S6: Special Election Episode

This is Larry Lessig. This is a special episode of the podcast Another Way An Election Special. Just before the election on Sunday, four of us sat down to talk through what might happen between election day and January 6th. That conversation was premised upon it being a close election. Election. Obviously, this is not a close election. And so none of the concerns that we're going to talk through in this conversation will actually manifest in the period between election day 2024 and January 6, 2025. And thankfully so, because while I was deeply, deeply hopeful that Election Day would be not close for Kamala Harris, I confess to a close friend that my second preference was that it would be not close for Donald Trump. Because as much as I wished Kamala Harris would be the 47th President, I am deeply concerned, as many of us are, that our fragile election system could not bear just now another contested presidential election. Not just because the winner of that contest would ultimately be questioned whether he or she was in fact the winner, but also because those who didn't prevail would continue to believe or be driven to believe that our system had failed them. And so fragile, I think, is our democracy now that we need to avoid those stresses just now. So the four of us decided to talk through this in a context behind the veil of ignorance, where none of us would know what the result actually would be. Four of us. So me, my co author of the book how to Steal a Presidential Election, Matt Seligman, who is a fellow at the Constitutional Law center at Stanford Law School and a practicing election law lawyer and two of the most prominent election law scholars and lawyers in the United States just now. First, Derek Mueller, who's a professor at Notre Dame, and second, Ned Foley, who is a constitutional election law expert, extremely prolific, especially about the original understanding of how our presidential system was crafted. And his most recent book, Ballot Battles. It tells the story of the many struggles that have challenged the system we have for selecting our president and other elections. So the four of us talk through the procedures in the three steps between election day and January 6th. The first step, the day of the election when electors will be appointed based on who won the election in that state. The second step, electors Day, when the electors shall meet and cast their ballot. And the third step, January 6th, where those ballots are ultimately counted by Congress. So you can't see our conversation because this is an audio podcast, obviously, but let me introduce the speakers by describing them in order of how you will first hear them speak. And then you got to remember what they sound like going forward. So the first person you'll hear speaking after me is Derek Muller, the professor at Notre Dame. After Derek, Ned Foley, the professor at Ohio State, will speak. And then third, Matt Seligman, the fellow of the Constitutional Law center at Stanford, will speak. You'll hear us go back and forth, testing out different theories, raising questions about the process and trying to describe what we think the law is or clearly is or hopefully is in the context of a contested election. But again, to be clear, none of us think this is or should be a contested election. All of us believe this election is clear. However much we might dislike the results or possibly like the result. We don't identify that in this podcast. So if anything, this is a letter to the future, to those who in the future would like to strengthen even more the process for selecting our president, or see a reason to change it fundamentally. Either way, I hope you enjoy the conversation.

Okay, Ned and Derek and Matt, thank you so much for participating in this conversation. As anybody who is focused on this election recognizes, the President gets elected if by the Electoral College, only if 270 electors support the President and Vice President. If that doesn't happen, then conceivably it could be in the House of Representatives for the President. Through what we call a contingent election, those electors are selected in a process that the states get to determine. The Constitution gives the states the power to determine the manner in which electors are appointed. It gives Congress the power to say when those electors must be appointed. And since the middle part of the 19th century, basically all states have appointed their electors through elections where we the people get to vote. But importantly, states have played around with exactly how they select or allocate the electors. So right now, all but two states allocate their electors in a winner take all process, meaning the winner of the the popular vote. And that just means the plurality winner of the popular vote gets all of the electors from that state. The two states that are exceptions are Maine and Nebraska, where each of the congressional districts gets to pick an elector based on who wins the congressional district. And then the two states, senator electors, two electors from each state, get allocated to the winner of the popular vote for that state. So appointment is the first step. The second step will then be when the electors cast their ballots, which we'll call Electors Day. And the third step will be the most famous day of all, given the last election, January 6th. Then we're going to work through each of these steps and try to identify where we think there might be issues and where the four of us are at least an agreement about what the law and the Constitution requires. So let's start with the appointment of electors. I want to start by talking about something that's no longer part of the law for determining who the electors will be, just to get it out of the way. But it's an interesting complication. The old law, what we call the Electoral Count act, which was passed in 1887, had included a provision that had actually been passed before that, Section 2, which had given states power if an election failed to make a choice. We don't have to go into details of why they had that language. But the important point is the Electoral Count Reform act, which, surprising many of us, was passed in 2022, abolished section 2 and instead now adds to the definition of an election that an election is the day Congress sets unless the language of the statute is if the state modifies the period of voting as necessitated by a force majeure, events that are extraordinary and catastrophic, as provided under the laws of the state enacted prior to such day, to the election day, then the period of election can be extended. So I just want to be clear, at least among us, do we think any state has actually taken advantage of this provision? Is there any state that's actually created a force majeure procedure that might allow them to extend the term, the time for an election, if in fact a force majeure event has occurred?

Well, I think so. Professor Michael Morley at Florida State has written a lot about election emergencies. So has Jerry Goldfeder, who's at Fordham Law, about existing state laws that deal with the extension of those events. I can say here in Indiana, if you are unable, if there's an extraordinary event that keeps the poll place from opening, the county can go to court and seek an extension of the hours of polling that maxes the period of time the polls were unable to be open. So you can imagine an eight hour delay to the polling place opening. In Indiana, the polls are supposed to close by 6:00pm p.m. but you get a court order that extends the polling place hours open until 2am and that would technically spill over to the next day of the election. So it wouldn't be on Tuesday, it would spill over until Wednesday. But under the existing law, that would be, I think, the kind of event that we would identify as something that's fixed under the statute. So I don't know that states have been adding procedures as much as this gives them authorization to use existing procedures to extend the window of voting potentially beyond 1159 on November 5th.

Ned, do you have a different view of that?

No, that's my understanding as well. I'm not aware of many states passing new laws to try to take advantage of the new provision in the ecra. There may be one state that's not a swing state that is done that, but which state it is, if it exists, escape my memory. But I think Derek is right that states potentially could rely on prior enacted laws that fit the description of the kind of law that has to exist before election day this year in order to extend the time of voting beyond midnight on Tuesday.

Matt, I think that's right. And one important dimension of this is that the reason why these laws were already on the book is because they apply to non president elections where this timing restriction was not imposed by federal law. And so the function of what's going on here is that there are these pre existing, pre existing statutory regimes in a number of states that permitted the extension of the period of voting for local, state and potentially even congressional elections, although I'm not sure about that. And now they'll apply to presidential elections as well.

Just add one more point. Picking up on what Matt said. There's a long history of cases, usually not involving presidential elections, but sometimes where because of the kind of emergency that Derek talked about polling places opening late where there's litigation to extend the polling hours. In fact, there's a provision in the Help America Vote act that says if there are any ballots cast pursuant to that kind of court order or administrative extension of what was previously set by statute, those have to be cast as provisional ballots. But there's another category of voters that we've seen in the past and conceivably could see again, which is voters who are standing in line at the time the polls close in whatever the hour is in a given state, it could be 8:00pm, could be 7:00pm and many states, perhaps all states, have laws that say if you're a voter standing in line when the polls close, you count as voting by that deadline and you don't need a court order to get the benefit of voting when your turn in line comes up. And I think that's important to distinguish that category of voters from any voter who votes not on election day, but on Wednesday or Thursday or whatever pursuant to an extension of the polling hours that's very different from voting because you were standing in line.

