It’s well known that the Democrats have announced their plan to delay the counting of votes in the November presidential election as long as possible. Some think they want it to go to the US Supreme Court, where John Roberts might again abandon conservatives and stick it to Donald Trump. Remember, despite the polls, increasingly the murmurs coming from the Democrats are that they will drag the vote-counting out until 2021 and/or put the matter into the courts.
Can they do this? Is it possible? The fact is, almost no one knows.
One less-than-reliable answer comes from the less-than-reliable Atlantic, which cited the 1887 Electoral Count Act adopted in the wake of the 1876 election between Rutherford B. Hayes and Samuel Tilden. Easily, this was the closest election in American history, requiring a joint commission of Congress to evaluate contested electoral votes from Louisiana, Florida, and South Carolina—all of which apparently favored the Democrat Samuel Tilden. Each state, however, had claims of vote fraud and threats of violence against Republicans (especially the freedmen who voted Republican). South Carolina, for example, saw 101% of all eligible voters vote, auguring the famous 1960 election in Chicago where the dead voted. (It’s worth noting that the loser, Tilden, won the popular vote with a whopping 57% to Hayes’s 42%).
The Electoral Count Act requires that electors be chosen for the Electoral College no later than 41 days after the national election. In this case, that date would be December 14. A reading of the language of the act seems to say that whoever is ahead on December 14 wins, period. But what is meant by “ahead?” A US Congressman tells me that the requirement is fixed in stone: someone has to get to 270, but National Review’s Andrew McCarthy disagrees. The law itself seems to say just the opposite: “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.” What is the “whole number of Electors appointed?” Does that mean “appointed” by the states that have submitted elector slates or appointed by the de facto total number of electors available? McCarthy says that the president must have a majority of those submitted, not 270.
In the U.S. Civil War, we had exactly this situation. Remember, Lincoln defined the war as a “rebellion,” meaning the Southern states never left the Union. But in practical terms, they had. So what happened with their electors in 1864? There were none submitted. Yet the election went forward with Lincoln winning because he won the majority of the electors submitted.
The December 14 deadline appears fixed as well. In Bush v. Gore the deadline of (then) December 12 was upheld by a 5-4 vote (all the conservatives). One of the dissenters, Justice Steven Breyer, wanted to remand the case to Florida Supreme Courts so that it would establish uniform standards for defining a legal vote—but did not explain what the impact of departing from the December 12 deadline would be. In other words, while a new court would be free to overturn the December 14 deadline, it is not clear that it would have the votes to do so even without the chaos associated with a new justice being named to replace Ruth Ginsburg, which I will take up separately.
The Court reiterated that the December date was a “safe harbor’ deadline, however one clause in Bush v. Gore has given hope that a new Supreme Court would not treat the decision as precedent: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”
Using the example that the Atlantic chose, Pennsylvania, it is possible that the presidential election could come down to Pennsylvania and that its votes can’t be counted by Dec. 14. Does the state just lose its votes? Some scholars say yes. National Review’s Andrew McCarthy argued “the process is controlled by Congress under longstanding statutory law (found in Chapter 1 of Title 3, U.S. Code).
In a nutshell, all state disputes, if any, over election results must be resolved by December 8.” Let’s call that the certification date. That is, a state is required to certify its slate of electors, which will determine who won the state, by December 8. Then, on December 14 the electors meet in their states and cast their votes. Note: nowhere is the state’s governor involved in this. While a Secretary of State has to provide the certification on December 8, the governor has no role in the election process. For example, 3 U.S. Code § 2. “Failure to Make Choice on Prescribed Day,” says “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.” (By the way, Pennsylvania, Michigan, and Wisconsin all have Republican legislatures). Again, the governor is irrelevant. However, the chief executive of the state is required to transmit the results to the U.S. Archivist. What happens if no certificates of electors are transmitted? This is the “monkey in the wrench” as John McClain said in Die Hard.
Other then a fine for the person appointed by the state to deliver the certificate of electors’ votes to the President of the Senate who fails to deliver such a slate ($1,000) there is no state penalty for failure to participate in the election. (In 3 U.S. Code § 12., 13, 14)
Indeed, this is the biggest problem in the new US Code relating to the elections, as nothing is said about what happens to a state that fails to deliver its electors. In 3 US Code § 12 and 13, when no certified vote from any state has been received by the Senate or the archivist, they can “request” the secretary of state of the state in question to send up the certificate “lodged with him by the electors of such state.” Wait! What if there are no electors because the votes are “still being counted?” The Code doesn’t specify what comes next, although oddly it allows a district judge “in whose custody one certificate of votes from that state has been lodged” to transmit the votes. Again, however, no one ever asked the question: “What if a state does not want its votes counted?”
Electoral votes that are certified in the state are then transmitted to Congress, a process that is supposed to be completed by December 23. On January 6 at 1 p.m., both houses of Congress convene to count the votes. If no president has been chosen by that time, the House of Representatives is to choose from between the top two elector recipients. Right here the doomsayers scream “See! I knew Pelosi would steal it!” Well, no. The House is to vote—not by member (i.e., 435)—but by delegation. Republicans in the current House control 26, Democrats 23, and one is split. This then would elect Donald Trump as President. (The Senate then decides the vice president, and here Pence would be the selection). “Wait! What if it is the next House?”
There is nothing whatsoever to suggest that a single delegation could flip to the Democrats, let alone two and quite the opposite likelihood that the Republicans will expand their seats in the House—though I don’t know the delegations well enough to determine if another could flip to the GOP.
So what’s the verdict?
- It appears a majority of whichever electors are certified on December 14 is the winner.
- If states hold out, for any reason, they can be pressured to conform, but there is no penalty under law. Apparently, however, they would just lose their electoral votes. (Even the most goofball radical Democrat governor would think twice about ceding his state’s place in a presidential election—there is too much precedent set there.) And, remember, legislatures have the final call on all matters related to the electors. The state legislatures can simply say “Time’s up” and force the Secretary of State to certify, probably even over the opposition of a governor. Of course, each of these steps likely would go to court.
- The House would vote for Trump anyway.
- Finally, any court tinkering with any of this would surely know that the only solution would be a full-blown re-writing of all U.S. election law. Just as the court did in Bush v. Gore, they will quickly conclude this is way beyond the abilities of any—and probably all—the courts in the nation.
In short, if Trump wins election night, he will likely win on December 14.
Larry Schweikart is the co-author with Michael Allen of the New York Times #1 bestseller A Patriot’s History of the United States, author of Reagan: the American President, and founder of the Wild World of History, a history curriculum website for homeschoolers and other educators with a US and World history curriculum that includes teacher guides, student workbooks, tests, images/graphs, and a video lesson accompanying every written lesson (www.wildworldofhistory.com).