This article was conceived well prior to its publication date of October 7, 2020. It has been made available to political leaders, but was held back from general distribution in deference to a concern that it might discourage the vote or give a patina of legitimacy to the disruptive tactics discussed.
Regrettably, the conduct of the outgoing president and his campaign legal team in the post-election period give special relevance to the matters discussed. May its words help Keep Our Republic.

Politics ought to be adjusted, not to human reasonings but to human nature, of which reason is but a part, and by no means the greatest part. – Edmund Burke

There are now many well documented threats to a free and fair election this year. Prominent among them are the danger that a seasonal spike of COVID-19 will coincide with the traditional flu cycle in October, overwhelming medical response capacity and adversely impacting in-person voting on November 3rd; the risk that deliberate changes to the postal service (currently ordered reversed by a federal court) will result in a tide of “too late to be counted” mail-in ballots; threats of cyber interruption to voter registration, voter validation, and ballot counts; and, most threatening of all, scenarios of presidential abuse of emergency and other executive powers to disrupt the vote or the count.

Commentators have spent considerable time understanding these threats, but we must also understand a potential process for recourse if the election is contested in particular ways. What follows is an analysis of some potential pathways. We note at the outset, however, that some of these paths may invoke questionable legal arguments (e.g., on the part of state-level Republican legislatures), and by entertaining such scenarios we do not give credence to those arguments. Instead, our goal is to show how some political actors might nevertheless try to assert these types of claims, and what recourse remains when they do.

The 12th Amendment to the Constitution, adopted in 1804, states the relevant law for the Electoral College – the process for selecting our President. Unfortunately, the wording of that amendment is confusing and, as a consequence, presents difficulties. Congress attempted to cure those difficulties in the Electoral Count Act of 1887. This one-hundred-and-thirty-three-year-old act has been roundly scorned by scholars as almost unintelligible. But that act is what will govern our process for determining who becomes President, if the result is contested in particular ways.

Let’s play out some scenarios, focusing on four swing states: Pennsylvania, North Carolina, Wisconsin, and Michigan.

The Constitution assigns the election to the individual states to be conducted “in such manner as the Legislature thereof shall direct.” The electors appointed in these four states are to be drawn under state law from those representing the candidate winning the popular vote. Each of these states has set out a process designed to complete their tallies in order to avail themselves of the Electoral Count Act’s “safe harbor” provision which contemplates that their electors will be counted by Congress if all disputes over those electors are resolved before that date—which this year is December 8. This seems straightforward enough, but there’s more than meets the eye.

Unsafe Harbor

Imagine that on election night and the following morning President Trump is leading in all four states. To illustrate the potential turmoil, consider just Pennsylvania (with 20 electoral votes) and Michigan (with 16), both of which are likely critical to either candidate’s election path this year. As the count continues in those states Trump’s lead shrinks precipitously, but he is still ahead in both states on December 8. The Electoral Count Act’s “safe harbor” provision on its face would seem to require the counting to have been concluded, electors to have met, and any state legal disputes to have been settled by that date if congressional respect for that resolution is to be ensured. Nonetheless, electors for Trump meet and cast votes for him even though the count continues while litigation (e.g., about the count, or about the electors’ meeting) ensues and persists.

Pennsylvania, North Carolina, Wisconsin, and Michigan all have Republican Legislatures, Democratic Governors, and Democratic Secretaries of State who hold their office by appointment or election.[1] In the face of a media clamor for election results and a Trump storm of allegations of election fraud, counterfeit ballots, Chinese interference via social media and the like, the Republican Legislatures in each state (fearing loss or claiming a fear of disenfranchisement) certify, on or before December 14, the electors for Trump who is still leading the vote at that time, and send off certifications to the Congress in an envelope to be opened in Joint Session on January 6. The State Legislatures are not stymied by any state court attempt to stay their actions either by acting before courts get involved or otherwise sidestepping a court’s decision challenging their actions. The Governors, however, await the completion of the count, which Biden ultimately wins. Once the count is complete, Governors then certify Biden’s electors, but on the date the vote is finally finished which occurs after December 14.