Now one interesting note about the very important category of votes and voters that Ned points out. There was a decision in the 5th Circuit just days ago saying that the Electoral Count Reform Act's election day provision saying that it unless this force majeure exception applies, then electors have to be appointed on election day. The 5th Circuit held that mail ballots that are mailed before election day or on election day, but received after those ballots cannot be counted because that would violate the election day provision. Now this raises an interesting question about exactly the violence voters that Ned is talking about here. If you apply the fifth Circuit's logic, which, to be clear, I think was quite wrong, but if you apply the fifth Circuit's logic to those voters who are standing in line at 12:01am on Wednesday and there's no force majeure event, but just the polls were really busy, or let's assume that the polls being really busy doesn't count as a force majeure event, then I think there's an open question about whether those votes are going to be counted, and I imagine there'll be litigation about it.

Okay, I want to ask about one particular example of Section 2 statutory authorization. So North Carolina famously had a provision that explicitly pointed to 3 USC 2, and it, I think, mistakenly gave the legislature or the governor the power to select the electors if the election was not determined either six days before the electors were to vote or one day before the electors were to vote. This was never invoked, obviously. But what's interesting is the state modified that law in one small way after the 2022 law was passed, but keeps in the statute the statement that pursuant to the power of 3 USC 2 comma and then they go and enumerate all the power that they have to be able to appoint slates of electors in different ways. I take it North Carolina should be deemed to have failed to actually act under the statutory provisions of the ecra, because, in fact, the ECRA doesn't give them the power to give the legislature or the governor the ability to pick electors. It only gives the state the power to extend the term of an election. Are we all agreed about that?

Yes, absolutely. And in particular, the time of choosing is on November 5th. The notion that three USC two used to have that ability to choose at a later time, that later time has been taken away. So the legislature has no authority to appoint on December 11 or whenever else it might want to do so.

Okay, then, one final bit about this. I'm sure many remember the hypothetical in succession, the penultimate episode in season four, where in Wisconsin the polling place in Milwaukee burns down and so all the Milwaukee ballots are lost and that throws the election to the Republican. So the analysis we've given so far is we'd have to know whether there are existing emergency provisions in Wisconsin prior to election day. That might conceivably give the state the authority to extend the election in Milwaukee in that circumstance. But the only thing they can do is the extend the time for Milwaukee citizens to vote. They couldn't do anything like have the legislature pick the electors or the governor pick the electors.

Right. And I think, you know, as fortunately, I mean, I hope that that succession scenario remains fictional. But I do think it does raise an interpretive problem under the new ecra, because what the ECRA permits is extending the time of voting itself beyond Tuesday pursuant to a force majeure event. But if voting is all over and concluded and then a force majeure event takes place after that, that destroys ballots. I don't think even if there had been a state statute that authorized the reopening of voting, you know, it wouldn't fit within the plain meaning of the text of the new ecra. Now, there may be ways to get around that plain meaning analysis, but I think reopening the polls to let people vote again because their ballots burned down in a warehouse is different from extending the polling hours because the polls didn't open until 8 hours late in the scenario that Derek first identified.

Yeah, that's a great point. Let's hope it doesn't happen. Okay, but we flagged this issue. Let's. Let's move on to the second set of issues. So, obviously, once the votes are cast, the state engages in a process to count the votes, and then the results are supposed to be certified. There's lots of talk right now about county boards or the authority necessary to certify the delaying certification or refusing to certify. How do you understand the consequence of such a decision? And recognizing, obviously there's lots that's gonna vary based on state law. But I just wonder if there's a general way to think about that strategy here. Why don't we start with Derek?

Yeah, I think of it as a failed strategy, but that's what I've been writing about for many months now. So states have their own state. State deadlines. There's a county or local deadline in some places, and then a statewide deadline to certify the election. Those are between mid November and early December. So even under existing state law, if you blast past that deadline, which no one has done, by the way, to my knowledge, in the last 150 years, and maybe even longer than that, then you go to court. You go to a state court and you say, this person's missed the deadline, make them certify the election in new Mexico. When this happened a couple of years ago, the state Supreme Court issued an order within 24 hours, moved very quickly. So that's the state deadline. Then you've got a federal deadline saying the executive needs to certify by December 11th. It's kind of the last stop for the executive action there. And again, in theory, they've already done this under state law. Maybe there's a recount, maybe there's a contest, something else that's happening after that first certification. But the point is, you've got some results, and you have this hard deadline now of certification by December 11th. And even if you miss that, the Electoral Count Reform act anticipates that there might be subsequent federal or state judicial relief before when the electors meet on December 17, and Congress is supposed to treat as conclusive those court judgments that have modified the certification or have ordered its certification or whatever it might be. And even when an executive official refuses to certify, courts routinely can order somebody else simply to perform the act if that person refuses to do so. I understand a lot of concerns about people delaying. In the last four years, while a number of people have voted against certification, most of the time it's protest votes. They're on the losing side anyway. Many times they refuse to certify. Then after a couple of days, they get religion and they turn around and certify. Or in a few instances where they refuse to certify, court orders them to do so and they certify in a timely fashion. And I anticipate we would see those steps, or in the extreme circumstances, a court ordering someone else to certify on their behalf, if it ever came to that.

Ned, do you have more on that?

My analysis is essentially the same as Derek's. The only thing I guess I'd add is that as I read the relevant provisions of the new ECRA, all of that court litigation has to conclude by December 16, the day before the electors meet on the 17th. The hard deadline, as I see it under the statute, is December 16th. As Derek says, there needs to be an initial certification by the executive on December 12. But if that doesn't happen, courts can act to order the certification, or if there's litigation contesting that certification that's already in play earlier than the 11th, the litigation can continue all the way up to the 16th. And so the 16th is the final deadline. And I guess just if it's useful to say if there is an initial certification by, let's say, the governor, whether it's on the 11th or before the 11th, that is going to be the certification that counts for purposes of the electors meeting on Electors Day. And then what's conclusive on Congress unless it gets overturned. So the clock is ticking for whichever party wants to overturn that initial certification. It's not like the state's whole electoral votes get voided. That certification, state stands unless it gets replaced by something else.

Matt, do you want to add something to that?

I agree with what Derek and Ned said. I do think there are some risks of delay, but I don't think that those risks lie in where a lot of the public attention has been on recalcitrant county boards of elections just refusing to certify. I agree with both Derek and Ned that that's going to be a failed strategy. The sort of concern that I have is not just recalcitrants, but if there's a practical impediment to the final resolution of whatever the dispute about the election is. And we've seen this before, and we see how it plays out in different ways with the deadlines. If we Compare Hawaii in 1960 and Florida in 2020.

Okay, so we're going to bracket that conversation for a second Hawaii conversation.

But I do think it's important without getting into Hawaii in 1960, to Matt's point about Florida 2000 is a correct and an important one. And I also draw upon my research into the US Senate race in Minnesota in 2008. This was Al Franken winning ultimately against Norm Coleman, the incumbent, and that was in 2008. So it was a presidential year, even though that wasn't a presidential election. And on the date that the electors met in Minnesota to vote for Senator Obama to become president, the recount was still pending in Minnesota. Minnesota actually had a law that negated. There had been a certification, a preliminary certification of Coleman's victory, I think within two weeks of election day under Minnesota law. But the way Minnesota recount law existed at the time, once the automatic recount was triggered by the margin being as close as it was, it suspended that certification. So there was no pending certification of Minnesota Senate race on the date the electors met. Now, if it had been a presidential election at stake, I'd like to think that the Minnesota administrative process for doing recounts would have spent fed up. And so it's not exactly apples to apples. But we all know the truth about Florida 2000 was the clock ran out under the old ECRA system, which is different than the new one. But the Supreme Court halted any further recounting based on what was then called the safe harbor deadline on the theory that Florida wanted to take advantage of it, which meant that the pending certification was the last official word and couldn't be superseded by any further recounting. While I hope no state gets into that situation, I agree with Matt that the more realistic concern here is not the absence of a certification by the relevant deadlines, but the incompletion or the failure to complete all relevant recounting and litigation that might be pending by. By the relevant date.

