Friday, December 18, 2020

And Now For Something Completely Different

Far be it from me to argue with legal scholars over the meaning of the Electoral Count Act.  But where Philip Rotner notes that law professors find conflicting ways to be confused about the statute, I think it's meaning, at least for Congressional purposes (no case on it is ever going to reach the Supreme Court; not in 2021, anyway), its meaning is pretty clear.

Congress shall be in session on the sixth day of January succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o’clock in the afternoon on that day, and the President of the Senate shall be their presiding officer. Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A; and said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from the said certificates; and the votes having been ascertained and counted according to the rules in this subchapter provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified. If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed, if the determination in said section provided for shall have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as have been appointed to fill such vacancy in the mode provided by the laws of the State; but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law; and in such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State. But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted. When the two Houses have voted, they shall immediately again meet, and the presiding officer shall then announce the decision of the questions submitted. No votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of.

I know, you're not a lawyer, the meaning there is as clear as mud.  Let me elucidate.

At a set date and time (1 p.m. on January 6 following a meeting and vote of the Electoral College), Congress meets in a joint session to do what the 12th Amendment requires.  And what is that?  Take another deep breath:

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;-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;-The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President-The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

I highlighted the pertinent bit.  The rest is contingency to prevent what happened in a Presidential election before the 12th Amendment was passed, early in the 19th century.  The ECA was passed to correct other problems with a presidential election in the late 19th century.  Now here we are in the 21st century, and wither our Presidential selection?

First, the ECA says this is how electoral votes are rejected (such votes are presumptively accepted):

 and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified. 

That language already cuts out the so-called "alternate electors" who are being bandied about by Trump supporters.  Such electors were not "lawfully certified according to section 6" (we'll get back to that section in a minute), so they can't be considered at all by Congress.   What we're getting at is precisely that issue:  what role does Congress play in the Presidential election at this point?  Is it purely ceremonial?  Or is it possibly substantive?  Well, here's the crux of the biscuit:

If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed, if the determination in said section provided for shall have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as have been appointed to fill such vacancy in the mode provided by the laws of the State; but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law; and in such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State

 In brief, where there is a contest about which electors are legally permitted to cast votes for who is to be the next President, electors are those who have been appointed according to section 5 of the ECA.  What does section 5 say?

If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.

That's the "safe harbor" provision.  All controversies about the appointment of electors (i.e., how the vote is conducted) determined at least 6 days before the date the electors meet, shall be conclusive.  That is, binding on Congress.  That's a fairly powerful argument for rejecting claims that electors from the "contested" states were not properly appointed, which really is the only possible objection a member of Congress can raise.  Oh, they may try to claim "fraud" and some nationwide conspiracy or even a "cloud" over the electoral process, but that's far too vague to upend this provision.  Those controversies have been given a final determination "by judicial or other methods or procedures...at least six days before the time fixed for the meeting of the electors."  There's been a lot of loose talk about legislatures being the only authority which can determine how electors are appointed; that is, judges and governors changing voting practices (extending time to vote, where votes can be collected, and how) are invalid because those are not legislative decisions.  If that issue is raised in Congress, "the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law."  And authorized by its law includes judicial decisions ruling on what that law means and/or requires.  Game over, IOW.

Now, on what grounds can the two Houses decide objections to the county must be upheld, outside of objections that there electors were not properly appointed?  Well, the popular argument, that courts can't change election laws, only legislatures can, founders on this very point.  Congress gets to decide that issue, if they want to.  If they don't want to, they don't have to.  They can just vote down the objections, and that's an end to the matter.  The statute doesn't outline what objections are permitted; but neither does it set out the grounds upon which the Houses and accept or reject the objections.  And both Houses must concur on any objection, or the objection fails.  So while a Representative and a Senator can agree on the language of an objection and trigger a vote of each house, that vote has to occur within two hours, and it has to be complemented by the vote of the other House.  It's kind of like the 25th Amendment, except in reverse.  That Amendment rightly makes it difficult to depose a sitting President absent impeachment; but it makes the implementation of the 25th so difficult it is inconceivable that it would ever be employed.  (Would the courts intervene on a suit by Trump claiming he was injured by Congress' failure to follow the law?  Nah.  Too vague, for one thing; and the decision would mean deciding the outcome of an election directly, rather than indirectly.  For reference, Bush v. Gore was "indirect," and that was probably too direct for the comfort of the court, even 20 years later.  They won't touch this turkey with a club.)

The ECA makes the denial of the electoral college vote so difficult that absent a presentation of multiple slates of electors arising from a real effort at battling appointments of electors arising from at least one state, the law has no real application.  Which means Trump has no avenue left to being forced to vacate the White House on January 20th.

And the report of Trump planning a round of Xmas pardons doesn't make it any more likely even the GOP Senate is going to look favorably upon his demands.

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