Despite what Court briefs say, no state legislature has appointed--or "endorsed"--a rival slate of presidential electors

Briefs before the Supreme Court are making deceptive (at best) claims about what state legislatures have done this December when it comes to presidential elections and the selection of presidential electors.

Consider this statement from a brief in King v. Whitmer:

As a result of the foregoing, there are now competing slates of electors from the four states at issue [Arizona, Michigan, Pennsylvania, and Wisconsin] in the four cases mentioned above, (as well from Nevada, New Mexico, and Pennsylvania).

These four slates of electors have received the endorsement of the legislatures in each of these States, as reflected in permission for them to cast (or attempt to cast) their electoral votes, as an electoral body, for President Donald J. Trump in the respective State Houses at the time and place as set forth under applicable State law, the Electoral Count Act, and the authority delegated under the U.S. Constitution’s Electors Clause. U.S. Const. Art II, § 1, cl. 2.

Or these statements from a brief in In re Pearson:

While the Georgia Legislature did not go so far as to formally withdraw or nullify this delegation of authority on December 14, 2020, its endorsement of the contingent slate of Republican electors preserved its right to do so at the time and in the manner of its choosing.

...

Any contention that the federal courts lack subject matter jurisdiction over these controversies is likewise without merit. The events of December 14, 2014 giving rise to competing slates of electors for the State of Georgia – one endorsed by the State Legislature and one by the Respondent State executives – creates a new and very live “case or controversy” under Article III of the U.S. Constitution.

The “legislature” is the elected lawmaking body in a state, but that lawmaking body has some rules. To act as a legislature, it has to be in session. It has to have a quorum present. It has to hold a vote. It typically requires a public report in a journal, like the federal Constitution requires. These aren’t controversial propositions for even most the ardent defender of a state legislature’s power under the Presidential Electors Clause.

But no legislature has done any such thing. No legislature has appointed a slate of electors. No legislature has “endorsed” the actions of a slate of electors that attempted to vote contrary to the electors certified from the popular election in the state.

“Permission” to appear in the state capitol is no more an endorsement than allowing any group of tourists to step foot in the capitol and engage in some kind of activity.

While some individuals purporting to be groups of Republican electors cast votes in their respective states recently—arguing they were a “rival” slate opposed to the winning Democratic slate—none of these slates were appointed by the legislature. All acted on their own. While individual legislators may have approved of their decisions, no legislature did so.

In contrast, one can go back to 2000 and the special session of the Florida legislature that met to consider choosing a slate of electors as Bush v. Gore languished in the courts. One can open the House journal to find the vote of the Florida House approving a slate of electors. Yet it still wasn’t an appointment of the legislature, as the Senate never acted on it.

These statements in the briefs before the Supreme Court are designed to sow confusion and uncertainty, to act as if there are questions of the legitimacy of more than one slate of electors when, in reality, there is only one slate in each of the fifty states that has any legally-recognized authority.

Wisconsin district court incorrectly describes scope of the Presidential Electors Clause

A federal judge in Trump v. Wisconsin Election Commission recently rejected the President Donald Trump’s attempt to declare Wisconsin’s 2020 presidential unconstitutional. While the court got many things right, I want to focus on one important legal error in Part II.A of the opinion—the scope of the Presidential Electors Clause, and, specifically, the scope of the state legislature’s power to direct the “manner” of appointing electors.

It’s worth noting at the outset that the district court includes in the alternative Part II.B, if the scope of the Presidential Electors Clause is broader than the court describes. But I want to highlight why Part II.A is incorrect.

Here’s the crucial passages from the court on this issue (all quotations include some light editing):

Plaintiff contends defendants have violated the Electors Clause by failing to appoint the state’s presidential electors in the “Manner” directed by the Wisconsin Legislature. By this, plaintiff means that he has raised issues with the WEC’s guidance on three issues related to the administration of the election. This argument confuses and conflates the “Manner” of appointing presidential electors—popular election—with underlying rules of election administration. As used in the Electors Clause, the word “Manner” refers to the “[f]orm” or “method” of selection of the Presidential Electors. Chiafalo, 140 S. Ct. at 2330 (Thomas, J., concurring) (citations omitted). It “requires state legislatures merely to set the approach for selecting Presidential electors.” Id. Put another way, it refers simply to “the mode of appointing electors—consistent with the plain meaning of the term.” Id.; see also McPherson v. Blacker (1892) (“It has been said that the word ‘appoint’ is not the most appropriate word to describe the result of a popular election. Perhaps not; but it is sufficiently comprehensive to cover that mode…”).