Assume, as now, the US Senate remains in Republican hands and the House remains in the hands of the Democrats come January 6. With Vice President Pence in the chair of the Joint Session as President of the Senate, he rules that in the extraordinary circumstances of the 2020 election , the “safe harbor” provisions of the Electoral Count Act apply and bind the House and Senate to accept only the electors certified by the State Legislatures of Pennsylvania and Michigan. Pence’s ruling would throw the election to Trump. On the objection to the vice president’s ruling raised by one member of the Senate and one member of the House, the Electoral Count Act calls for a division of the House and the Senate which are instructed to come back together after their deliberations of no more than two hours. Assume that the question presented to both chambers is: do they, by majority vote, agree to override the vice president’s ruling? Unless both House and Senate vote to override (which the Senate, if majority party discipline holds, will not do), the ruling will stand, and Trump will be ultimately be declared the winner of the election after all other states’ electors are counted.

One assured way to avoid this result would be for both House and Senate to agree to reject the certificate of Republican electors as not “regularly” given. This is an extremely unlikely outcome if Republicans control the Senate.

There are other grounds to object. One credible legal argument is that the vice president serves only a ministerial role in presiding and lacks authority to rule on the requirements of the Electoral Count Act. Another is that the Act itself is unconstitutional in that it purports to require the House and the Senate to accept “safe harbor” electors. Yet another argument is, of course, that the competing submissions from these states simply do not qualify for the safe harbor statutory provision. Members also might assert that the certification of electors violates state law in that the certification is based on only a partial popular vote count or that litigation in state court had not concluded. All objections would be expected to fail either a House or a Senate vote depending on how the objections are worded and how the question is presented. Objectors might hold out hope that the Supreme Court can be persuaded to intervene. However, once the election outcome is in the hands of the Congress, some authorities speculate the Court would likely refuse to get involved even though the election would be determined by the Court’s refusal.[2] Of course, legal teams on both sides will be prepared to strenuously litigate the matter. Meanwhile, the electoral clock ticks toward January 20th – the date on which President Trump’s term ends, regardless of what’s happening in Congress or in the courts.

How Governors Could Take Preemptive Action Under the Safe Harbor

As an alternative scenario to avoid this outcome, the Governors of Pennsylvania and Michigan, anticipating the move by their Republican Legislatures, could themselves certify Biden electors to the Congress on or before December 14 even though the count is incomplete. (This also assumes the Biden electors had met and voted on December 8). The Governors certifications would be done in good faith reliance that the fully counted vote will confirm Biden’s win. After all, if as a matter of political authority the Republican Legislatures can certify electors on the basis of an incomplete vote, so should the Governors be able to do so — the critical difference being that the Governors would be acting in good faith to allow all the votes to be counted. If the Governors do so, they would then have until the congressional session on the afternoon of January 6th to recertify electors under state seal backed up with a full count. The Act obligates the vice president in Joint Session to open any and all envelopes containing “all the certificates and papers purporting to be certificates of electoral votes” which “shall be opened, presented, and acted upon.” There appears no bar in the Electoral Count Act or the Constitution that would prevent elector certificates from arriving as late as the morning of January 6th in order to be considered in the Joint Session.

There is another provision in the Electoral Count Act that awards a “tie breaker” to the Governor’s certificate in the case of multiple certificates of otherwise equal standing. In this scenario the Governors are not placing their hopes on the “tie breaker” on the basis of their December 14 certificates and will send the January 6 certificate only if Biden ultimately wins the popular vote. The sole purpose of the Governors’ December 14 certificates is to block the “safe harbor” outcome and buy time to complete the vote count. With the “safe harbor” blocked, the greatest peril under the Electoral Count Act is removed. And the recertified electors based on a fully counted vote should prevail in both House and Senate.

This scenario could play out in each of the states with Republican Legislatures and Democratic Governors – Michigan, North Carolina, Wisconsin, and Pennsylvania, and perhaps in other states as a way to buy time to complete their vote count. A clear win for democracy and for the republic.

Now let’s address a situation in which we are confronted with an extreme case, one provoking a genuine constitutional crisis.

