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.

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

Texas sued the wrong parties if it wants to stop presidential electors' votes from being counted

Texas v. Pennsylvania has a lot of problem as a lawsuit, not the least of which is Texas’s standing to bring a claim against what other states are doing.

But I wanted to focus on one remedial problem. Texas might (subject to many other caveats, of course—Professor Lisa Marshall Manheim highlights some of them) be able to seek relief against, say, the Commonwealth of Pennsylvania in the Supreme Court. But its real problem at this stage is the conduct of presidential electors. Those electors vote December 14 and send their votes to Congress.

Note some of the relief Texas seeks:

B. Declare that any electoral college votes cast by such presidential electors appointed in Defendant States Pennsylvania, Georgia, Michigan, and Wisconsin are in violation of the Electors Clause and the Fourteenth Amendment of the U.S. Constitution and cannot be counted.

…

F. Enjoin the Defendant States from certifying presidential electors or otherwise meeting [sic] for purposes of the electoral college pursuant to 3 U.S.C. § 5, 3 U.S.C. § 7, or applicable law pending further order of this Court.

Telling the States what to do is one thing. But what about Pennsylvania’s 20 presidential electors who meet Monday, December 14, to cast votes?

Asking the court to declare that "votes cast” by electors “cannot be counted” implicates two parties. First, it includes all presidential electors whose votes would be declared invalid. Those electors, however, are not named in the lawsuit. Second, it includes Congress, which is empowered under the Twelfth Amendment to “count[]” the votes of presidential electors. For the Court to instruct Congress not to count what is, in my judgment, a political question committed to Congress—and for the Court to do so without joining Congress as a party—is an inappropriate remedy.

It also seeks to enjoin states from “meeting for purposes of the electoral college,” but, I think, it’s poor drafting—it also is requesting, based on the context and the term “presidential electors” used just before “otherwise meeting” to prohibit the electors from meeting, as 3 U.S.C. § 7 authorizes them to do. Again, to enjoin the states is one thing, but there is no correlating opportunity to enjoin presidential electors (if that’s what Texas seeks).

While there’s plenty of commentary about this case out there (and I expect the Supreme Court to summarily dismiss the complaint in a matter of days, if not hours), I wanted to highlight this problem in the complaint. Essential parties—the presidential electors who vote December 14, and Congress as the one who decides which votes to count January 6—are not present. And, in my judgment, remedies targeting these entities would be even more significant than remedies seeking to enjoin state v. state activities.

Congress would stop the most rogue Electoral College scenarios in their tracks

I wanted to take a moment to point that, even under the most hardball of constitutional hardball scenarios, without suggesting anything about the legality of those other steps in the process, Congress would stop the most “rogue” Electoral College scenarios by January 6 and ensure that Joe Biden was named the next president.

Suppose some number of Republican-controlled state legislatures attempted to choose slates of electors to support Donald Trump that conflicted with the electors confirmed by the state’s election official as being won by Mr. Biden.

Suppose two slates of electoral votes were sent to Congress.

Suppose enough states did this to plausibly give Mr. Trump at least 270 electoral votes and Mr. Biden at least 270 electoral votes, counting all duplicates.

Suppose Vice President Mike Pence, presiding over the meeting on January 6, opted to read aloud from the slate of Republican electors.

(Each of these supposes comes with major legal questions and caveats, as I mentioned in the opening, but let’s just stipulate to all of them now.)

Immediately, I anticipate, at least one Democrat from each house would object, in writing. They would request that the Democratic slate of electors be counted in lieu of the Republican slate.

Each house would go to their separate chambers to vote.

The House, narrowly controlled by Democrats as of January 6, would assuredly vote to grant that objection.

The Senate would have at least 48 Democrats. To get to 51 (with a small caveat about whether the Senate would have 99 or 100 members after the new session began January 3 and the Georgia Senate runoff was held on January 5), Democrats would need just three Republicans to join them.

Four Senators—Senators Susan Collins, Lisa Murkowski, Mitt Romney, and Ben Sasse—have already congratulated President-Elect Joe Biden on his victory. At least three would likely join the 48 Democrats.

It is my sense, then, that even under this most egregious of rogue electoral vote scenarios that the Senate would join the House’s objection and insist on counting the Democratic slate instead of the Republican slate.

This, of course, might all change. And states might still try, regardless of the caveats above. But as I game out scenarios ahead of January 6, I do not see the most rogue Electoral College scenarios playing out in Mr. Trump’s favor.

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.

What's going on in the Colorado presidential elector case?

This July, the Supreme Court issued its decision in Chiafalo v. Washington, the “faithless elector” litigation. The Court concluded that Washington’s decision to fine its presidential electors who cast votes in violation of their promise to vote for the candidate they were pledged to support (i.e., the candidate who received the most votes in a statewide popular vote).

Colorado’s case—Baca v. Colorado Department of State—saw a slightly different fate. Because Justice Sonia Sotomayor recused due to a conflict of interest with the parties, the cases were not heard together. The Baca case presented some more complicated issues, procedurally and relating to the fact that the faithless elector was replaced, not fined.. And so the Supreme Court issued a per curiam decision sending the case back, for reasons stated in Chiafalo. Based on the slight record in the decision, however, it’s not quite clear to me that Baca would be so quickly resolved as Chiafalo.