The approach, form, method, or mode the Wisconsin Legislature has set for appointing Presidential electors is by “general ballot at the general election.” Wis. Stat. §8.25(1). There is no dispute that this is precisely how Wisconsin election officials, including all the defendants, determined the appointment of Wisconsin’s Presidential Electors in the latest election. They used “general ballot[s] at the general election for choosing the president and vice president of the United States” and treated a “vote for the president and vice president nominations of any party is a vote for the electors of the nominees.” Absent proof that defendants failed to follow this “Manner” of determining the state’s Presidential Electors, plaintiff has not and cannot show a violation of the Electors Clause.

Plaintiff’s complaints about the WEC’s guidance on indefinitely confined voters, the use of absentee ballot drop boxes, and corrections to witness addresses accompanying absentee ballots are not challenges to the “Manner” of Wisconsin’s appointment of Presidential Electors; they are disagreements over election administration. Indeed, the existence of these (or other) disagreements in the implementation of a large election is hardly surprising, especially one conducted statewide and involving more than 3.2 million votes. But issues of mere administration of a general election do not mean there has not been a “general ballot” at a “general election.” Plaintiff’s conflation of these potential nonconformities with Constitutional violations is contrary to the plain meaning of the Electors Clause. If plaintiff’s reading of “Manner” was correct, any disappointed loser in a Presidential election, able to hire a team of clever lawyers, could flag claimed deviations from the election rules and cast doubt on the election results. This would risk turning every Presidential election into a federal court lawsuit over the Electors Clause. Such an expansive reading of “Manner” is thus contrary both to the plain meaning of the Constitutional text and common sense.

Oddly, the Court relies on Justice Clarence Thomas’s concurring opinion in Chiafalo v. Washington. And this is the part of the concurring opinion where Justice Neil Gorsuch, the only other justice who joined part of Justice Thomas’s approach, did not join.

Here’s what Justice Elena Kagan (for eight justices) had to say about the clause:

Article II, § 1’s appointments power gives the States far-reaching authority over presidential electors, absent some other constitutional constraint. As noted earlier, each State may appoint electors “in such Manner as the Legislature thereof may direct.” Art. II, § 1, cl. 2. This Court has described that clause as “conveying the broadest power of determination” over who becomes an elector. McPherson v. Blacker (1892). And the power to appoint an elector (in any manner) includes power to condition his appointment—that is, to say what the elector must do for the appointment to take effect. A State can require, for example, that an elector live in the State or qualify as a regular voter during the relevant time period.

Right off the top, the majority in Chiafalo has a much more expansive view of the “manner” power than Justice Thomas’s view—and the Wisconsin district court. It is “far-reaching,” it is "the broadest power,” it “includes the power to condition” an elector’s appointment. It is more, in other words, than the “form” and “method.”

But it’s also worth working backwards for a moment. The court describes these things as “issues of mere administration of a general election.” Where is the State authority—legislative or otherwise—to develop issues of “mere administration” of a federal election?

The constitutional allocation of power over elections

Under the majority view—the view of, among others, Justice Joseph Story, and of a majority of the Court in U.S. Term Limits v. Thornton and Chiafalo—the Constitution sets forth a framework to empower States to regulate federal elections. Before the existence of the Constitution, there was no power anywhere to regulate federal elections because, well, there was no federal government. But the creation of federal elected offices under the Constitution meant that the allocation of authority had to lodge somewhere. The Constitution parcels how that power for both congressional and presidential elections. It sets out rules about who is qualified to be elected to those offices; who is eligible to vote for those offices; and who gets to regulate the times, the places, and the manner of holding those elections.

Under this majority view, that is the exclusive source of the authority over the election of all federal offices—some provision of the federal Constitution.

Where, then, does the power over “issues of mere administration of a general [federal] election” come from?

If it does not come from the Constitution, we’ve already reached a problem. The minority position—the losing position that Justice Thomas articulated in both Term Limits and Chiafalo—is that such power is inherent in the States as understood through the Tenth Amendment.

One could, then, accept that “manner” has a very narrow definition and that residual authority over elections is inherent in the States under the Tenth Amendment. But that’s been the position rejected by the Supreme Court and, I think, is not the best way to think about how the Constitution structures the allocation of power over federal elections.