Yeah. So let's take the simple hypothetical that you're coming up on the deadline. Let's imagine some court rules. A bunch of ballots are illegal, and so then that determines who the winner is as of the deadline for certification. So the first question is, does the governor certify or the executive certify on the basis of the results as they exist, then knowing that there's an ongoing fight about whether a certain class of ballots should be counted or not? Ned.

I mean, I think it depends largely on state law, and state law is going to dictate when the governor gets to certify or if there's going to be some kind of stay of certification pending appellate review. Right. So if you have your initial certification as a challenge and the court says, no, no, no, this other person is the real winner, the court might then order the governor to certify or stay that decision pending appeal, or give them a deadline with, you know, time to appeal sort of baked into it, saying, you have to certify by tomorrow, but you can go. And I'm not going to stay that decision, but you're welcome to appeal it, and we'll see what the appellate court does. So I think it's a nuanced matter that's going to turn on the nature of both state law and the state court order in that specific jurisdiction.

There's an interesting example of this in Arizona, where they proposed a rule that said that the governor could certify even if certain counting had not been completed, or I guess it would include recounting. And the court ruled that to violate the Constitution. And so this kind of creates this conflict. If there's some constitutional obligation to make sure you're counting everything but some deadline that's imposed by the ECRA about when certification has to happen, then potentially we have a conflict between these two.

Yeah. In the Arizona case that you referred to refer to, it was actually the secretary of state's certification of the winner of the popular vote, which is, in an arcane way, technically a different certification than the governor's certification of the appointment of the electors. As Derek said, it varies from state to state. But there has to be a completion of the counting of the popular vote, at least a preliminary completion that counts as enough of a completion for purposes of certifying the popular vote. And that popular vote certification is what then gets transferred to the governor for certifying the appointment of the electors based on the counting of the popular vote. So both steps have to happen before electors can actually vote as the state's electors. And I assume that a governor. So a governor needs to wait for that first certification to happen. And in some states, that's the state canvassing board. In some states, it's the secretary of state. Again, that's going to vary. Presumably a governor will want to comply with state law, including state deadlines, and will attempt to do so absent a court order directing otherwise. But if they haven't been given the paperwork from the secretary of state or the canvassing board, there's nothing that they can do vis a vis the appointment of the electors.

I want to draw a contrast between the first count and then subsequent actions relating to that count. Right. So in Arizona, part of this is a challenge of there might even be a first count if certain counties have failed to submit to the statewide total what the ballots are. That's a different situation than account and then trying to recount or I mean, Florida recounted all the ballots, by the way, in 2000. Like there was a count, there was a recount, and then we were actually in a third count in Florida in 2000. Right. Or we can think about Georgia in 2020. There was a count, there was administrative audit that was allowed to administratively alter the total on a statewide basis of the presidential race. And there was a recount. They recounted those ballots three times before they got to the final total. That was the ascertainment. So we, when we talk about all of the sort of numbers, I think there's a reason why I'm so confident that you're going to get to one count. At the end of the day in these disputes, we're talking about whether or not the third or fourth tabulation is the one that's sort of adequately updated in order to reflect some other way of ascertaining the totals in the state. So it's subtle, it's important. And I understand there are state reasons why we have a recount. We have contests, we have different reasons to challenge and alter those results. But in terms of getting that first countdown and getting some certification on the board, I think there's no question that's going to be met. I think the questions are what kind of challenges there will be to that initial canvas that come later and how quickly and expeditiously we can resolve them.

And to add to Derek, just because Florida 2000 is useful in this respect. So there was this initial preliminary count that was never certified. It was just a count that then triggered a machine recount that included almost all the ballots, as Derek said. But there were still some absentee ballots from overseas that weren't going to be part of the machine recount of what was done at the polling place. Under state law, the timing of the certification was going to wait for the arrival of the late arriving overseas ballots. And then there was litigation that extended that deadline. So certification didn't actually happen for several weeks and was not the date that was originally set in statute, but was the new date created by the Florida Supreme Court that then got the US Supreme Court upset about the alteration of that, of that deadline. So the litigation can really matter here as well as what the relevant texts are. But just because you have a counting of the ballots doesn't mean you have a certification of the winner of the election pursuant to account.

Yeah. So let's talk about a very particular example that Matt was alluding to before, which I think we all agree about how this example would be decided today. But it's, I think it's useful to flag it. So in 1960, in Hawaii, Nixon was originally declared the winner. The governor certified him as the winner. They noticed tabulation errors, and so the Democrats asked for a recount. The recount process in Hawaii then was relatively slow. Most states have sped this up now so this wouldn't repeat itself. But in Hawaii, it couldn't be completed until the end of the month. So they had a problem because while Congress gets to say the day that electors are appointed, it also gets to say the day where electors cast their ballot. That's electors day. And electors day was going to be before the recount could be completed. And so what the Hawaii electors did is that both sets of electors, the Nixon electors and the Kennedy electors, met and cast their ballots and both signed certificates that said, we are the duly appointed electors for the state of Hawaii. And and then when the recount was resolved, Kennedy had won, the governor issued a new certification, sent that to Washington. Nixon, as vice president, noted to Congress that he had before him the certification for him, the electoral votes for him, and he had the electoral votes for Kennedy, saying he didn't intend to create a precedent. He counted the votes for Kennedy. Now, I Think we all agree that under the Electoral Count Reform act, that same scenario would have to count the votes for Nixon because Nixon would be the winner. Originally. The certification for Nixon at the time the certification was made was legitimate. There was a recount, but the recount took too long. And so the recount was after the electors voted. And there's nothing under the Electoral Count act that allows that has anything to do with certifications after the electors voted. And more pressingly, the Electoral Count Reform act only permits the Vice President to present before the joint session certificates that have been certificates pursuant to section 5, the provision where these votes are certified. So not only is there not a way to recertify, there's also not a way to get them before Congress. And then you might say, well, what about an objection? But the objections, the basis for Objections are only 2. The first basis is that the certification was not proper under Section 5, but we've made the assumption that the certification for Nixon was proper under Section five. And the second is that the electoral votes were not regularly given. But the assumption is assuming these Kennedy electors actually voted, they would have voted on Electors Day. That's regularly given. They would have voted for Kennedy. They weren't coerced to vote for Kennedy. So that wouldn't be a sufficient objection either. So I think the conclusion is, and I take it we all agree with this, that if Hawaii repeated itself in exactly the same way, the wrong person, meaning the person who didn't actually win the popular vote, would get the electors from that state. Matt, are you agree with me on that?

I agree with you that that's what the operation of the Electoral Count Reform act says. And that reflects a design decision that Congress made in the aftermath of 2020. I think there was concern about multiple slates of electors where there really wasn't any legal basis for the Trump electors in various states. And so I think Congress was intent on preventing this type of multiple state scenario again. Now, when it did that, it tried to. If the statute is operating the way it's supposed to operate, then everything is done by the state by December 11th. And then there are a couple days of litigation. But really every election dispute is supposed to be wrapped up by 11:59 on December 16, where things break down, which is what you're talking about is if that premise that underlies the entire structure of the Electoral Count Reform act fails, that the dispute isn't resolved by 11:59 on December 16, and the statute really just doesn't have a way of dealing with that. Now, one possible question Here, you know, that's what the statute says. One possible question is, is that December 16 deadline constitutional in the context of that factual situation or does it deny due process?

Right, so let's bracket that question for a second. Let's just make sure that we're all on the same page about the operation of the statute. Ned, I take it you agree that's the way the statute works as well?

