The electoral college is a mess of arcane rules and disproportional representation but the law for counting electoral votes is even worse.
I’m hoping someone can prove me wrong here but the recent pledge by some Republicans to reject votes from swing states that went to Joe Biden caused me to revisit the rule known as “safe harbor” and what I found was not reassuring at all. Safe harbor is discussed in US Code Title 3 Section 5, but when US Code Title 3 Section 15 discusses the counting of electoral votes on January 6th, it refers to US Code Title 3 Section 6 when discussing how both houses can vote to reject a slate of electors. It only refers to Section 5 when discussing the case where more than one slate of electors has been appointed for a state, which is not the case now and not likely to be the case in future elections.
As it says, both houses have to agree, and Dems control the House so this is not a concern for 2020, but I am raising the issue now to show how much damage Republicans can do with both chambers.
3 U.S. Code § 15: 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.
So what is section 6? It simply describes the procedure for the governor of each state to provide a certificate of ascertainment to the National Archives after the certification of the vote in each state. There are no deadlines, so it is actually less strict for the states than the safe harbor requirements.
In other words, section 5 or “safe harbor” is not relevant to the rejection of a state’s slate of electors. Instead, the key phrase Republicans will focus on is the phrase “lawfully certified” which no doubt is why they keep saying “legal votes”, and why the Texas lawsuit claimed states did not follow the law.
Yahoo: Texas GOP Chair Allen West argues states that follow election law ‘need to come together and protect themselves against the states that do not', following the U.S. Supreme Court rejecting the state’s lawsuit over the 2020 presidential election.
They will argue in the House and Senate the certifications were not lawful and the electors should be rejected, reducing the count for Biden from 306 to 227, versus 232 for Trump, if all six swing states were thrown out. They do not have the majority in the House to actually do this, but they can try. It appears they might not have thought this all through, since they have not discussed throwing out all six slates of electors yet, and in fact Arizona joined in the lawsuit arguing other states acted illegally. Their efforts this year are doomed to failure, but their efforts are worth examining to prepare for next time, when a Democratic victor in the electoral college could face a Republican Congress.
Axios: Brooks told the Times he plans on challenging the electors in Arizona, Pennsylvania, Nevada, Georgia, and Wisconsin.
- In order for an objection to get a debate, he will need at least one senator to join him. It's not clear so far that any senators will object.
- If an objection is filed, each Chamber would have to debate for 2 hours. For electors to be tossed, the Democratic-controlled House and the Republican-controlled Senate would have to agree.
- Several Senate Republicans, like Mitt Romney and Susan Collins, have said they will not vote to overturn the results of the election.
The Congressional Research Service argues there are only two reasons for rejection.
CRS: The general grounds for an objection to the counting of an electoral vote or votes would appear from the federal statute and from historical sources to be that such vote was not “regularly given” by an elector, and/or that the elector was not “lawfully certified” according to state statutory procedures. The statutory provision first provides in the negative that “no electoral vote ... regularly given by electors whose appointment has been lawfully certified ... from which but one return has been received shall be rejected” (3 U.S.C. §15). The provision then reiterates for clarity that both houses concurrently may reject a vote when not “so regularly given” by electors “so certified” (3 U.S.C. §15). It should be noted that the word lawfully was expressly inserted by the House in the Senate legislation (S.9, 49th Congress) before the word certified. Such addition arguably provides an indication that Congress thought it might, as grounds for an objection, question and look into the lawfulness of the certification under state law.
The objection that votes were not “regularly given” may, in practice, subsume the objection that the elector was not “lawfully certified,” because a vote given by one not “lawfully certified” may arguably be other than “regularly given.” Nevertheless, the two objections are not necessarily the same. In the case of the “faithless elector” in 1969, described above, the elector was apparently “lawfully certified” by the state, but the objection raised was that the vote was not “regularly given” by such elector. In the above-described 2005 case, the objection was also based on the grounds that the electoral votes “were not, under all of the known circumstances, regularly given.”
What does the Constitution say about all this? Nothing. There is no discussion of rejecting electors.
Article 2 Clause 3 of the US Constitution: 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 shall be the President, if such Number be a majority of the whole Number of Electors appointed: and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President;
If Congress rejects electors, claiming they were not lawfully certified, the only recourse would be to immediately ask the Supreme Court for relief, but they might be hesitant to take the case and there could be serious questions about who would have legal standing to actually file such a lawsuit at all.
Again, this is not something to worry about for this year, but it could be a real problem in the future.
CBS News: Justin Levitt, a constitutional law expert and professor at Loyola Law School, said it's "simply not conceivable" that either chamber would reject any of the electoral votes "because there is no reason to reject any of the votes." So far, there are no GOP senators who have said they would join Brooks' challenge.
Votes have been recounted and certified in several battleground states that President Trump continues to contest. Georgia has now reconfirmed Biden's victory for the third time, and, after completing a state canvass and determination of the local recounts, the Wisconsin Election Commission confirmed his win in the state last week.
Levitt called any objections on January 6 simply a chance for "political theater." Jason Harrow, executive director and chief counsel at non-profit Equal Citizens, said there are no grounds for an objection because all 50 states have certified their election results, and any objection "will only serve to delay." Hawaii certified its election results on Tuesday, The Associated Press reports, making the 50th state the last to do so.
"There could be shenanigans on January 6, but I think that they're theater," Harrow said, echoing Levitt.
Speaking of which, Ron Johnson has scheduled a hearing in the Senate with Ken Starr as a witness.
CNN: Sen. Ron Johnson, the chairman of the Homeland Security and Governmental Affairs Committee, has invited former independent counsel Ken Starr and attorneys in key battleground states to testify at a controversial hearing next week where he plans to probe the 2020 election that President-elect Joe Biden won.
The hearing, which has prompted sharp criticism from senators in both parties over concerns that Johnson is peddling in debunked conspiracy theories, is moving ahead despite calls from Democrats that he scrap it.
But Johnson, a Wisconsin Republican who has not yet said if he'll run for reelection in 2022, says his hearing is geared at "trying to restore confidence in the system" and says it is he who is "trying to debunk" questions about "suspicious activities" that occurred in the elections. He also says the hearings will help him decide whether to join House Republicans to challenge the electoral results on the floor in January, as he's met with one of those conservatives -- Ohio Rep. Jim Jordan -- to help prepare for next week's hearing.
"If there's an irregularity that can be explained, fine, set that aside because we have to restore confidence in our election system," Johnson told CNN Friday. "And we need to change the laws or enforce laws so this doesn't happen in the future."
