By Fred Lucas | The Daily Signal
Monday essentially will be the real presidential Election Day, or is scheduled to be, as electors gather in their respective state capitols to cast votes.
When voters pick their candidate for president on Election Day every four years, as well as in early and mail-in voting this year, they actually choose a slate of electors associated with a candidate.
Each of those electors later casts his or her vote for president on behalf of the state and according to its election results.
In past presidential election years, the day the Electoral College convenes to vote goes largely ignored, as most of the public stops paying attention after Election Day.
This year is different. Amid allegations of voter fraud, litigation in key states, and state legislative hearings, the public is more focused on the electors’ voting set for Monday.
In 2016, some Democrats attempted to raise the prospect of a Electoral College revolt to overturn the state results in the presidential election, but the haphazard effort was unsuccessful.
Major media outlets projected beginning Nov. 7 that former Vice President Joe Biden won the election by 306 electoral votes to President Donald Trump’s 232 electoral votes, with 270 needed to win. Trump hasn’t conceded, but has said he would do so if the Electoral College votes for Biden.
Here are seven things to know before the Electoral College meets, what’s different about this year, and what past controversies looked like.
1. Is Electoral College Sure to Vote Dec. 14?
It’s likely but not certain that electors will meet in each state Monday, as is the custom, to cast votes for president and vice president.
“Yes, there is time [to pursue legal issues],” Trump campaign lawyer Joe diGenova, a former U.S. attorney for the District of Columbia, said at a virtual press conference Tuesday, the deadline for states to certify electors.
DiGenova said that Dec. 14 is “not set in constitutional stone,” but “statutory stone,” adding:
They can be bent because if the Supreme Court were to find that there was fraud, that there were illegal ballots, that states violated their own constitutions allowing mail-in ballots, and the court were to nullify those votes, it could take enough time to have an oral argument in those matters and could issue an order saying the Electoral College would be postponed for a week or so. There is nothing in the Constitution that would prevent them from doing that. The dates for the Electoral College are not in the Constitution.
Texas sued Pennsylvania, Georgia, Wisconsin, and Michigan on Tuesday, alleging the four states imposed unconstitutional election rules and asking the high court to order them to conduct new elections. All four states made changes to the election laws without the approval of their legislatures, either through the state bureaucracy or state courts. [The Supreme Court rejected the lawsuit Friday evening, saying Texas lacked standing to bring suit.]
2. How Does the Electoral College Meet?
Traditionally meeting in their respective state capitols, electors in each state record their vote on six Certificates of Vote. Those will be paired Monday with six Certificates of Ascertainment, according to the National Archives and Records Administration, the agency that coordinates certain Electoral College functions between the states and Congress.
The electors then sign, seal, and certify the electoral votes.
A set of electoral votes consists of one Certificate of Ascertainment and one Certificate of Vote, according to NARA.
The certificates of results from each state are sent to multiple offices: Vice President Mike Pence, in his role as president of the Senate; each state’s secretary of state; the National Archives and Records Administration, and the presiding federal judge in the district where the electors meet.
The votes are provided to the judge as a backup copy to replace the official copy sent to the president of the Senate if votes are lost or destroyed, according to the National Conference of State Legislatures.
After that, all of the total electoral votes, or Certificates of Vote, must reach the president of the Senate and the National Archives and Records Administration no later than nine days after each state’s electors meet. This would be Dec. 23, two days before Christmas.
3. Can State Legislatures Appoint New Electors?
The Trump legal team has appealed to Republican-controlled state legislatures to appoint a new slate of electors in battleground states where they allege fraud occurred.
At this juncture, if any legislature acted to do this, it would delay voting by electors in that state.
The U.S. Supreme Court rejected an appeal Tuesday by Rep. Mike Kelly, R-Pa., seeking to disqualify mail-in votes received in Pennsylvania after Election Day or that were suspicious for other reasons.
Before the high court announced that ruling, diGenova had expressed hope that a victory in Pennsylvania would prompt state legislators there and in other battleground states to act.
“We hope that the momentum created by that decision will in fact wake up some state legislatures and make them have what are called electoral sessions,” diGenova said.
“Not joint sessions, not special sessions, but sessions the legislators themselves can call without the governor, without the secretary of state, and either give their electoral votes to Trump or deny either candidate the electoral votes—thus denying each candidate the necessary 270 electoral votes,” the former U.S. attorney and Trump lawyer said. “That’s what we’re shooting for. I think everything is proceeding in every other state.”
Each state legislature has the legal and constitutional power to appoint a new slate of electors that might contradict the popular vote count in that state, Hans von Spakovsky, a senior legal fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies and manager of Heritage’s Election Law Reform Initiative, said in an interview.