The case was sent back to the Tenth Circuit, where it languished for a couple of months before being sent back to the District Court. As litigation proceeds, stuff happens in the interim. To start, the district court judge in Colorado who heard the case, Wiley Young Daniel, passed away in May 2019. It’s been reassigned. Today, the new judge issued an order (cleaned up):

ORDER: This matter is before the court sua sponte. The Supreme Court has resolved the appeal and reversed the judgment of the Tenth Circuit Court of Appeals. The Tenth Circuit has vacated its August 20, 2019 judgment and recalled its September 11, 2019 mandate. The Tenth Circuit has remanded to resolve any remaining issues in the case. To facilitate the court's just and speedy determination of this action, on or before November 20, 2020, the parties shall file a joint status report addressing the following: (1) the issues, if any, that this court must resolve on remand; (2) the prospects for settlement; and (3) anything else the parties wish to bring to the court's attention. This case shall be REOPENED. Status Report due on or before 11/20/2020. SO ORDERED by Judge Daniel D. Domenico on 10/19/2020.

Now, I may simply overread things—the parties may simply agree that Chiafalo is on point and dismiss the case. Or the district court agrees and tidies it up. Nevertheless, Colorado’s faithless elector law technically remains under litigation dispute under at least November 20—after Election Day, and before the Electoral College convenes….

What does it mean for a presidential election to be "independently certified"?

I didn’t watch the presidential debate (I typically don’t watch any of them), but someone alerted me to this question that arose, which I report from a transcript:

WALLACE: Alright, so wait a minute. Final question is, in eight states, election workers are prohibited, currently by law in eight states, from even beginning to process ballots, even take them out of the envelopes and flatten them, until Election Day. That means that it's likely, because there's going to be a huge increase in mail-in balloting, that we are not going to know on election night who the winner is. And it could be days, it could be weeks.

TRUMP: Could be months.

WALLACE: -- until we know who the new president is. So I first for you sir. Finally, for the, for the vice president. I hope neither of you will interrupt the other. Will you urge our supporters to stay calm during this extended period, not to engage in any civil unrest? Will you pledge tonight that you will not declare victory until the election has been independently certified?

That phrase “independently certified” is curious. Here are some ways of thinking what it might mean.

Presidential candidates can declare “victory” whenever they’d like, of course. But that can be rather embarrassing if they haven’t actually achieved victory (think “Dewey Defeats Truman” headlines).

So, presidential candidates often wait until the other major party candidate has formally conceded. That can be embarrassing, too—think Al Gore conceding in 2000, followed by George W. Bush declaring victory, only for Al Gore to retract it.

A candidate might wait, then, until a candidate concedes. But that also might require waiting when the facts otherwise indicate a candidate has lost. In 2004, for instance, John Kerry did not concede until the day after the election—apparently, consulting with attorneys about whether a challenge to the results in Ohio was feasible. Of course, Mr. Kerry was within his rights to do so.

Independently, however, news networks had “called” states in patchwork fashion, but in all cases refused to “call” at least 270 electoral votes for Mr. Bush until after Mr. Kerry conceded.

One might, then, say that news networks “certify” the outcome of the election—and networks are “independent” of the candidates. But that seems odd phrasing. Networks don’t really certify anything, they just call it based upon their predictive power. And different networks make different calls at different times. So one might say, “Don’t declare victory until a major news network calls it,” but that seems, well, again, odd.

One could turn to the actual entity that “certifies” elections—the state election authority. That’s not a great answer, either. In most states, formal certification can take well over a month. Even states that have a preliminary certification process take weeks. And, of course, no state certifies a result until all the ballots are in, which, as the moderator noted, could be weeks in some jurisdictions—much less that all the ballots are counted. But, it seems unrealistic, even in 2020, to require candidates to wait until at least 270 electoral votes’ worth of states have certified their results. Even then, legal challenges could remain.

In short, I don’t really understand the phrase “independently certified” here. Really, it means some general sense that some authority outside the campaign identifies the campaign as the winner. But beyond that, I don’t know how helpful it is.

Four (unlikely) ways the 2020 presidential election ends up in the House of Representatives

President Donald Trump recently noted that the presidential election could be “thrown” to the House. Speaker of the House Nancy Pelosi did the same. But how does this work? And how likely is it?

It happens when no candidate wins a majority of the Electoral College. The House (the new House, which is sworn in January 3, then counts electoral votes on January 6) then chooses among the top three vote-getters, with each state casting one vote. Vermont gets one vote; California gets one vote. It takes a majority (here, 26 states) to choose the next president. As occurred historically, a tie vote in a state’s delegation (say, one state with 26 representatives is 13-13) did not count toward that majority.

A so-called “contingent election” is rare. It happened in 1800, when it took 36 votes in the House before Thomas Jefferson was chosen as President. Since the Twelfth Amendment, it happened only once, after the 1824 election, when Andrew Jackson won a plurality of the electoral vote but John Quincy Adams carried the House vote in the contingent election. (The vice presidential election of 1836 was also thrown to the Senate.)