Yes, in fact, I think the statute's even clearer than perhaps we've suggested so far. I mean, the statute, I think is crystal clear that says there are deadlines for when the appointment of electors have to be made. And if those deadlines are missed, those are not who lawfully certified appointments pursuant to the statute. There is a notion of finality that states need to be on notice about in terms of wrapping up their processes. Again, it's a two part process, as we've just said, there's an initial certification that has to occur by December 11th, but there's this extra five days of leeway until the end of the 16th for wrapping up litigation. And I think the statutes, under the assumption it wouldn't characterize, first of all, it should sort of assume that, you know, it's like the old sats, put your pencils down. I mean, you know, there really shouldn't be anything taking place in the states after that point because it's just not cognizable. So we should never get to the situation that Hawaii was in that says, oops, we counted the popular vote incorrectly because you really got to stop counting, you're done. And so the ECRA thinks it's a perfectly appropriate appointment of electors pursuant to the state processes that led to an appointment based on a certification. And then everything else was irrelevant because it didn't change the already certified result. There's a strong, there's a definitive presumption that if there's been a certification, that certification stands unless overturned within the specified timeframe. And so if it's not overturned within the specified timeframe, it's completely irrelevant.

Derek, you agree with that?

Yeah, I'd agree. I think the framing here is, I think, a distinction perhaps between law and equity. And Congress used to be a lot more equitable in how it handled these disputes, and now it's moving much more toward law. And, and it might have had a lot more flexibility in the past to sort of make a judgment about the timing and all those kinds of things. And now it wants to adhere to these rigorous deadlines. I do take the slight issue on the, in terms of, I Don't think you phrased it as wrong winner, but that Kennedy should have won. But we're going to appoint for Nixon because I think again, to this sort of framing that Ned has, there wouldn't be a recount pending after December 11 is the point. And so if Nixon is the only one who's ahead, we're not going to continue that litigation and have the counterfactual. I think there are a lot of gore supporters in 2000 who said if we had the counterfactual, if the court had not stopped the county, if we'd continued counting, we could have seen Gore win and then he would have been the true winner. But we don't have that sort of counterfactual sort of moving forward. We have the results on a particular time under existing rules in place, and that's who the true winner is. And I think it's right that we would say, well, under this 1960 example, Nixon would be the winner, even though Kennedy ends up being the true winner. But we wouldn't get to determine the true winner, if you will, under the Electoral Counterform act, because that process would be stopped much earlier in its tracks, and we would take the results as we see them, or else Hawaii has to move its process much earlier to make that resolution.

And I also think, just to finish the story on Hawaii, I think it's really important to emphasize the context. Hawaii's electoral votes didn't make any difference as to who was going to win the majority of electors. So. So Kennedy was going to be declared the winner no matter what. Nixon was his opponent in the race. And this was a. You can, you know, whatever you think about Nixon as a politician, this was long before Watergate. This was, you can imagine a politician trying to be magnanimous and saying, oh, let's just count the votes for Kennedy. And in fact, he invited, and as I understand, I remember reading the transcript, he didn't just sort of act unilaterally. He. He said, can we have unanimous consent of the joint session to treat it this way without making a precedent? So it was the entire joint session willing to suspend worrying about what was required under the eca, the old eci, just for this one little moment as an example, without supposing any legal consequence.

Okay, but I want to just press a little bit on the assumption the framing you just gave Derek about we wouldn't have a true winner, because, like, so imagine it's not the recount. Imagine that some judge has ordered a bunch of ballots to be thrown out, and because of that the winner is different. And so the person who is now the loser sends electors to vote on that day so their electors show up and they vote. Now, I think it's an argument whether it's moot, right? Because if the electors don't vote, then yes, of course it's moot, because there could be no possible way to count ballots for those electors. But if they do vote, there's at least I'm sure the campaign would make the argument that under the history of the 1876 election and under Hawaii in 1960, they have the right to continue to prosecute their appeal. And let's imagine the appeal is eventually reversed. You know, now you really do have a true winner and you have an Electoral Count Reform act winner. And then I think you could either ask whether Congress is going to be equitable, you know, which I agree with you, in the old days, that's what would have happened, or you could ask Matt's question, which is whether there would be a plausible challenge to the provision. But I take the restrictions that block the timing. But I take it both Ned and Derek at least are pretty clear that that constitutional challenge should fail and we would just accept that this is the consequence of the way the rules now are.

Well, I need I want to jump in here, Larry, because if I understand the hypo that you are indicating, we've got a judicial decree prior to the date of the electors meeting December 17th that says, oops, the certification is wrong for these judicial reasons and there's a court order, let's just say the court order occurs on the 16th before midnight that says the certification is wrong. Then I think that judicial decree is what's now controlling and the governor is supposed to revisit, issue a new certification based on this last minute judicial ruling, but it's still a timely judicial ruling. So therefore, the true electors are the electors as reflected by that judicial decree. And going into the I'm agreeing with that.

I'm agreeing with that, but I'm saying so the court makes that decree.

So there's no conflict then between the true electors and the ECRA under that hypothetical.

No, the hypothetical I was giving is yes, the court makes that decree, let's say, on December 16, and based on that decree, those electors cast their ballots.

Correct.

But people are challenging the validity of that decree or they're saying that decree was wrong. So now the question is whether the campaign, that's the losing campaign here can continue to litigate that decree. And so the only way they can litigate that degree, the Only way they could possibly litigate that decree is, is if their electors cast their ballots on Electors Day. If they didn't, then there's no then it's moot. But if they did, what I'm saying is I'm sure the campaigns would argue that it's still a live controversy and you ought to resolve whether this judge throwing out these ballots made the right decision or not. And if the court later says no, that judge made the wrong decision, they shouldn't have thrown out the ballot. I think what we're agreeing on is the statute still would say that the result that the decree as of 16 December is the controlling decree and the electors picked on 16 December are the only votes that can count. Even if later on it turns out that that decree was mistaken and it should have been the other electors whose ballots should be counted.

Correct? Correct. I mean, we can contemplate the possibility that both sets of electors try to meet on December 17 because one is still upset about what the last judicial ruling was. But the statute's crystal clear, in my view, that whatever the highest judicial ruling is as of the end of the 16th is the controlling ruling. Therefore, I still push back a little bit on the notion that you would then have subsequent judicial decisions that try to undo that. But if some subsequent court on the 18th, 19th, 20th said no, that earlier judicial decision on the 16th was wrong and we want to issue an order rectifying it, that's null and void under the statute. And by the way, going back to the history of this, I guess I disagree a little bit with Derek's account that Congress has always been equitable about this. Again, I think the Hawaii example isn't Congress doing anything of dispositive nature of significance. And the only other example of this that I'm aware of is 1876, and it got decided in exactly the opposite way. It was not equitable. What happened there was that the Tilden team was on the short end of the stick as of the date the electors met, and they kept fighting. They had their electors meet without, you know, really good color of law, because they wanted to keep fighting. And they were able to reverse the counting of the popular vote, especially in Florida, until they only needed to win one more state to get over the majority of electoral vote threshold. And the decisive ruling, whether you agree with it or disagree with it, by the electoral commission that Congress created to settle the Hayes till in dispute, relied on the proposition that the Constitution requires that anything that happened in a state after the date the electors Meet be null and void. Because although Congress gets to pick the date, that date has to be uniform through throughout the entire United States. Electors must be appointed pursuant to state law by that date, whatever date Congress picks. And states can't change their appointment of electors or engage in litigation or have any other procedures that would alter which set of electors are the duly appointed electors. That was the legal theory that won the day in 1876. So. And the only thing that the ECRA does in my judgment, is kind of moves that deadline up one day earlier by making 16th the drop dead timeline for resolving things, as opposed to say the morning of the 17th or by noon on the 17th or some other time on the 17th.