Depending on the state, it likely would require a change in state law before appointing new electors if the existing statute specifies that the popular vote determines the slate of electors.
“The U.S. Constitution gives state legislatures the power to appoint electors, but the state constitutions would specify how they go about doing that,” von Spakovsky told The Daily Signal.
Nevertheless, von Spakovsky said there is a slim chance that state legislatures would follow through on this strategy.
“I’m sure there would be all kinds of political consequences, no matter whether legislators did or didn’t do it,” von Spakovsky said. “Unless state legislators are presented with incontrovertible evidence the election was stolen in their state, I wouldn’t expect lawmakers to do anything like that.”
Legislatures absolutely have the right to appoint electors, but doing so after the popular vote is cast would raise numerous issues, said Jason Snead, executive director of the Honest Elections Project.
“The reality is the legislatures have the authority,” Snead told The Daily Signal. “But if you reverse the slate of electors after Election Day, that would raise legal and constitutional questions and lead to a vitriolic fight in Congress, where they would probably debate over two sets of electors.”
4. Does COVID-19 Change Anything?
Each state is taking its own measures regarding social distancing as electors prepare to meet.
Nevada, one of the closely contested states where the Trump legal team sued, is going to virtual voting. Secretary of State Barbara Cegavske, a Republican, will preside at a meeting conducted over Zoom. Nevada has six electoral votes.
A spokeswoman for the Nevada Secretary of State’s Office, Jennifer Russell, confirmed Thursday to The Daily Signal that the state plans to hold a virtual vote.
Some states have considered instituting remote processes and then having electors cast their ballots in person.
Small states such as Wyoming and Rhode Island have few electors (three and four, respectively) and social distancing inside a legislative chamber would not be a problem. States with many electors could have a bigger challenge.
For a state such as New York, with 29 electoral votes and one of the hardest hit in the country by the COVID-19 pandemic, remote voting by electors is not an option, New York Gov. Andrew Cuomo has said.
“We’re actually going to have to convene people in the Capitol in the midst of this situation. It’s not a large group, but you can’t do it virtually or we don’t believe, legally, you can do it virtually,” Cuomo said, adding: “I don’t want to give anyone an opportunity to legally challenge the actions of the electors. … They’re going to have to come assemble in the Capitol.”
Some states are restricting their gatherings to electors, with no family or other outside guests.
Alabama, Maine, and Rhode Island will livestream their respective meetings Monday for public viewing, but the electors will meet in person.
Larger states such as Florida and Pennsylvania will hold in-person meetings of electors, but the events have been scaled back with precautions such as social distancing requirements, according to one election administration expert.
5. What’s Next After Electoral College Vote?
It won’t entirely be over procedurally after Monday. The next big date will be Jan. 6, when the matter moves to Congress.
And, if the election still isn’t settled, it could spill over to the House of Representatives, where each state’s delegation would get one vote.
On Nov. 27, a reporter asked Trump: “If the Electoral College does elect President-elect Joe Biden, are you not going to leave this building?”
Trump responded: “Certainly, I will. Certainly, I will, and you know that. But I think that there will be a lot of things happening between now and the 20th of January. A lot of things. Massive fraud has been found. We’re like a Third World country.”
Trump didn’t specify whether that meant he would concede the race after the Electoral College votes, or would wait until Jan. 20, the day Biden would be inaugurated as president presuming he wins the Electoral College vote, as expected.
But what other options does Trump have?
The states have until Dec. 23 to submit their electors’ votes to Congress, which is scheduled to convene to count the votes in a joint session Jan. 6.
This event will make it official. Pence, in the vice president’s role as president of the Senate, will preside over the counting.
At this point, at least one member of the House and Senate may make an objection to certification of the Electoral College count as an attempt to prevent it.
Presuming Biden wins the count, Pence will play a role similar to that of then-Vice Presidents Dan Quayle in 1993 and Walter Mondale in 1981, by certifying the defeat of his own ticket.
Vice Presidents Al Gore in 2001, Hubert Humphrey in 1969, and Richard Nixon in 1961 were among presidential candidates who presided over the certification of their own losses.
Pence, as president of the Senate, will declare the winner of the election after the counting concludes.
6. Could Congress Decide the Results?
In 2017, numerous House Democrats objected to the results of the presidential election pitting Trump against Democrat Hillary Clinton. However, an objection requires a sponsor from both the House and the Senate, and no Senate Democrats participated.
Likewise, should any congressional Republicans want to challenge the apparent 2020 outcome, they would need support from members in both the House and Senate.
Any objection to electoral votes must be submitted in writing and signed by at least one House member and one senator.
“If objections are presented, the House and Senate withdraw to their respective chambers to consider the merits of the objection(s) under procedures set out in Federal law,” according to the National Archives and Records Administration.
