It’s been an unusual and unprecedented election season in which we have seen anti-democratic actions and efforts in ways we have not seen before.
Most recently, we have seen President Trump exerting pressure on state officials to overturn the results of the election in their states. The president invited the Republican leaders of the Michigan state legislature to the White House with the apparent purpose of enlisting them to take action to override the slate of electors determined by the ballots cast in the election with a slate supportive of him. After that meeting, the Michigan lawmakers released a statement saying, “We have not yet been made aware of any information that would change the outcome of the election in Michigan,” calming, at least temporarily, the fears of many observers worried about the integrity of the election.
Despite the lawmakers’ apparent refusal to upend the democratic process in Michigan, this whole episode has raised questions about what the possibilities are for legislatures to muddy the waters in terms of a given state’s electoral votes. Can state legislatures send a competing slate of presidential electors to the Electoral College to cast their votes? And what happens if they do?
Let’s take a look at six points about the relevant law on this issue that are important to understand.
1. Laws to Resolve Election Controversies Have to Be on the Books By Election Day
Federal law gives the states some leeway in resolving controversies or contests concerning how the states’ electors are chosen. Here is the relevant statute:
If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned. 3 U.S.C.A. § 5
A state has until six days before the meeting of the Electoral College to resolve any dispute or controversy about which electors are to be appointed to represent that state. This can be done by “judicial or other methods or procedures.” In theory, the legislature could take action to determine such a slate as a way of resolving a controversy.
However, the laws under which such a dispute resolution takes place must be in effect on election day: “…by laws enacted prior to the day fixed for the appointment of electors [i.e., election day].” Indeed, the Supreme Court has ruled that a state legislature’s determination of a controversy is conclusive, provided that it is made by a mechanism established “by a law made prior to election day … if made at least six days prior to said time of meeting of the electors. Bush v. Palm Beach Cty. Canvassing Bd., 531 U.S. 70, 77–78 (2000)
Since all of the states in question have laws on the books that assign the state’s electors to the winner of the popular vote, there is no legal method by which a legislature could substitute its own authority and judgment over that of the popular vote. They can act to settle controversies about the popular vote but cannot set it aside. The question of how the electors are chosen is settled.
But what would happen if a state legislature were to press ahead regardless and submit its own competing slate of electors?
2. Congress Declares the Winner of the Electoral College Vote
Under federal law, the casting of the electoral votes is confirmed in the Congress. Both houses of Congress are convened on January 6, at 1 p.m. in the House chamber. There, four tellers—two selected by the House and two by the Senate—count the certificates from the states as they are opened and read by the President of the Senate in alphabetical order. The tellers keep track of the vote count and when it is final, they deliver the results to the President of the Senate who announces the “state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States.” 3 U.S.C.A. §15. 3.
3. Members of Congress May Make Objections
When the President of the Senate reads a certificate or paper from a state, objections may be made by the body. An objection has to be in writing, stating a reason, and signed by both a Senator and a Representative. Objections are read before the body and then the House and Senate withdraw to separate chambers to vote upon the objections.
However, under the statute, Congress is limited in its ability to reject the electoral votes of a state which have been lawfully certified and for which there is only one return. That is, if, say, Michigan’s electoral votes are lawfully certified and are the only votes forwarded to Congress, the Congress cannot reject them. However, “the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified.” What this means is that Congress could reject a state’s electoral votes if they agree that they were not certified properly. But this would require agreement by both houses of Congress and only in cases lacking proper certification.
4. Congress May Only Count the Electoral Votes of Electors Properly Appointed
In case competing returns have been received from a given state, from two or more different slates of electors, only the votes of those electors who were appointed according to the process affirmed above in part 1 would be counted. That is, only those electors, appointed as the result of the popular vote and confirmed or discerned under the laws on the books on election day at least six days before the meeting of the Electoral College would be confirmed.
5. Congress Can Sort Out Competing Authorities
It might be the case that two different authorities in a given state claim to be the “tribunal” for determining which electors have been appointed. In this case, it’s not a question of whether the electors have been certified, but whether they have been certified by the right authority. In such an instance both houses of Congress must agree which of the competing slates is authorized by the law of that state.
For example, let’s imagine that the Michigan legislature did send a competing slate of electors to the electoral college and that slate voted for Donald Trump, whereas those electors determined by the popular vote, certified by the Secretary of State, voted for Joe Biden. In this case, each house would vote as to which returns were to be considered cast in accordance with the laws of the state of Michigan. In this circumstance, an examination of Michigan law would award the votes to the slate determined by popular vote and certified by the Secretary of State.
6. When Congress Can’t Agree, the State Executive’s Slate Wins
But what happens in the nightmare scenario, when a Democratic House of Representatives votes to recognize the authority of the returns sent by electors chosen by the popular vote and certified by the Secretary of State but a Republican Senate votes to recognize the authority of the returns sent by the electors picked by the state legislature?
The law is clear:
But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted. 3 U.S.C.A. § 15
If the House and Senate cannot agree, then the votes of the electors approved by the state’s governor under official seal shall be counted. So, in our scenario, were Michigan’s state legislature to send a competing slate of electors to the Electoral College, were those electors to provide a competing set of returns to Congress, were the houses of Congress unable to agree as to which set of returns to acknowledge, then votes default to those certified by Governor Whitmer and the Michigan Secretary of State. The same would hold true for Georgia, Pennsylvania, Arizona, and Nevada and the slates certified by the governors of those states.
In the end, although the process of electing a president is a lot more arcane and complicated than it appears—or perhaps than it needs to be—when we step in the voting booth on election day, the result is that it would require extraordinary steps to undue the results of a democratic election. The realities of state election law, federal election law, and Congressional action—not to mention the democratic norms that remain in place—present incredibly difficult obstacles to get around.
The American political system has had many of its weaknesses put on display in recent months and years, but notwithstanding the bluster and outlandish claims of a few, the electoral system reflecting the will of the people remains intact.