The intratextual use of the word “manner”

There’s another intratextual problem, too. The Constitution grants State legislatures the power to direct the “manner” of appointing electors in the Presidential Electors Clause, and it also grants them the power over the “manner” of holding congressional elections in the Elections Clause. There is, as one commenter put it, “little reason” to believe that the scope of power is substantially different. Professor Michael Morley has likewise recognized that these two clauses have been construed “in pari materia.”

One of the most famous articulations of the scope of the “manner” of holding congressional elections came from James Madison during the ratification debates:

Whether the electors should vote by ballot or viva voce, should assemble at this place or that place; should be divided into districts or all meet at one place, should all vote for all the representatives; or all in a district vote for a number allotted to the district; these & many other points would depend on the Legislatures. and might materially affect the appointments.

The Supreme Court in Smiley v. Holm adopted a similarly broad understanding:

[T]hese comprehensive words embrace authority to provide a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns; in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved

In short, the more widely-recognized scope of the Elections Clause extends quite broadly. Indeed, it extends broadly precisely because Congress must have the power to supersede state laws in this area—a narrow conception of “manner” would not work. Note how Justice Antonin Scalia described the scope of the power in Arizona v. Inter Tribal Council of Arizona:

The Clause’s substantive scope is broad. “Times, Places, and Manner,” we have written, are “comprehensive words,” which “embrace authority to provide a complete code for congressional elections,” including, as relevant here and as petitioners do not contest, regulations relating to “registration.” Smiley v. Holm (1932) ; see also Roudebush v. Hartke (1972) (recounts); United States v. Classic (1941) (primaries). In practice, the Clause functions as “a default provision; it invests the States with responsibility for the mechanics of congressional elections, but only so far as Congress declines to preempt state legislative choices.” Foster v. Love (1997) (citation omitted). The power of Congress over the “Times, Places and Manner” of congressional elections “is paramount, and may be exercised at any time, and to any extent which it deems expedient; and so far as it is exercised, and no farther, the regulations effected supersede those of the State which are inconsistent therewith.” Ex parte Siebold (1880).

A broad conception of “manner” does not risk indefinite litigation after each election

The district court creates a worrisome concern of the Presidential Electors Clause included a broad scope of the power to define the “manner” of appointing electors: “[A]ny disappointed loser in a Presidential election, able to hire a team of clever lawyers, could flag claimed deviations from the election rules and cast doubt on the election results. This would risk turning every Presidential election into a federal court lawsuit over the Electors Clause.”

That’s simply not the case. The district court conflates the scope of the State legislature’s authority under the Presidential Electors Clause (which is broad) with those circumstances in which deviations from it might rise to the level of running afoul of the so-called “independent state legislature doctrine.” That is, part of Mr. Trump’s argument was that the administration of Wisconsin rules was inconsistent with the legislative scheme in such a way as to call into doubt whether the “legislature” of the state actually created the rules.

Never mind that Part II.B of the opinion notes that the election did conform with legislative rules—albeit some administrative delegations that allowed the Wisconsin Election Commission to apply the legislature’s statutes.

But it’s also worth emphasizing that even if a party sues, that party may still not win. And that’s certainly the case with the independent state legislature doctrine. Consider how Chief Justice William Rehnquist articulated how federal courts would review a state practice in Bush v. Gore:

Isolated sections of the code may well admit of more than one interpretation, but the general coherence of the legislative scheme may not be altered by judicial interpretation so as to wholly change the statutorily provided apportionment of responsibility among these various bodies.
…
What we would do in the present case is precisely parallel [to other cases]: hold that the Florida Supreme Court's interpretation of the Florida election laws impermissibly distorted them beyond what a fair reading required, in violation of Article II.
…
[The Florida Supreme Court] significantly departed from the statutory framework.

While the independent state legislature doctrine remains controversial—particularly judicial application of it—and while its contours remain underdefined, not every deviation will yield a successful claim. True, a losing candidate could “flag” any deviation it wanted in a federal court. But surely, most of the time, those claims would fail.

If anything, it’s a reason to construe the independent state legislature doctrine narrowly—not to construe the “manner” provision of the Electors Clause narrowly.

*

Again, I agree with the underlying result that this case—effectively a request to declare the election unconstitutional and “remand” to the Wisconsin legislature (which is a nonsensical remedy). But this one statement of law, I think, is incorrect, and I hope this post provides the context as to why. If the Seventh Circuit chooses to hear the appeal, it is my hope that it would clarify at least this portion of the opinion.

UPDATE: A district court in Georgia used the same device here, relying on Justice Thomas’s opinion to describe the scope of the “manner” to direct the appointment of presidential electors.