Yeah. So your book, Ballot Battles, that's the name of the book, right. Which goes through the whole history of these kind of fights and is very comprehensive about this particular one. And it's disturbing to understand the history as completely as you tell it, given, given the answer that we wish the, that we were happy that the court reached or that the Congress reached. You're pointing to the opinion of Justice Bradley. Of course, the argument on the other side, though, is that of course, 11 years later, when they passed the Electoral Count act, it created a mechanism that presumed that there was going to be multiple slates of electors before Congress. And they didn't adopt as simple a rule or regime as Bradley would have. Bradley's analysis would have entailed. So that at least left open this question whether in future conflicts where you have multiple slates, Congress's determination of who should have, which slate should have won is going to matter. I mean, that's in fact the procedure that they're going to go through in the context of that conflict. So I think under Bradley's conception, you're exactly right. And the ability of the Electoral Count Reform act to move it back a day seems not problematic. But I think we could also all agree that if in fact the scenario we're talking about presented itself, there'll be a lot of really powerful lawyers on the other side asserting that these limitations are not legitimate or constitutional, that the state has an Article 2 power to do, to have its process to determine the electors. And while Congress has a power to set some deadline, this deadline is just too short. I mean, that would be their argument whether it was we prevail.

And I think it's also important to unpack a little bit more specifically what we're talking about here. I think what we're talking about here is when there's ongoing litigation that does not reach A final decision by the Supreme Court by 11:59 on December 16th. Now, why might that not happen? And there are a variety of reasons. Six days is a really short window for litigation between December 11 and the end of the December 16. But it also creates a potential bad faith manipulation opportunity. If you have a state trial court who issues an injunction for the governor to reverse her certification at 11:55pm on Dec. 16, there's no time for appellate review of that. And so the impossibility of any type of appellate review of that type of decision, just because that's the one that's lasted in time, seems to me quite problematic.

Dangerous.

Yeah, I hear you. And I think it's fair to say that Justice Bradley's theory of Article 2 and the significance of the uniform electors date around the country is debatable. There were people back in 1876 who took the opposite view. And I think the original ECA was based on the idea that there was this offer of the safe harbor deadline, that the Congress, anything done by safe harbor date was going to be accepted as conclusive. And so that was an encouragement that states wouldn't run up against the Elector Day itself. Obviously, that's now being superseded by the new ecra. If you open this can of worms and you say that litigation over the appointment of the electors does not affect the date on which the electors are appointed, you take the proposition that electors are appointed on Tuesday, November 5, no matter when litigation around the electors is settled, then absent the ecra, you could have a constitutional argument that you can litigate that all the way up to

January 6th itself, which was Larry Tribe's position in 2000. His view was they could litigate all the way till January 5th.

Right. But I think something to be said in favor of the Bradley view, even if it's not slam dunk, is, again, there's got to be some finality somewhere to avoid chaos. And then, I mean, we aren't dealing with the Constitution as a blank slate. I mean, Congress is clear, clearly taken a position in the new ECRA on this. And so the only way you could get out from under the congressional judgment that December 16 has finality is to make an argument that the ECRA is unconstitutional in this respect. And that seems a very difficult argument to make in my mind, given the Necessary and Proper Clause, given the arguable weight of. I mean, if Congress itself was debating whether Bradley's correct or Tribe is correct, it comes out on the side of Bradley. That seems a reasonable congressional judgment under the Necessary and Proper Clause. So how you would get out from under the statutory deadline seems difficult to me.

Yeah, but taking Matt's hypothetical, you could understand how they would get out from under the deadline. So if it really was appears like bad faith that got us into the mess, and it's pretty clear the judge's decision was wrong. You could, you know, maybe not this court, but you could easily imagine a court, the Supreme Supreme Court, saying, as applied, we're not going to recognize this deadline as, as final. And so we're going to allow the state to correct it after the resolution of this litigation. I mean, so it's just in response. So this is the, I think this is the sense of equity could have more play if, in fact, you had a view about the nature of the reason why you're up against the deadline. And that's the only hypothetical I think we're trying to isolate, Derek.

I mean, we have to jump through several steps to get to that hypo. Right. Because in most states, you're going to have blown past existing statutory deadlines to even file contests. States like Pennsylvania and Arizona have issued scheduling orders about the timing of review of these things. And you're also looking at the December 11th deadline, and that is going to be the first deadline that courts are watching, getting the executive on board with whatever the proper certification is. So that 12th through 16th window, again from a sort of a judicial construction of the statute, looking at the framework is going to be sort of the backstop in the event that there's been a failure in this sort of bad faith scenario. Again, we haven't seen this. We didn't see it in 2020. We didn't see some judge on January 5th issuing an order in Fulton county to say stop the steal or whatever it was. So we have to get to a scenario where. Like that. But again, I think you're right, Larry, to say that there is sort of a constitutional overlay on this. Right. Imagine, imagine that a judge in Texas or a judge in Quebec orders the court, the canvassing board in Philadelphia, to stop counting the votes and throw it, which, of course, it's wildly illegal. And it doesn't say that it has to be jurisdictionally appropriate. But we know that there's some part and parcel of thinking about what judicial relief entails, including the mere fact that you have jurisdiction to exercise judgment in the first place. So of course we can disregard. Of course you can disregard the Quebec order. And I don't know that if the court has to come up later on and say, I think we disregard that that that's something else, that there's something problematic about that.

I think with federal there are some federal judges who are quite keen to issue nationwide injunctions from the Amarillo Division of the Northern District of Texas. Maybe we have an injunction on the evening of December 16th in joining all governors in school swing states from certifying the election results. I agree with you that these hypotheticals seem fanciful. And so the exercise we're in right now is to talk about these black swan events. But if it does come to pass, that's when the constitutional overlay of the statute starts to, I think, take more salience.

Yeah, but I agree with Derek. I don't think you have to go to saying that the statute's unconstitutional. I think you can construe the language of I don't have the new Section 5 right in front of me, but it talks about these judicial orders being conclusive and a federal court order being conclusive with respect to any issue of federal law. I think it's a fair reading of that language that it has to be a court whose exercise of jurisdiction in the case has legitimate call over authority. And so the Quebec example, obviously not applicable. Right. And so I do think there's room to say that some judicial decrees don't count as judicial decrees for purposes of section 5 if they are patently illegal or in bad faith, et cetera, et cetera. And I also think the other campaign can take some proactive ways to prevent against the last minute lower court decision. I mean, you could file an emergency writ in the US Supreme Court if necessary, to advise the court that it may need to render null and void any lower court decision that attempts to mess with the U.S. supreme Court supervisory authority over litigation. And I hate to say this, but I think there's some good analogy to death penalty litigation. I mean, there are the US Supreme Court is familiar with absolute deadlines and knows how to litigate life and death cases in a single day timeframe up to a midnight deadline. And so I assume that smart Supreme Court lawyers who were familiar with that practice, as well as the Supreme Court itself and its own clerk's office, can protect that court's jurisdiction to make sure there isn't any untoward behavior with respect to the applicability of the rule of law, reaching a rule of law conclusion by midnight on December 16th.

Okay, let's move beyond. So we all agree that the legislature, even though it has power under Article 2 to set the manner of appointment, is constrained by Congress's power so that it can't make an appointment of electors except on the day Congress sets. So after election day, there's no way for the electors to come in and say actually we're going to appoint these slates of electors different from the ones that were elected, even though on election day, as they've been toying with in North Carolina, they could pass a law that says we're going to pick this slate of electors for the state of North Carolina. What is the view about a hypothetical Matt and I describe in our book where the elector, where the legislature after elect after the date of appointment exercises the power to tell the electors how they must vote. So to fill out the hypothetical, it's an extremely close election. There's lots of talk about fraud, blah blah, blah. People are really there's like baseline skepticism about exactly who won. And the legislature steps forward and says we believe the process was not fair or right or whatever. So we're going to say the electors appointed on electors, they have to vote for the other candidate and under the removal provisions for that state, if they fail to vote, they're removed and replaced. How would that fare?

Derek so I think that's illegal. Again, the laws have to be in place on November 5th.