In theory, an objection at this point could prevent certification of the presidential election. That’s because, under the Constitution’s 12th Amendment, if no presidential candidate wins at least 270 electoral votes then the House would decide the election, according to the National Archives.
Democrats have a House majority, but Republicans hold a majority in more state delegations. And in the House, each state—not each member—gets one vote. This would give Trump a partisan advantage and possibly one last chance to hold on to the presidency.
In this case, the District of Columbia, which has three electoral votes, would not vote because it doesn’t have voting members in the House.
Also, presuming the same stalemate occurs in the contest for vice president, the Senate would elect a vice president by majority vote. Unlike in the House, each senator would have one vote.
In U.S. history, two presidential elections ultimately were decided by the House.
In 1824, four candidates divided the Electoral College vote and no one had a majority. The House elected John Quincy Adams over Andrew Jackson.
In 1800, the House decided the election after both Thomas Jefferson and his disloyal running mate, Aaron Burr, got the same number of electoral votes, 73.
Although the Democratic-Republican Party had clearly designated Jefferson as its presidential candidate and Burr as the vice presidential candidate, Burr didn’t yield. The lame-duck Federalist-controlled House considered making mischief and making Burr the president, but backed away from this idea.
7. Is This Post-Election Dispute Unprecedented?
Election-related litigation, making the case to state legislatures, and potential activity in Congress most certainly have precedent in presidential elections.
The elections of 2000, 1876, and 1824 come to mind, but it’s not necessary to go back that far.
“Four years ago, the shoe was on the other foot when the left went into overtime to delegitimize the election and open calls to throw the Electoral College to Hillary Clinton after Election Day,” said Snead, of the Honest Elections Project. “We risk the country on both parties’ only viewing an election as legitimate if their candidate wins.”
After Trump won the 2016 election, several Democrats pushed movements to encourage Republican electors to vote for either Democratic candidate Hillary Clinton or someone other than Trump to deny him the presidency.
After that election, Rep. Jim Himes, D-Conn., said:
I do think the Electoral College should choose someone other than Donald Trump to be president. That will lead to a fascinating legal issue … but I would rather have a legal problem — a constitutional legal problem—then to find out the White House was now the Kremlin’s chief ally.
Also in 2016, Democratic elector Christine Pelosi of California, daughter of House Speaker Nancy Pelosi, led a letter signed by 53 other electors asking then-Director of National Intelligence James Clapper for a briefing on Russian interference for the full Electoral College before the electors convened in their respective states.
The Democratic electors’ letter said that the Constitution “envisions the Electoral College as a deliberative body that plays a critical role in our system of government—ensuring that the American people elect a president who is constitutionally qualified and fit to serve.”
A group calling itself the Hamilton Electors, founded by Democratic electors Bret Chiafalo of Washington state and Michael Baca of Colorado, pushed for a revolt in the Electoral College. It sought at first to unite 135 Republicans and 135 Democrats behind a compromise Republican candidate for president such as 2012 GOP nominee Mitt Romney or Ohio Gov. John Kasich.
Chiafalo and Baca eventually backed away and tried to convince 37 Republican electors to stray from Trump, bringing his total below the needed 270 electoral votes and sending the election to the House. Neither gambit worked.
The two founders of Hamilton Electors challenged state laws against faithless electors and lost in the Supreme Court earlier this year.
Harvard Law professor Lawrence Lessig and Boston lawyer R.J. Lyman founded the Electors Trust after the 2016 election to provide legal advice to electors who might stray from their state’s winner.
Another group, United For America, sponsored commercials featuring celebrities who pleaded with Republican electors to switch their votes.
Actor Martin Sheen, who played a president on the NBC series “The West Wing,” joined other Hollywood actors such as Debra Messing, Richard Schiff, and Bob Odenkirk for a political ad aimed at Republican electors.
In the ad, each actor stated, “I’m not asking you to vote for Hillary Clinton.” But they urged Republicans in the Electoral College to become an “American hero” by keeping Trump out of the White House.
On Dec. 19, 2016, a total of seven electors bolted from either Trump or Clinton, but the defections did not change the outcome.
As for other overtime elections, Republican George W. Bush and Democrat Al Gore took their 2000 fight for Florida’s electoral votes to the Supreme Court, which ruled in favor of Bush.
In 1876, during Reconstruction, the presidential election was disputed in the Southern states of South Carolina, Florida, and Louisiana, as was one of Oregon’s electoral votes.
At first it appeared that Democrat Samuel Tilden carried the three Southern states, but Republicans alleged election fraud.
To settle the matter, Congress created an Electoral Commission with five House members, five senators, and five Supreme Court justices. The panel eventually ruled 8-7 to give the electoral votes in each of the states to Republican Rutherford B. Hayes, who became president.