Why isn't Mike Pence listed as a party in some of Donald Trump's post-election lawsuits?

I noticed that when President Donald Trump filed a motion to intervene in Texas v. Pennsylvania before the Supreme Court of the United States, Vice President Mike Pence was not listed as a co-intervenor. I then saw in the Wisconsin federal district court litigation that Trump v. Wisconsin Election Commission does not include Mr. Pence, either. Maybe there are more.

Several lawsuits are raised by electors, voters, or public interest organizations. Others are from the Donald J. Trump for President, Inc. campaign entity itself. And Mr. Pence is sometimes listed as a party in some such litigation (like the Wisconsin recount petition).

But looking back to, say, Bush v. Gore, we see that it’s not simply George W. Bush named as a party, but also his vice presidential candidate Richard Cheney; and it’s not simply Albert Gore, Jr. named as a party, but also his vice presidential candidate Joseph I. Lieberman.

One would expect that litigation of individual candidates on a presidential ticket would include both the presidential and vice presidential candidates. But these two cases, at least, indicate, I think, some daylight between Mr. Trump’s litigation interests and Mr. Pence’s.

UPDATE: A lawsuit filed in Georgia on December 31 asking for “decertification” of the state’s vote was another in this line of lawsuits.

Parsing the holdings in Texas v. Pennsylvania

There’s already been a lot written about the Court’s brief statement in Texas v. Pennsylvania, but I thought I’d offer my sense of the holdings. Here’s the Court’s order issued December 11, 2020:

The State of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.

Statement of Justice Alito, with whom Justice Thomas joins: In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction. See Arizona v. California, 589 U. S. ___ (Feb. 24, 2020) (Thomas, J., dissenting). I would therefore grant the motion to file the bill of complaint but would not grant other relief, and I express no view on any other issue.

Texas filed three motions: a motion for leave to file a bill of complaint; a motion for preliminary injunction and temporary restraining order or, alternatively, for stay and administrative stay; and a motion for “expedited consideration of the motion for leave to file a bill of complaint and for expedition of any plenary consideration of the matter on the pleadings if plaintiffs’ forthcoming motion for interim relief is not granted.”

The Court, I think, had four holdings:

First, does 28 U.S.C. § 1251(a) allow the Court to decline a motion for leave to file a bill of complaint in an “original and exclusive jurisdiction” case? The Court divided 7*-2 on this issue in concluding that yes, it can decline. And it’s not a surprise, as I told a reporter last week: Justices Clarence Thomas and Samuel Alito have repeatedly in other cases argued that the Court may not decline the motion.

Second, if the Court is allowed to decline such a motion, should the Court grant the motion for leave to file a bill of complaint? By a 7*-0 vote (an issue Justices Thomas and Alito would not reach), the Court said no, and the Court declined the motion for leave. The Court did not need to give a reason, but here it did—because, the Court noted, Texas lacked standing.

Third, should the Court grant the motion for preliminary injunction and temporary restraining order or, alternatively, for stay and administrative stay? By a 9*-0 vote, the Court said no—7* justices because the answer to the Second holding (above) rendered the motion moot, and 2 justices (Thomas and Alito) because of unarticulated reasons (more on this in the closing thoughts below).

Fourth, should the Court grant the motion for expedited consideration, etc.? By at least a 7*-0 vote, the Court said no, as all other motions were “dismissed as moot.” It is not clear whether Justices Thomas and Alito thought so—the separate statement indicates they “would not grant other relief,” but expediting the proceedings is not really a request for “relief.”

One last wrinkle: did Justices Thomas and Alito, in their statement that they “would not grant other relief,” opine on whether they would grant relief requested in the complaint? I don’t think so. Granting the motion for leave to file a bill of complaint would open the process up to the ordinary rules of civil cases, including allowing the defendant States to file an answer, or a Rule 12 motion to dismiss, and so on. (No State filed such a motion.)

It’s possible that this ambiguity should be construed as Justices Thomas and Alito agreeing to grant the the motion, but turning around and sua sponte rejecting the relief sought in the complaint for lack of standing or on the merits (for unarticulated reasons). But the phrase, “I express no view on any other issue” suggests that this isn’t the case.

In closing, that’s how I parse this case at the moment. And I don’t think it tells us really anything about any justices’ thoughts on the merits. But it does suggest that even Justices Thomas and Alito saw no likelihood of success on the merits, as their denial of the motions for preliminary injunction, etc. suggest as much.