The laws do what?

The laws for appointment have to be in place on November 5th.

Okay. But the law is in place before nobody's mucking with who's appointed. It's now the question of how they vote.

Right. So if the law is that the legislature can show up on a later day and essentially tinker with the process, I mean, to me that's just an end run around fixing the date of the election. The election is on November 5th and that's the appointment of electors. And to me there's a part and parcel of the appointment process which includes the authority granted to the electors and their responsibilities and their obligations and the ascertainment of who the winner is and what their pledge is and all those kinds of questions. And so it's a reason why we can't afterwards sort of go back and the legislature can't show up in the 10th and say, oh, we're now the canvassing board because you had to have those rules in place on the 5th and you can't show up afterwards. And even if you pass a rule on the fifth stand saying we give ourselves sort of unfettered discretion on December 11th to identify the true winner, again, in my judgment that is an end run around. An end round is a lawful play. So I shouldn't use that example. But it's a way getting around of like what is the fixed deadline, which is November 5th. And to sort of for the legislature to claim that it has the authority to ascertain a winner in its ad hoc judgment of free and fair process or whatever it might be to me does not meet the fact that Congress has chosen the time of appointment of electors. And that appointment of electors includes the responsibilities given to the electors and the flexibility and freedom that they have in that moment as determined on election day.

Ned yeah, I guess I would add to the fact that the appointments to statute that was in place on November 5 had with it that the appointment was going to be based on popularly chosen electors in a regime where those electors were pledged to the party's candidate. And in fact, whether we think Jiafila was decided rightly or wrongly, it does seem to say that the appointment power, as Derek's saying, includes some control over how the appointed electors vote. So I think you could say I take Larry your point, that technically speaking the vote of the electors themselves is different from the appointment of the electors. But I think Derek is right that in this situation the appointment of the electors is predicated on certain rules and procedures associated with the appointment of the electors. And one of that includes the pledge that it's for the parties candidate in accordance with the popular vote and so that changing that afterwards is changing the regime for appointing the electors. I think you can say all of that without adding a due process argument on top of that. But I do think the Roe versus Alabama due process principle would also kick in and frankly Bush versus Gore itself. Bush versus Gore says states under Article 2 can choose the manner of appointing electors. They don't have to have a popular vote, but once they they choose a popular vote as the method for appointing electors, the 14th Amendment constrains the state's manipulation of that popular vote. And that's on equal protection grounds and also on due process grounds. So if Roe vs Alabama is correct to process law from the Supreme Court's perspective, as I think it would be, I don't think the state legislature can manipulate the, the popular vote process in a way that contravenes due process.

And on top of that, I mean I think about the hypo, you know, these ballots in the vast majority of states will just list the candidates names, right? So when you are voting as a voter for Harris Walsh, you anticipate there are 10 electors behind that. Maybe you don't know that. Right. But you know that it stands for something behind it. It's one thing, as Chief said, states can do that electors must vote for Harris Waltz. But it's another thing to suggest that the legislature can later say electors are forbidden from voting for Harris Waltz, even when that's the name on the ballot that the voters are casting their vote for. Right. I mean, there is. There is a subversion there that seems inconsistent with the manner of election that the state has chosen itself. Now, we can spin the hypothetical out in a much more complicated ways about voting for individual electors and things like that, but again, I think in any sort of realistic scenario, with statutes on the books on November 5, it's problematic to reserve this residual authority after election day.

Matt, do you have a. I think that's all right. And, you know, I think it's important to emphasize both the appointments clause argument here, that that has to be that the matter of appointment includes this, the conditions of. Of appointment. And I think the due process argument that Ned references from Roe v. Alabama is really important here as well, because I think that's part of the requirement that the manner of appointing electors be set by the time the appointment takes place, including the conditions. And so I think the due process and appointments clause arguments are really sort of a symbiotic whole.

Yeah, and I agree with that, too. And the only complication, again, is the timing question. So if you imagine a state that set this rule and set an automatic removal provision for electors that fail to abide by the rule, you've got to get a pretty quick judicial intervention to be able to displace that alteration. And I think you'd have 9, 0 in the supreme court affirming that position. But, you know, that still requires 9, 0 in the supreme court. Okay, so now we've got electors appointed. We've got electoral votes that are cast. Now we get to January 6th. One point I just want to start with is to really ask what's the realistic effect of the law here in light of what we saw in 2020? You know, in 2020, we had an objection to the counting of the electoral votes a bunch of states. But it started with Pennsylvania. And, you know, Josh Hawley pushed that objection, and eventually 147 members of Congress joined it. It's my view that Josh Hawley had no legal basis for an objection because under the electoral count Act, Pennsylvania was the easiest case. It was a case that had an election. There was a manner for contesting that election. The contest of that election was finished and within the safe harbor day, and under the laws that existed then, Congress was directed that it must count those votes unless the votes were not regularly given. And we know they were regularly given because A, they were cast on Electors Day and B, we know that they were not coerced to vote as they did. The Biden electors voted for Biden. They weren't bribed to do that. They weren't threatened to do that. So there was no legal basis for objecting. Yet we had that whole show of an objection and we had 147 members of Congress who said we're not going to count Pennsylvania's, we don't want to count Pennsylvania's ballots. So do you read that as then just not understanding or then just like feeling the law is not actually constraining what they do?

DEREK yeah, I mean, to me, the objections in the last 25 years, successful and failed or successful objections in terms of the ability to debate them or failed ones where somebody tried to raise the objection but didn't get the requisite number of signatures are not necessarily a lack of understanding of the law, but just sort of ignoring it and trying to bypass it. And part of that is you could say, well, there's some ambiguity in the statute about what the Electoral count reform or what the Electoral Count act permitted. It's a run on sentence with really no constraints as to what it looks like when you're filing objection. You're just sort of free form in terms of the language that you're using. But to me, it reflected a lack of understanding of the law. And I think one of the goals of the Electoral Count Reform act is to separate some of those clauses into much more digestible components, give some much clearer rules, especially for whether or not the votes are lawfully certified, right, to identify that there's one certificate coming from the state and to essentially try to put more pressure on that legal framework in a way that I don't know if it will necessarily guilt members of Congress into thinking that these words are not just free form expressions, but they have defined terms in the statute that refer back to something specific. And you can't blame a lengthy run on sentence in archaic language as some basis to say, well, Congress isn't really constrained by it.

Yeah, well, I just want to press you actually made a contribution here, but I just want to emphasize that it's not just a willingness to ignore it. I had a conversation with a member of Congress afterwards and I won't name the member because I don't want to embarrass that person. And I said like how did they think that they had any authority here? And the member of Congress says, well, it says that the votes have to be regularly given. And the whole argument was of whether the votes were regularly given. That was the contest. And I said, what do you mean? And they said, well, they were arguing about whether the absentee ballots should have been counted or. And I said, no, that's not what they're talking about. They're talking about the votes of the electors, which, Derek, you testified to. And now the Electoral Count Reform act expressly says votes of the electors regularly given. So that ambiguity has been resolved. But it was kind of astonishing to imagine that there are members of Congress who just didn't even understand this most basic feature of the Electoral Count Act.

And again, I mean, Ned knows about Ohio in 2005. Right? But that was the objection filed in Ohio in 2005 as well. The votes were not regularly given. And that's the same language than the Ted Cruz used in 2021 with Arizona. And they just looked at the statute. They plucked a language from the statute. They dropped it into objection, and there was really no effort to determine what it meant in the context of the statute. Except we're objecting to something. We can gesture to a couple of words in the statute, and we can proceed forward. So. So there is greater clarity and awareness. Again, I don't know that that will last more than a generation. I hope it does, but the goal was to provide some more precision in the act going forward.