How Things Could Escalate to a Full-Blown Electoral Crisis 

Say Trump sees his votes slipping away in Michigan and Pennsylvania as the count moves into December. Let’s imagine he decides to invoke the Insurrection Act of 1807 taking advantage of an exception to the Posse Comitatus Act’s general prohibition on dispatch of the U.S. military inside the United States to perform law enforcement functions without specific authority to do so. Armed with a confirming legal opinion from the Attorney General, he explicitly states that, in addition to the Insurrection Act, he is acting under the implied authority given to him by Article II of the Constitution and other unspecified US laws. He declares a National Emergency in the first week of December before electors meet and orders the U.S. military into Michigan and Pennsylvania to quell acts of civil disobedience that erupted in Detroit and Philadelphia after Trump claimed reelection on the basis of election night and next day returns. Trump also directs the FBI (with the assistance of other federal actors as necessary) to seize and hold for investigation all counted and uncounted ballots in Michigan and Pennsylvania which he alleges are counterfeit and constitute a fraud on our citizens’ most fundamental civil right, the right to choose by fair and free election those who represent them.

The objective and foreseeable consequence of such extreme actions is that no electors from either state can be certified and without them neither candidate can claim a majority of electors. Now the 12th Amendment sets the framework as Democrats claim was Trump’s purpose in stopping the vote count.

Two possibilities present themselves. The 12th Amendment speaks of a majority of the “electors appointed.” This can be interpreted to mean a majority of all electors in the Electoral College thus awarding the election only to the candidate who has 270 or more electors. Under this interpretation, neither Trump nor Biden could marshal 270 electoral votes to win. Or “electors appointed” could mean a majority of only those electors agreed to have been appointed when all state electors are counted at the end of the state count from states A to W. This is the more logical of the interpretations, although we are in a forum where politics not logic will prevail (though litigation might well shift the forum to the judiciary, where legal reasoning rather than political power at least should carry the day). With Pennsylvania and Michigan excluded from the count, such a reading would reduce by Michigan’s and Pennsylvania’s absent 36 electoral votes the number of electors needed to make up a majority. Potentially this could throw the election to Trump – even though he may have lost the popular nationwide count by many millions and failed to get even close to 270 electoral votes.

More likely, the House and Senate would not agree and refuse to accept either interpretation of “electors appointed.” They would certainly refuse to acknowledge any ruling the vice president might attempt to make on the matter. Unlike the Electoral Count Act, the 12th Amendment does not include a method of for resolving objections. Majority rule in each chamber will prevail on any interpretive question. They must agree, and they may not if Republicans remain in control of the Senate.

At this stage of events, the 12th Amendment appears to provide a solution. If no candidate has a majority of electors appointed, the question would be sent to the House which is directed to “immediately” select the president from the persons with the three highest total electoral votes. As in the case of the disputed Tilden-Hayes election of 1876, the instruction to act “immediately” has never been taken literally and is almost surely unenforceable.

The House is directed to vote by state with each state having one vote, a quorum having been established of “a member or members of two thirds of the states.” In today’s House, 26 state delegations are Republican and, when voting by state, it is the state delegations that decide by majority vote how the state’s vote is to be cast. States with Republican majorities would be expected to vote for the Republican candidate on the list. If the next House looks like the current House, Trump likely wins. But not necessarily – Trump is playing hardball to stay in power– so might Speaker Pelosi in order to protect the will of the American people.

Recourse to Parliamentary Quorum: How the Speaker Could Play Hardball Too

On January 3rd, Pelosi might convene an early caucus of the elected Democrats to discuss her plans once elected Speaker. When she takes the chair after her election and all members are sworn in, it will be her intention to recognize the Majority Leader to offer a resolution to create a select committee of her making to consider and report back to the new House for its approval a procedural rule to govern any proceeding arising under the 12th Amendment. She notes that Article 1 of the Constitution explicitly permits either House of the Congress “to determine the rules of its proceedings” such as how to count the quorum she would assert. The special procedural rule of the House may be put forward at any time at the Speaker’s discretion. Under its terms, each state delegation shall, by majority vote, appoint the member or members of the state delegation to be present in the House chamber for the purpose of establishing a quorum.[3] As members will readily recognize, lacking a majority in two-thirds of the state delegations, Republicans would thus not be able to establish a quorum made up of entirely Republican Representatives. With the Speaker presiding over (but abstaining from any vote taken on) any matter arising under the 12th Amendment and, notwithstanding any rule of the House or precedent to the contrary, the special rule would allow the Majority or Minority Leader or their designees to raise an objection at any time, and upon recognition, call for the yeas and nays on the absence of a quorum.[4]