*UPDATE: Jon Endean in the comments helpfully points out that because the justices are not on the record, we do not know if all of them agreed. Some may have disagreed but were not on the record about it. So it could be only 5 or 6 justices instead of 7, or it could be 7 or 8 justices instead of 9. And it’s entirely fair to emphasize that the “shadow docket” does not formally record all of the justices’ positions. So my instinct is that if a justice disagreed, she might write separately; but that is not necessarily the case, and so I include the asterisks.

How to watch the meetings of presidential electors across the states

This year’s convening of the Electoral College in fifty states and the District of Columbia should be relatively uneventful. But they’ll also be mostly closed to the public due to the pandemic. States, however, commonly stream these proceedings. If you’d like to watch them, I’m compiling the timelines of when the meetings occur with links to live streams where available. Please note that if a state has an * beside it, it means that’s the presumed time of the meeting, not yet confirmed (or confirmed by me, at least!). (C-SPAN will cover some of these. More details from Election Law at Ohio State. More links at the Washington Post.)

10 am ET
Indiana (stream)
New Hampshire (stream)
Tennessee (stream)
Vermont (stream)

11 am ET
Arkansas (stream)
Illinois (stream)
Oklahoma
Mississippi
South Carolina (stream)

11:30 am ET
Delaware (stream)
Iowa (stream)
Nevada (stream)

11:45 am ET
Kentucky

12 pm ET
Arizona (stream)
Connecticut (stream)
Georgia (stream)
Maryland (stream)
New York*
North Carolina (stream)
Ohio (stream)
Pennsylvania (stream)
Rhode Island (stream)
Virginia (stream)

12:30 pm ET
Louisiana (stream)

1 pm ET
Alabama (stream)
Kansas (stream)
Minnesota (stream)
South Dakota*
Wisconsin (stream)

2 pm ET
Colorado
Florida (stream)
Idaho (stream)
Maine (stream)
Michigan (stream)
New Mexico (stream) [meeting begins at 1 pm & reconvenes at 2 pm for voting]
North Dakota (stream)
Utah*
West Virginia (stream)
Wyoming*

3 pm ET
Alaska (stream)
Massachusetts (stream)
Missouri (stream)
Nebraska
New Jersey*
Texas (stream)
Washington (stream)

4 pm ET
Montana*

4:30 pm ET
Oregon (stream)

5 pm ET
California (stream)

7 pm ET
Hawaii (stream)

TBD
District of Columbia

The very speedy timing of congressional election contests in Iowa

Last month I highlighted the path forward in Iowa’s Second Congressional District race. After the unofficial Election Day tally ended at a 47-vote margin for Mariannette Miller-Meeks over Rita Hart, Ms. Hart requested a recount. The recount narrowed the margin to just six votes, a margin that the state will likely ratify today. Ms. Hart may well file an election contest.

While one might be inclined to think that such disputes could languish for months, as the 2008 Coleman-Franken Senate contest in Minnesota lasted for several months deep into 2009, that’s not the case under Iowa law. An election contest will wrap up by December 8.

The contest court is created under Iowa Code § 60.1:

The court for the trial of contested elections for presidential electors or for the office of senator or representative in Congress shall consist of the chief justice of the supreme court, who shall be presiding judge of the court, and four judges of the district court to be selected by the supreme court, two of whom, with the chief justice, shall constitute a quorum for the transaction of the business of the court.

The rules are open-ended, and the timing is very fast under § 60.5:

The clerk of the court shall, immediately after the filing of the statement, notify the judges herein named, and fix a day for the organization of the court within two days thereafter, and also notify the parties to the contest. The judges shall meet on the day fixed, and organize the court, and make and announce such rules for the trial of the case as they shall think necessary for the protection of the rights of each party and a just and speedy trial of the case, and commence the trial of the case as early as practicable thereafter, and so arrange for and conduct the trial that a final determination of the same and judgment shall be rendered at least six days before the first Monday after the second Wednesday in December next following.

Note that the rules are “as they shall think necessary for the protection of the rights of each party and a just and speedy trial of the case.” Flexible, to be sure.

But why so fast? Why does the Code urge resolution by December 8 when the complaint in the contest could only be filed after state certification, November 30?

Well, in presidential election disputes, the “safe harbor” under 3 U.S.C. § 5 is six days before “the first Monday after the second Wednesday in December next following,” the date set by Congress for presidential electors to meet and vote.

Iowa Code links presidential election contests with other federal office contests. But the timeline is the same.

