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1) Fear not. Today’s electoral votes are NOT conclusive.
2) IMO the Electoral Count Act (3 USC sec. 1-21), at least sections 15-18, is unenforceable as it violates the non-delegation doctrine, the Rules Clause, and Separation of Powers.
3) The reasoning behind my belief is, in part, eloquently and thoroughly examined in “On the Unenforceability of the Electoral Count Act” by Chris Land and David Schultz. But for the purposes of this thread, I will analyze as if we will be governed by the Act in its entirety.
4) Sec2 of the ECA (which I think has sep of powers probs) says that electors appointed by the “Safe Harbor” deadline are considered conclusive for the vote count IF the state has provided for its final & legal determination of any controversy or contest concerning the electors.
5) Section 3 reiterates the duty of state executive to send a certificate for electors only where there was an ascertainment of the vote count which was both legal and final.
6) Section 5 states that if a state made a final determination of controversies and contests concerning the appointment of electors according to its laws, then the electors' appointment according to these determinations shall (must) be conclusive.
7) So, the converse of that is that if there is no final determination of controversies or if the final determination of controversies was not made according to state law, then the electors are not conclusive.
8) In section 15, the Act contemplates “dueling electors” where sets of electors for both candidates send certificates to Congress. There, the law states if there is more than one certificate, the VP can count only those votes which are in accordance with section 5.
9) So, what if there are no votes in accordance with section 5 from a state? The Act is also silent as to the scenario wherein there are valid electors who were sent after the safe harbor.
10) Once again, there is only one scenario we can look to as precedent: my fav state, Hawaii! In 1960, only 1 set of electors from Hawaii was certified by the "safe harbor" deadline. A slate for Nixon.
11) There was an ongoing suit seeking a recount. A judge issued a recount to begin the day after the safe harbor deadline, December 14, 1960.
12)On the day that the electors were required to vote (December 19, 1960), both sets of electors cast votes for their candidate.
13) The Rep electors cast their votes for Nixon with the support of initial election results and a certification from the governor. The Dem electors cast their votes for Kennedy with the support of an incomplete recount showing Kennedy ahead by a very narrow margin.
14)IMO, the certified votes for Nixon didn't qualify for the safe harbor bc there was no final/legal determination of controversies & contests because there was a request for a recount.
15) As an aside, allowing a state executive to certify questionable results where the executive is charged with administering elections, in effect allows executives to insulate themselves from the consequences of their actions, but I digress. Back to Hawaii.
16) On Dec 28, the recount revealed the Kennedy had won a narrow election and on December 30, a judge entered a judgment recognizing that result.
17) Well after the electors had met and cast their votes sending their certificates to Congress for the January count, the governor of Hawaii sent another certificate for electors for Kennedy. The date of this certification was January 4, 1961.
18) Not until the morning of January 6, did Congress receive a revised certification from the governor of Hawaii along with the court’s decision.
19) During the electoral count, as per the ECA, the Vice President opened all the certificates in alphabetical order. When he arrived at Hawaii he said: “The Chair has received three certificates from persons claiming to be the duly appointed electors from the State of Hawaii…
20) In order not to delay the further count of the electoral vote here, the Chair, without the intent of establishing precedent, suggests that the electors named in the certificate of the Governor dated January 4, 1961, be considered as the lawful electors from the State ...
21) If there be no objection in this joint convention, the Chair will instruct the tellers – and he now does – to count the votes of those electors.”
22) Regardless of the Vice President’s statement that he didn’t intend to establish precedent, that’s not exactly how precedent works and this electoral count is the only one we have to look to.
23) If there are dueling electors, which there are, the VP may at least suggest the proper set of electors or that neither can be considered because of wrongdoing or overwhelming doubt or fraud, etc.
24)Then, according to the ECA, the issue would go to the separate houses for resolution. Assuming a Republican Senate and a Democratic House, the issue would be left unresolved.
25) Additionally, without a valid certification to fall back on according to sections 5 and 15 (see post 4-7 above), it appears that no electors would be counted from the state.
25)In the event that enough electors are excluded from the count & no candidate receives a majority of electors, then according to the 12th Amendment, the decision would go to the House with each state receiving 1 vote. In that case, Trump would likely be the next president.