In a parallel action the Senate minority leader would announce that under the 12th Amendment it is his intention to deny the Senate a quorum, which requires two-thirds of the members of the whole Senate, thereby blocking a vote on a new vice president. There is no ambiguity of text or purpose in the 12th Amendment requirement for the Senate quorum to consist of two thirds of the whole number of members of the Senate.[5]

The Speaker also announces that she intends to insist such procedural rule shall remain in effect though January 20, 2021 and beyond until all ballots seized under the president’s order from the states of Michigan and Pennsylvania shall be returned to those states, a full and lawful count conducted, and electors are certified back to the Congress by the Governors of those States. That is her insistence, she says, no matter how that vote turns out. Unless the ballots are returned and counted, the Speaker announces her intention to invoke the 20th Amendment on January 20 when by law Trump’s (and Pence’s) term of office ends. Pursuant to the Presidential Succession Act of 1947, she would then step down from her Speakership, resign from the House, and serve as acting president until the presidency is properly resolved by finishing the counts in Michigan and Pennsylvania – or “is otherwise decided.”

Unconventional threats to a free and fair election may require unconventional but lawful and legitimate tactics to preserve the constitutional order.[6] Envisioning these scenarios should do nothing to normalize them. Preparedness for such measures strictly as a last recourse on the part of governors and the Speaker would be the prudent course to take.

 

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[1] We note that the Michigan legislature typically remains in session until adjournment sine die in mid-December. The state legislatures of Pennsylvania and Wisconsin may be called into special session by a simple majority vote of both houses. The North Carolina legislature requires a three-fifths majority in both houses to convene a special session.

[2] For example, in the context of the disputed election of 1876, “as Senator John Sherman, a leading Republican lawmaker and statesman of the day, opined, ‘[T]here is a feeling in this country that we ought not to mingle our great judicial tribunal with political questions.’” Quoted in Nathan L. Colvin and Edward B. Foley, The Twelfth Amendment: A Constitutional Ticking Time Bomb,” University of Miami Law Review (2010) Vol. 64, p. 526.

[3] The Speaker might anticipate a challenge to the special rule on constitutional grounds and provide in the rule for a separate vote on that matter, as was usual House practice in previous Congresses. And she might also explain more fully that, in addition to her reliance on the Constitution’s express grant to the House to determine its own procedural rules, she is relying on the power to give procedural effect to language in the Constitution in the spirit of the Necessary and Proper Clause of Article 1 Section 8. Such is the case with the 12th^th Amendment’s requirement that a quorum of the House be made up of “one or more members of two thirds of the States.” This language was imported into the Constitution when there were but 13 states and later 17 states in 1804 when the Amendment was ratified. In those days, the quorum language may have had real import in getting members to show up for the Joint Session, which was no easy matter given their travel complications. But today, with 435 members to choose from 50 states and air travel and Zoom proceedings, the language of 1804 has become a lifeless procedural requirement which theoretically 34 members of one party (only 12.5% of the House) could readily satisfy. Under the special procedural rule, just as state delegations must act by majority vote to determine how the state should vote, state delegations would designate by majority vote one or more members to represent the state for quorum purposes, thus giving procedural substance to the language of the 12th Amendment. The Speaker would again make clear she is not relying on incidental but rather express Article 1 powers.

[4] While we believe the quorum count procedural rule is a sound and virtuous solution, we observe that there may be other precedentially supported or constitutionally explicit means available. For example, the Speaker with a disciplined majority in hand, may put the House in serial adjournment three days at a time as the Constitution provides.

[5] It is now settled practice that when Constitutional duties are assigned to a single House, such as the Senate’s treaty ratification and confirmation duties, how the Senate goes about those duties is procedurally up to the Senate, provided it does not disturb clear and unambiguous requirements such as the requirement for a super-majority of two thirds for treaty ratification. The House of Representatives should have similar latitude to give meaning to language in the 12th Amendment to protect the people’s right to vote.

[6] Senator Marco Rubio (R-FL) has introduced bill S.4571 to move the safe harbor deadline to January 1, 2021 and the Electoral College meeting to January 2, 2021. The proposal would allow ample time for full canvassing of ballots and definitive certification. Regrettably, there is no chance that it will be enacted.