Before 1970, Iowa didn’t even have a congressional election contest procedure. Contests after a recount would be left to Congress. But in 1970, the state legislature added a provision to the code to allow for congressional election contests in the same fashion as presidential election contests. (Now-Senator Chuck Grassley was among those voting for this bill in the Iowa legislature!)

And in Iowa, “[t]he right to contest an election is only conferred by statute,” as the late Chief Justice Mark Cady once wrote, such that “contestants must strictly comply,” and “contestants are limited to the scheme provided by the legislature.”

While one might think that presidential election contests ought to operate differently from congressional election contests, it’s up to a state to decide how contests should proceed. And Deschler’s Precedents require exhaustion of state legal remedies before raising a challenge in the House of Representatives.

Then again, maybe there are good reasons to link the timing. It requires expeditious solutions to ensure that Iowa’s congressional delegation is fully represented (unlike Minnesota’s extensive vacancy). It guarantees members of Congress will have certification to present when the new Congress is seated January 3, even if there might be an election contest. And those members of Congress get to participate in the counting of electoral votes January 6, too.

Under the contest timing that the Iowa legislature has expressly provided, the contest period is very speedy—and in the event a contest is filed, the court must give a resolution by December 8.

Recounts and contests--a look ahead in the 2020 Iowa Second Congressional District election

Iowa’s Second Congressional District election is a close one. Shortly after Election Day, Republican candidate Mariannette Miller-Meeks appeared to hold a 282-vote lead over Democratic candidate Rita Hart, heading into a recount. A “clerical error” in Jasper County altered these totals to show Ms. Hart up by 162. That led to a recount in Jasper County and a hand recount in one precinct. Lucas County added a batch of votes that pushed the race back in favor of Ms. Miller-Meeks by 34 votes as of 8 am November 10. (Latest results here.) That’s less than one-hundredth of one percent separating the candidates, and about twenty times the write-in vote total. Those vote totals could still change today as counties finalize the canvass today (Iowa Code § 50.24). Among nearly 400,000 votes cast, it’s an extremely narrow margin.

What’s next? (For all references to the Iowa Code, see here.)

Recount: Candidates may request recounts of particular precincts or counties by the end of the week (Iowa Code § 50.48(1)). Recount boards are to be assembled and begin their work by November 17 (§ 50.48(3)). Recounts are to be completed by November 28 (§ 50.48(4)(c)) so that certification can happen by November 30 (§ 50.38).

Unfortunately, Iowa does not have an automatic recount provision in close races. It also does not automatically require that the entire district be recounted—something, I think, that’s a concern after Bush v. Gore, which expressed concern that different treatment of recount procedures across counties in a statewide election violated equal protection. (Professor Michael Morley has some thoughts about how lower courts have construed the scope of Bush v. Gore here.) But those are for another day, and a legislative solution, perhaps.

It’s not clear whether a recount would change much at all. The Jasper County recount netted Ms. Hart two votes; the subsequent manual recount in one precinct netted Ms. Miller-Meeks one vote. (Optical scan systems are quite good!)

It’s also not clear whether there are many absentee or provisional ballots for the candidates to challenge beyond the recount (which extends only to “ballots which were voted and counted for the office in question”). Iowa has a generous absentee ballot laws, which results in few being rejected; and it has very few provisional ballots given same-day registration and a fairly generous voter identification law that allows for “attesters” in lieu of identification. I haven’t seen public figures about these ballots, but if they’re not counted, they aren’t part of the recount under § 50.48(4)(a).

Contest in Iowa: If a candidate is disappointed with the results of the recount, she may file a contest within two days of the final statewide returns. The “contest court” consists of a five-member ad hoc tribunal: “the chief justice of the supreme court, who shall be presiding judge of the court, and four judges of the district court to be selected by the supreme court.” (§ 60.1) This contest court shall “make and announce such rules for the trial of the case as they shall think necessary for the protection fo the rights of each party and a just and speedy trial of the case.” (§ 60.5.) (Not exactly a lot of guidance.) The objective is to complete judgment by December 8. (This meets the federal “safe harbor” for presidential election disputes, but this provision of the contest rules applies to both presidential and congressional election contests.)

Contest in Congress: There’s one more place for the losing candidate to go—Congress. Congress has the power to judge the elections and returns of its members. Such contests are rare, but they do happen, like out of Florida’s Thirteenth Congressional District in 2006 (which was dismissed). That would be the last stop for January 3, 2021, when the new Congress is seated.

I don’t know what will happen as the last votes come in and as recount challenges proceed, but I’m anticipating the every potential step in the road given how exceedingly close the election has been and how dynamic the counting has proceeded.

