Anyone who thinks he knows how things will develop when the Electoral College votes are counted on January 6 is probably smoking something. In theory, since all the electors have been “certified,” there’s nothing the legislatures can do now. To quote Porgy and Bess, “It ain’t necessarily so.”
Article II, Section 1 of the Constitution says, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…” The date is set by Congress in 3 USC 7. 3 USC 15 sets the January 6 date for counting the electoral votes. Neither date is in the Constitution. The only date in the Constitution is noon on January 20, which is when the term of the president ends.
The Supreme Court plainly stated in Bush v. Gore that the power of the legislatures is presidential elections is “plenary.” That means that the legislatures can do pretty much anything they want. The Florida legislature can, after the fact, declare that Florida’s EC votes for Donald Trump will be thrown out and votes will be cast for Joe Biden. Or vice versa in Georgia and so on. And they can do it at any time before the actual count in DC. That’s a pretty radical thought, but fully supported by the case law cited in Texas v. Pennsylvania. The state legislature is the final authority. If the voters in the state get mad, there’s another election coming for them to settle that score.
If the Georgia Legislature wants to change the certification of electors and their vote, they have to get together to vote before Congress meets on January 6. In Georgia, the governor ordinarily has to call them into a special session, and Governor Kemp has shown no inclination to do so. But the US Constitution, under which the state constitution operates, says otherwise.
“Wait!” you say. The US Constitution doesn’t have any language about how legislatures are called into session. That’s true, but completely irrelevant. Under Bush v. Gore, that “plenary” power of the legislature over electors means that they can call themselves into session, sua sponte. They don’t need the governor to do anything.
Put bluntly, every state legislature can do this. It doesn’t have to be just the contested six or seven. But those are the ones with a motivation to act. In Pennsylvania and Georgia, they may have a particularly strong incentive, since the governors and secretaries of state in both states were frankly hostile. In Georgia, it was an illegal consent decree that gutted safeguards for absentee voting. In Pennsylvania, it was a lawless suit that led to complete disregard for all standards established for the election.
But why would they bother? The electoral vote in each state has been certified. This brings us back to the 12th Amendment. “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” This sounds pretty simple. Open all the envelopes of electoral votes and count. But there’s a hitch here. In seven states (GA, AZ, WI, PA, MI, NV, NM) two slates of electors have sent certificates of their votes. Only one slate was certified by the Governor, but there will still be two envelopes. If both envelopes are opened and counted, 270 votes won’t be a majority. Joe Biden would have 306, and Donald Trump would have 316. That’s an impossible result, and there are confusing procedures on how to handle it, with the governor’s certification as the tie-breaker.
What if VP Pence decides to open only the Trump votes, declaring that the Biden votes were contrary to the will of the legislature? Again, the uproar would reverberate around the world. The VP has the authority, but martial law might be the short-term outcome.
What would happen if the legislatures met and voted? There are three major possibilities. First, they may choose to ratify the certified vote so that Biden wins. They could choose to certify the Trump electors so that Trump wins. The protests would again be impressive. Or they could choose a third route, simply voting to declare the election “in dispute.”
Declaring the election “in dispute” would countermand the certification of the Democrat slate made by the governor. Again, complaints would be deafening, but the legislature would be acting according to the facts in play. Several have held hearings where testimony of material malfeasance has been presented. So a contested election would be both the legal and factual truth. And the legislature would be saying that the state would present zero electoral votes to be counted because it’s not possible to determine which slate is correct.
The drama that follows on January 6 could follow several paths, almost all of them doomed to loud complaints. The simplest is count the “certified” votes and elect Joe Biden. But if some of the legislatures declare an election dispute, things get interesting.
If AZ, GA, MI, NV, PA, and WI all declare a dispute, the remaining vote is 232 to 222 in favor of Donald Trump. The president of the Senate, VP Pence, could then declare that Trump has won, since he has a majority of the actual votes. If he chooses to be less political, he could choose to say there is no winner, since no one has 270 votes. This would send the election to the House as a contingent election, where presumably the 27-23 Republican lead in states will re-elect Trump.
The cleanest answer comes from state legislatures acting to declare disputes. This would mean that VP Pence would not be an interested party making decisions that benefit himself like Thomas Jefferson did in 1800. But will the six state legislatures all vote? Not likely. This brings a different possibility into view.
I simply do not see VP Pence opening both sets of votes from contested states. That would lead to the House and the Senate separately voting on which set of electors to accept. While Republicans hold the majority in both houses, guaranteeing a Trump decision in each case is foolhardy. It’s possible, but very uncertain. But Pence has a different path available as president of the Senate, the ultimate authority in this situation.
Suppose that VP Pence chooses to declare the dispute on his own. He would be justified in doing so, since there is testimony to major malfeasance in all six states. He can declare that since election officials failed to follow state law, they did not conduct an election. If there is no election, then there are no electors. If Pennsylvania has dueling slates of electors, “certification” does not matter. Neither slate is legitimate. If a state has not submitted a valid slate of electors, then it has no votes to submit. VP Pence can then throw the certificates in the trash, leaving zero votes for Trump and zero for Biden from that state.
The potential scenarios would be enough for Alice to cry “Curiouser and curiouser!”
Ted Noel MD posts on social media as DoctorTed and @vidzette