And I'll just add, I agree with you, Larry, that what Senator Hawley did was not proper under the old statute. I agree with Derek that unfortunately the old statute had to run on sentence. But I think an accurate understanding of the old statute made what Senators Cruz and Hawley and all the other members of Congress did inappropriate. I thought then Representative Cheney, who wrote a memo about how January 6th should go from the point of view of the members of Congress, was an excellent memo in terms of explaining the limited role that Congress had under the old ECA and the Constitution. Constitution. In terms of just receiving the state's electoral votes and opening them up and counting them without relitigating what the state sent. But I think going forward, as Derek says, we're so much better off that we now have the new ECRA and not the old eca. It should be absolutely clear to every member of Congress what their obligation to accept as conclusive, what the statute treats as conclusive.

Matt, I agree with everything that Derek and Ned have said both about the old ECA and the new ecra, and I think we're in a much better place now. I think the forensic question of whether the objections on January 6th of 2021 were out of. Of good faith, ignorance, bad faith, willful blindness, or intentional manipulation is one for historians to unpack. I think for our purposes, sitting here a couple of days before election Day In November of 2024, it's a question that matters for what we think is a realistic possibility of the political outcomes of what members of Congress might do on January 6th of 2025. Because. Because I hope that Derek is right, that the ECRA is clearer in a way that the ECA was not, and therefore Marjorie Taylor Greene is going to say, you know what? Okay. Under the new statute, I just don't have the authority to object on the grounds that there were millions of non citizens who voted in Pittsburgh. I hope you're right, Derek. I also feel fear that that might be an overly optimistic view of the political dynamics in Congress.

Well, let me just add, though the caveat, that while the Electoral Count Reform act does add those objections, it also requires now 20% of each chamber to successfully file an objection. So in a sense, the stakes are unfortunately lower for any one member of the House to file a frivolous objection, because of course I can file a frivolous objection. It goes nowhere unless I get 86 of my colleagues in the House to join me, plus 20 senators. So we might see more of those futile attempts. But I think the notion that we're actually gonna get to 20% of the Senate joining in a written objection to separate the chambers for two hours debate, I think the objections are much more likely to fail like they failed in 2017, like they failed in 2001. It will be Vice President Harris gaveling down the objections one after another, just as Joe Biden did, just as Al Gore did. But that is the place where I'm looking for some of that resistance to misinterpretation of the law to take place.

I fully agree with you on that. And even if 20 senators go along with a frivolous objection, I think the political prospects of 50, 51 senators going along with a frivolous objection, which is what would be required because you need both chambers to vote in favor of rejecting an electoral vote. I think you're right that that is really, really unlikely as a political matter.

Right. I think that's the absolute key point, Matt, that you just said. The ecra, the new statute, is unambiguous in requiring a majority of both chambers to sustain an objection. And it just seems inconceivable to me that the Senate, which is the locus of the bipartisan compromise to create the ECRA to have a better statute is going to basically act irresponsibility under their own creation. So regardless of what might happen in the House of Representatives, I think the Senate's going to hold the line and act properly under the statute.

Okay, so we, we've identified the two bases for object, for objecting. Number one, that the electoral votes are not properly certified under Section 5, and number two, that the votes were not regularly given. It follows from that that if somebody stands up and says I object to counting these electoral votes because the candidate is an insurrectionist, that's not a legitimate basis for objecting.

Well, I don't think we're going to see this given everything that I've heard, but I think that that would be a claim that the candidate that the electoral votes were not regularly given because they were cast in favor of a person not eligible to serve in office. That would be a subset of something falling within the not regularly given objection.

So it could fit within that objection, but it would require the significant members supporting it. That's right.

Let me add one additional gloss on that, which is part of the point of the ECA and the ECRA by giving each chamber two hours debate rather than creating a commission that spent days, weeks investigating stuff, is that the joint session is supposed to deal with things I think that you could determine on the face of the returns, if you will. Right. Those things that are obvious. So if they meet on December 20th as the electors not regularly given, and I can solve that in two hours debate. If the President has been impeached and convicted by the Senate and is therefore no longer eligible to hold office, but gets electoral votes, I think I can determine that in two hours. The question though of are you an insurrectionist sort of free floating without a criminal conviction, without a civil ascertainment, whatever that might be to me is the kind of thing that Congress has chosen to construct constrain itself to not investigate, to not make a determination and to simply count those votes.

Okay. And it follows from what we said before that no electoral votes except those that have been certified under section 5 can be presented to Congress. So the Vice President can't present them. And an objection to not having them presented would fail because the, the grounds for objection are also tied to section five. And so there's no reason for electors to meet and vote if in fact those rules would apply to exclude their votes on electors on January 6. We agreed on that.

Yeah, I think that's, I mean there is some scenario, Larry, as you talked about, if there's a real contestation, that you still might see two submissions of electoral votes from the same state. The ECRA is supposed to make completely clear which of those two submissions is the correct submission. The Vice President acting as Senate President is supposed to be purely ministerial and not make substantive decisions. So I think there is a bit of an additional question of whether the one thing that Vice President Pence did that I think was valuable and was a bit of an innovation was to refuse to put in front of the joint session these alternative slates that had no official pedigree whatsoever. Right. There was no governor's signature supporting them. There was no official action of the state legislature supported them. There was no judicial decree. They were just self asserted, we're the electors. And on the advice of the Senate Parliamentarian, Vice President Pence said they don't come within the language of the old ecra, meaning they're not purporting to be electoral votes, even if they were in some colloquial way purporting to be electoral votes, because they had no official designation as being the state's electoral votes, so didn't count as purporting. So they weren't put in front of the body. And I think that was a correct judgment. If you happen to have a situation, I don't anticipate it, where a rogue governor defied a judicial decree and that gets to Congress. But then there is the other slate that has the backing of the US Supreme Court as the final judicial resolution. It would be a, certainly it would be a defensible decision of the Senate President to only submit to Congress the submission that has the Court's backing. But you can imagine the Senate President thinking that they're not supposed to be decisive, thinking that consistent with their ministerial role, they're supposed to put both of those submissions in front of the joint session. And the one that comes from the Governor should be rejected as not lawfully certified under Section 5 because it's plain that the one carrying the judicial imprimatur is the true certificate. But it's not inconceivable to me that there could be some scenarios where it's necessary for the joint session to pass judgment on more than one submission of electoral votes.

Okay, but you're plainly just asserting a point of equity, not the reading of the statute. Right. So let me go back where you defended the parliamentarian. I think the parliamentarian was practically very sensible in her advice to the Vice President Pence not to submit those other papers to the Joint session. But the language of the ECA was pretty simple. It said all the certificates and papers purporting to be certificates of electoral votes. And. And the new ECA has been written to basically back up what she recommended in 2020, because the new ECA says that it's all the. It's the electors, electoral votes and the papers purporting to be electoral votes. And then it says properly Certified under Section 5. Right, so in your scenario, Ned, where the rogue governor's certificate is the one properly certified under Section five and you're not.

No, it wouldn't be the one properly certified under Section 5 because it would have been superseded by the judicial decree. That's conclusive.

Yeah, but the judicial decree, if it comes after the time the electors vote.

Oh, yeah, yeah. No, I'm contemplating the situation, which. Oh, okay, yeah, yeah. The governor acts, maybe by December 11th. Fine. It was initially a presumptively valid certification, but then the US Supreme Court says, no, no, no, it's wrong. And on December 14, orders the governor to recertify. The governor refuses.

Yeah, now we're agreed. So as long as it's before the electors vote. But those are the only ones you can have. So when it's saying papers purporting to be. It's a kind of weird category now because there's basically no way, you know, except, I mean, I guess you've just given the. Really the best example. If the governor still asserts and, like, signs the papers, regardless of what the courts are saying or what the Supreme Court is saying, then you would have something purporting to be something from the executive, but you would, in fact determine that it's the improper one before the executive. That's exactly right.