So, how can it happen? Briefly, there are four ways to look at it (with some sub-scenarios noted, and some even more unusual outliers omitted).

First, there’s a tie in the Electoral College. The 12th Amendment requires that the president receive “a majority of the whole number of electors appointed.” If two candidates tie at 269-269, the House chooses between those two candidates.

When did this last happen? Since the Twelfth Amendment, which separated presidential and vice presidential votes, never. (A tie did happen in 1800 under different presidential election rules.)

How is this scenario possible? Presidential electors are based on each state’s Senate and House delegation. The Senate always has an even number of Senators, because each state receives two. The House is currently fixed at 435 members, an odd number. The District of Columbia is guaranteed a number of presidential electors, but no more than the least populous state (which, at the moment, is three, two senators plus one representative). Even number (Senate) + odd number (House) + odd number (DC) = even number. (We could increase the size of the House to 436….)

What are the odds? Very low. FiveThirtyEight puts the odds of no one winning a majority (which includes a tie scenario and others, below) at less than 1 in 100.

Second, three or more candidates divide up presidential electoral votes on Election Day, and no one gets a majority.

When did this last happen? In 1824, four presidential candidates divided up the electoral votes. The top three vote-getters were then sent to the House. While Andrew Jackson had 99 electoral votes to John Quincy Adams’s 83 (but neither crossed 131, the number needed for a majority), the House ultimately backed Adams.

How is this scenario possible? It requires one or more strong third-party candidates. Because all states award their presidential electors on a winner-take-all basis (except for Maine and Nebraska, where it’s winner-take-all for two statewide, and winner-take-all, or really winner-take-each, per congressional district), a third-party candidate would need more votes than both the Republican and Democratic candidates in a state, and end up depriving those candidates of a majority in the Electoral College. Strong third-party candidates like Ross Perot in 1992 won zero electoral votes. Others, like George Wallace in 1968, won a substantial number of electoral votes but did not deprive a candidate of the majority in the Electoral College.

What are the odds? Very low—and here I’ll add, exceedingly low. FiveThirtyEight puts the odds of no one winning a majority (which includes a tie scenario and others, below) at less than 1 in 100. I’ve seen no state polling to suggest that any third-party candidate is close to exceeding even 5% of the statewide popular vote total.

Third, faithless presidential electors deprive the apparent majority-winner of electoral votes, and no one gets a majority.

When did this last happen? Never.

How is this scenario possible? When we vote for the president and vice president on Election Day, we’re actually voting for a slate of presidential electors who later formally vote for president and vice president. Those electors are typically “faithful” to the popular will of the people of the state. Sometimes, however, electors vote for someone else, behaving as “faithless” electors. Historically, however, faithless electors have been rare. They’ve been rarer still to defect from the majority vote-getter to someone else. This past Supreme Court term, the Court in Chiafalo approved of state moves to cabin the discretion of presidential electors. And the faithless electors in 2016 likely have prompted the parties to look closely at how they vet electors in 2020.

What are the odds? Very low, likely exceedingly low. It requires a narrow electoral vote victory (certainly plausible), and faithless electors denying a majority (not just faithless electors generally). Chiafalo reduces those odds further.

Fourth, the House rejects some number of electoral votes that denies any candidate of a majority.

When did this last happen? Never.

How is this scenario possible? There are a few ways it could occur, because Congress formally counts the vote. A state might not send electors to Congress (which seems unlikely in the present day). It could send a slate of electors, but Congress refuses to count them (like it did in Louisiana in 1872)—perhaps because Congress deems the votes not “regularly given.” It could choose between multiple slates of electors (which has only happened once since 1876, Hawaii in 1960), and end up with a tie (which has never happened). One wrinkle is that the winning candidate under the Twelfth Amendment is among those from “a majority of the whole number of electors appointed” (emphasis added). If Congress throws out votes, it depends on whether it includes those votes in the denominator of “electors appointed.” (In other words, if it throws out 20 electoral votes, it might go from a majority requirement of 270 of 538, to 270 of 538—with 20 votes not counting—or, instead, and easier to meet, 260 of 518.) In short, there are a number of complicated things that might happen in Congress, which would be unusual and historic decisions in Congress.

What are the odds? Well, again, likely on the verge of exceedingly low. Congress has been reluctant to throw out electoral votes since Reconstruction. Recent attempts to do so in Congress—Florida in 2000, Ohio in 2004, and a slate of states in 2016—lacked even modest support in Congress (only Ohio 2004 went to a congressional vote, where it was soundly defeated and Ohio’s votes were counted). It all depends on the complexity of the decisions left to Congress and Congress’s trust in the electoral outcomes—all with the added condition that these decisions ultimately deny any candidate a majority.

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In short, the 2020 presidential election could end up in the House, as it could have done for any presidential election in the last 195 years. There are plausible reasons to think up any one of these scenarios. But, I think, it’s worth thinking through, with some precision about these scenarios, and how they may or may not occur.