addressed the possibility that the Electoral College vote would fail to produce a winner, and it’s possible that Electoral College votes would remain “under question, whether because of fraud in the vote, inability to county ballots accurately under neutral rules, or a dispute,” even if they are certified by a governor.
“Under the 12th Amendment, ‘the President of the Senate [i.e., the Vice President] shall, in the Presence of the Senate and House of Representatives, open all the certificates [of the electoral votes of the states] and the votes shall then be counted.’ Left unclear is who is to ‘count’ the electors’ votes and how their validity is to be determined,” they wrote.
“We suggest that the Vice President’s role is not the merely ministerial one of opening the ballots and then handing them over (to whom?) to be counted. Though the 12th Amendment describes the counting in the passive voice, the language seems to envisage a single, continuous process in which the Vice President both opens and counts the votes.”
They argued that if “counting” the votes is the vice president’s responsibility, “then the inextricably intertwined responsibility for judging the validity of those votes must also be his.”
“If that reading is correct, then the Electoral Count Act is unconstitutional. Congress cannot use legislation to dictate how any individual branch of government is to perform its unique duties: Congress could not prescribe how future Senates should conduct an impeachment trial, for example. Similarly, we think the better reading is that Vice President Pence would decide between competing slates of electors chosen by state legislators and governors, or decide whether to count votes that remain in litigation.”
The result could be no winner from the Electoral College, and the election then would go to the House of Representatives, where each state would get one vote.
The professors then outlined a series of additional backups that could even result in a President Mike Pompeo.
“It just might fit our bizarre times,” they wrote.
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