Now, I want to emphasize one. One complication with Ned's scenario here. The premise that there will be one and only one certificate of electoral votes that has any kind of plausibility at all is so baked into the architecture of the ECRA that if you do have a scenario where the presiding officer feels that she should not make any type of substantive decisions whatsoever and so should present multiple certificates of electoral votes to the. To the joint session, then you can get into a problem of mathematical logic where because both certificates are before the joint session and it requires both chambers to reject either of those certificates of electoral votes, and if the chambers disagree about which is the correct one there, then the seeming outcome of the rules of the ECRA is that both sets of electoral votes get counted, which would be unconstitutional because it would increase the number of electoral votes for the states in question. And so I think that that's, I think, obviously not an intended result. And so I think what it illustrates is the extent to which the assumption of the statute is that there will be one and only one even remotely plausible certificate before the presiding officer and before Congress. And if that presumption, that premise fails, then things go off the rails pretty quickly.

Okay, so final question, the contingent election question. So what's a reasonable scenario where we could, I mean, forgetting the tie in the electoral college or imagining that, you know, some third party candidate got enough electors to mean that nobody was going to have a majority? What is a plausible or reasonable scenario where we wouldn't have sufficient number of electoral votes to get to a majority that would throw it into the House of Representatives?

None. And this is really important. You cannot get to a contingent election under the 12th Amendment without completing the count of the electoral votes. And under the statute and the predecessor statute, states are taken in alphabetical order, starting with Alabama, ending with Wyoming. And so there's no occasion to trigger a contingent election until you know how Wyoming's electoral votes were. And there's a declaration by the Senate president of what the final totals are and whether there's a president elect with a majority of electoral votes. So if the count gets stalled at any point along the way over Pennsylvania or Arizona, if the count never starts for some reason because the House hasn't elected a speaker and the House hasn't organized itself, none of that triggers a contingent election. You have to, and the 20th Amendment is the relevant part of the Constitution on this. If Congress has not completed the counting of the electoral votes and declared either there is a president elect with a majority or there isn't, in which case there would be a contingent election. But if that hasn't happened, the 20th Amendment says that if on January 20th you're in an acting president situation pursuant to that amendment, there is zero scenario in which the incompletion of the count could trigger a contingent election.

I agree with that. I was asking about something, I think different. So I'm talking about votes from a state not being certified that would change the denominator so that you would get to a case that you might not have a majority. Right. So this is again linking back where we started to where we're ending. What's the scenario?

The only reason why you would still have the denominator 538, but an electoral votes cast for two candidates without a tie and not a third person would be if there was a Sustained. Objection. On the grounds that electoral votes were not regularly given because you reduce the denominator. If, if the electoral votes are rejected on the grounds that the electors themselves were not lawfully certified their appointment. If we're setting aside the possibility that there would be an objection to electoral votes cast for an insurrectionist is just not going to really happen as a practical matter this year, Derek may know, I can't really foresee a realistic circumstance in which electoral votes would, would be rejected as not regularly given.

That's right. I mean again, so you have to get over the counter factual of getting 51 senators on board with any objection. But if a state's electoral votes are not certified in time, which again is in my judgment an implausible scenario that

would go to the appointment of the electors that would reduce the denominator.

Right.

Then it would have reduced the denominator. And so that's not a scenario either unless it somehow results in a tie by throwing out a group of electoral votes. But, but yeah, the much more plausible at, you know, four in a thousand I think were the last odds I saw is the electoral college tie and that would be the one that goes to the House of Representatives in the contingent election election.

If there is one thing to, to bear in mind and I hesitate a little to bring up this hypothetical, I agree with everything that's been said by Ned and Derek. One constitutional requirement is that the electors meet and vote on the appointed day. We have seen an increase in threats of violence. Indeed we saw on January 6. We also have some precedent where states electors didn't vote on the appointed day. Wisconsin in 1850, 1857 and there was a snowstorm that prevented the electors from meeting in the state capitol on the appointed day. If for whatever reason the electors are prevented from voting on December 17, then there would be a constitutionally plausible argument that those electors votes were not regularly given, thus reducing the number of electoral votes cast without reducing the number of electors appointed, which as Ned and Derek have explained would result in, or could if the math works out, result in a contingent election. Now that I think is a extreme scenario, but I think it's the only one that really is a possibility that in current conditions we might want to think about.

So in 2020, Nevada's electors met over zoom, they met remotely and cast their votes. States like California have amended their statutes for the meeting of the location of electors to say that in events of emergency the meeting can take place in a different place or in a different manner. So there are and we allow so Easily the replacement of electors for alternative electors in different scenarios to be able to quickly sort of substitute. So I agree that's a really perilous situation to think about, Matt, but I do think there are some contingencies and some resiliencies baked into the law that will hopefully reduce the concerns that those issues might arise.

Okay. And just to qualify one important point, Ned, you said, is there any argument that the President, that the president elect is chosen prior to the vote of the electors?

I'm sorry, I'm not sure I followed the.

Well, you know, the 20th Amendment has a whole bunch of things that get triggered, you know, based on events like somebody dying or things like that, based on there being a president elect. But conceivably there's not a president elect until the electors. I mean, I think the proper interpretation is there's no president elect until the. Until the electors vote.

Right, right.

So. So there's a. You could have a winner of the popular vote on election day, and that's. That's the winner. That's who we expect will be the President elect. But that person is not President elect until. Until the electors vote.

Correct. And, yeah, and I agree with that 100%. I think. I think the. The election of the president occurs under the Constitution on the elector's day, but I think for 20amendment purposes, that's not cognizable until Congress recognizes the election that occurred back in December 17th. Even if everybody has the expectation that when the count is complete, candidate X is getting more than 270 electoral votes, even if colloquially we understand that person to be the President elect because of what happened on December 17, Congress has to recognize that in its joint session for the inauguration to occur on January 20th. And so if Congress, for whatever reason, hasn't made that recognition of what's happened, there needs to be an acting president at noon on January 20th.

Yep. Okay. So this has been great. I hope none of it matters. I hope that there's no reason for. For us to have this continuing conversations. So grateful for your time. It's been 30 minutes more than I asked for, so I'm even more grateful for that.

That was a conversation between me, Larry Lessig and Derek Mueller, Ned Foley and Matt Seligman about the process between Election Day and the day the President is confir confirmed on January 6th. These podcasts are produced in the sense of sponsored by EqualCitizens US. You find us on the web at EqualCitizens US and this podcast at EqualCitizens US AnotherWay. And there you can find a place to give us feedback and ideas and to see the other episodes in the many seasons of this podcast. The podcast is produced in a physical way by Josh Elstrow of Elstro Productions. Josh has been a careful editor of Our Words for many years, and we're grateful for his support. But we also are grateful for your support to help us fund the production and distribution of this podcast. You can Support us at EqualCitizens US Donate Stay tuned for a new series Series beginning in the new year that will continue the conversation that was begun in the last series about the fight to end Super PACs. Because for me, the one great result on Election Day 2024 was Maine's overwhelming ratification of the initiative. Question one that tees up the fight against Super PACs. Question one limits contributions to independent political

action committees to staunch the effect of

big money in Maine's elections. And if that is challenged, which it will be, and it works its way through the courts, which we will be supporting however we can, I'm optimistic it will get to the United States Supreme Court. And in the United States Supreme Court, the Court will have a chance for the first time ever to address a question that has been bedeviling American politics for 14 years. Whether contributions to independent political action committees are constitutionally protected in the sense that they cannot be limited, or whether Super PACs were part of the secret plan James Madison had when he gave us the First Amendment. Stay tuned for that season. Thanks for listening to this. Enjoy the holidays. And if you're like me, enjoy Christmas, which is, in my family, the favorite holiday of the year. Thanks very much for listening.

Sam.