No, the Electoral College will not give the presidency to Donald Trump

On November 13, 2016, I wrote a post entitled, “No, the Electoral College will not give the presidency to Hillary Clinton.” Supporters of Mrs. Clinton, heartbroken at her loss and in denial that Donald Trump could be the next president, plotted an ultimately-unsuccessful attempt for “faithless” electors to cast their votes for someone other than Mr. Trump.

I might as well update the post four years later with the same thing, because it feels like déjà vu, with some updates to what I wrote.

*

There is a nascent but rapidly growing effort from supporters of Mr. Trump to persuade presidential electors who would otherwise support Joe Biden to cast votes for Mr. Trump instead when the Electoral College meets December 14. Absent an extraordinary change of circumstances, it simply won't happen. Mr. Biden will win a majority of electoral votes on December 14 and ultimately become the 46th president of the United States.

It's worth noting that a lot of options to affect the presidential outcome have long since passed--usually, waiting until after the election is not a good idea to affect an election.

State legislatures could choose their own electors instead of leaving the matter to a popular vote; but after those states chose to a popular vote November 3, that strategy is not an option.

Parties could also select electors inclined to support their preferred candidate even if not formally the party’s nominee. The electors, however, have already been selected. (Indeed, parties have become more cautious about how they choose presidential electors, as I anticipated would happen in 2016. That further reduces the likelihood of any “faithless” electors.)

Instead, the only strategy for Mr. Trump’s supporters (as legal challenges and recount opportunities look increasingly unlikely to alter the results) is to turn to the Electoral College itself and persuade electors to be "faithless"--that is, persuade them to vote not for Mr. Biden, to whom they pledged (formally or informally) their support, but Mr. Trump.

First, it's worth noting that these are loyal Democrats who were selected as Biden electors. Many of them are loyal Biden supporters on top of that. The list of viable options, then, is limited to those who oppose Mr. Biden--and not just oppose him, but affirmatively prefer Mr. Trump (more on that point below), because the act of being “faithless” is an act, essentially, of support for the runner-up. And this after Mr. Biden has won the election (at least, by all popular reports). It might be that Mr. Biden is not overly popular with some in the Democratic Party. But convincing these electors now to vote for someone else seems impossible.

Furthermore, these are electors in states that cast a plurality of their votes for Mr. Biden. Going to them and telling them to ignore the wishes of the voters in their own state for the wishes of Trump supporters is even more unlikely.

Second, the electors might need to flip to Mr. Trump, and not simply refuse to vote for Mr. Biden. In order for a candidate to win, he must secure 270 electoral votes. If he fails to do so, the race is thrown to the House of Representatives, where each state receives one vote, and a majority of the states (26) is required to secure the presidency. Even if enough Biden electors threw all their votes to, say, John Kasich, no one would have a majority, and the election would go to the House. While Democrats look to maintain control of the House, Republicans look to hold 26 state delegations (i.e., the majority), with perhaps 27 or 28. It’s true that the House could then vote for Mr. Trump on the heels of these faithless electors, but it remains a possibility that some Republicans in the House would be unwilling to do so.

It’s worth add that in the last 100 years or so, exactly zero “faithless” electors have “flipped” their support from the presumptive winner to the runner up.

Third, the margin of victory is onerous for Mr. Trump’s supporters. It appears Mr. Biden has won at least 290 electoral votes, meaning 21 electors would need to switch to Mr. Trump to deny Mr. Biden a majority, 22 electors to give Mr. Trump a majority, and 23 or 24 electors to account for Mr. Trump’s own possible "faithless" electors. Mr. Biden’s totals may well reach 306 electoral votes, meaning the numbers increase to 37, 38, and 39 or 40. (One can quibble over the numbers, of course. If Arizona swings back in Mr. Trump’s favor, perhaps it’s 295 for Mr. Biden. But these figures are all substantially over 270, and each vote margin becomes more difficult to overcome.)

These are Herculean numbers under almost any scenario. Consider that in the last 100 years (before 2016), just nine (depending on your math) electors have been "faithless" and voted for someone other than the person pledged to support. Granted, no such concerted effort has been made to change electors' minds. Robert M. Alexander has surveyed presidential electors and discovered that serious lobbying efforts have occurred before, and that about 10% of electors in previous elections have considered voting for someone else--but did not do so.

After the 2016 election, seven electors cast faithless votes. But five of those were supporters of Mrs. Clinton, the runner-up. Just two faithless electors cast votes against Mr. Trump—and neither threw their support behind Mrs. Clinton.

Fourth, several states bind their electors to the individuals they are pledged to support. Since the Supreme Court’s decision in Chiafalo, and since states like Washington and Iowa have tightened their faithless elector laws in the last four years, It would either limit the pool of possible electors who could change their minds or stir litigation, possibly in multiple states, that would inspire even greater complexity, particularly if Congress is faced with multiple slates of electors.

*

In short, there is no realistic chance that the Electoral College will change the result of this election. This is different than saying it is not legally possible; as I've noted and defended repeatedly, electors are permitted to vote for whomever they desire—it is that there is essentially no likelihood enough of the would do so in such a way to change the outcome of the election. Circumstances change, of course, and something might still inspire a significant number of electors to change their minds and vote for someone else. But the odds are low. And we have fairly settled expectations that our electors will not be "faithless," something unlikely to change in the weeks ahead.

A far different look between pre-Election Day and post-Election Day legal disputes

The hundreds of pre-Election Day disputes, many of which were initiated or pursued by the major political parties and their presidential candidates, were all over the map in their approaches, from disputing eligibility of candidates to appear on the ballot to disputing implementation of certain kinds of voting procedures.

But the challenges after Election Day look very different and are much narrower for a variety of reasons.

First, of course, is the margin. If a candidate wins by a wide margin in a state, there’s futility in the challenge (or less value in the challenge if you’re the winning candidate!). That sharply narrows the places for disputes.

Second is looking at the types of legal challenges to ballots. And this is because once you’ve scrambled the egg, it’s impossible to unscramble. That is, once ballots have been cast, commingled, and counted, it’s impossible to figure out which ballots should be excluded.

That’s also due in part to a reliance interest—that is, if voters entered the polling place on Election Day expecting the rules to look one way, then all their votes should be counted together.

Now, there are some batches of ballots that might be in dispute—subject, of course, to the first caveat of margin. Those include:

Provisional ballots, those cast that have some defect like a lack of identification or sufficient proof of residence. They might be cured in some limited period of time after Election Day, or they might be counted if some contingent event happens (e.g., if someone requested an absentee ballot but failed to surrender it at the polls, a state might count the provisional ballot if that absentee ballot never arrives to be counted).

“Discovered ballots,” those “found” after Election Day—it might be negligence or error that failed to include a batch, or it might be claims of fraud. If those weren’t originally included in an original count, there might be disputes over whether they should be counted if there are chain of custody concerns.

Late-arriving ballots, those postmarked on or before Election Day but counted within a set period of time after Election Day. Some states authorize this by statute, others have had judicial decisions, consent decrees, or administrative rules extending the deadline.

A subset of late-arriving ballots are segregated ballots in states like Pennsylvania and Minnesota, already subject to judicial challenge as a kind of late-arriving ballot.

Rejected absentee ballots, due to, for instance, disputes about signature matches.

Ballots not recognized as votes, either by tabulation machines, or that were otherwise manually counted.

Physically damaged ballots that were duplicated by election officials—in some states, if a ballot is torn, smudged, or damaged in some other way, an election official might “duplicate” the ballot so it can be read by the machine.

UPDATE: Special thanks to Professor Michael Morley for supplementing these categories!

Much of these batches, including most provisional ballots and many late-arriving ballots, are mostly beyond material legal dispute. That is, they are authorized under state statute, and challenges about their application would apply only to narrow subsets of ballots.

Or, in recount, one could fight tooth and nail in manual tally about whether to count or exclude this ballot or that based on this marking or that. Again, it’s very piecemeal and narrow.

The most extreme outcome would be to invalidate an election because of uncertainty over the winner. But that extreme outcome comes usually from evidence of pervasive fraud or some systemic question about the election, which requires extensive evidence.

In short, once the egg is scrambled—once a bunch of ballots are commingled and counted under existing rules without a sound hook to challenge those decisions (or under lawsuits that refused to prohibit those decisions)—those ballots are pretty much locked in absent something pretty egregious like pervasive fraud or unusual recount procedures. (It might be that some machines were operating in error, too, but there are a thousand uncertainties….) As for the remaining batches of ballots, they are a fixed universe with fewer viable challenges and far fewer at a systemic level.

We’ll see what litigation (or threats of litigation!) look like in the days ahead, and what kinds of additional precision this quick blog post might have as potential challenges arise. But it’s a portrait of how significantly different these challenges might be—at least, challenges filed in court.