THREAD: I haven’t said much about the #ElectoralCollege this week, despite two decades of studying the system, because I needed time to formulate my thoughts on some of what we are watching. /1
Disclaimer: I am not taking the “fraud happened” or “fraud didn’t happen” side. I am simply answering those who have been asking me if congressmen can reject electoral votes from the 6 disputed states and/or what I make of the extra GOP votes. /2 #ElectoralCollege
Monday’s Electoral College vote was highly unusual. On Monday, two slates of electors met in six states and both slates cast their votes. The last time something like that happened was in 1876. /3 #ElectoralCollege
In 1876, three states (SC, FL, LA) each appointed two different slates of electors and sent them to Congress. Congress was forced to decide which slate of electors to count from each of the contested states. /4 #ElectoralCollege
Needless to say, it was a big mess. The election wasn’t decided until 2 days before Inauguration Day. Afterwards, Congress passed the Electoral Count Act of 1887, and that Act provides the foundation for much of our current law. /5 #ElectoralCollege
There’s one significant difference between 1876 & 2020. In 1876, each slate of electors in SC, FL, LA had the support of state officials. The Republican state officials supported the R slates and the Democratic state officials supported the D slates. /6 #ElectoralCollege
As I understand Monday’s events, the Republican electors in MI, NV, GA, WI, AZ, PA met on their own. State legislators didn’t ask them to cast their ballots. (Someone correct me if I am wrong on that score.) /7 #ElectoralCollege
3 U.S.C. §15 governs what happens when electoral votes are submitted to Cong. The House/Senate meet in joint session on Jan. 6. At that time, “all the certificates and papers purporting to be certificates of the electoral votes” are to be presented to the Pres of the Senate. /8
This would suggest that the GOP votes from MI, NV, GA, WI, AZ, PA should be there, because they at least “purport” to be the electoral votes from those states. /9 #ElectoralCollege
Votes are to be read & challenges can be made, but 3 U.S.C. §15 states that votes “regularly given by electors whose appointment has been lawfully certified” shd be accepted. Question, of course,is what makes a vote “regularly given” or “lawfully certified”? /10 #ElectoralCollege
Main precedent on this occurred before 1887 Act. In 1872, three electoral votes for Horace Greeley were not accepted. Congress determined that Greeley was “not a person” within the meaning of the Constitution. He didn’t meet the criteria to be President. /11 #ElectoralCollege
Tangent: Greeley had passed away between Election Day and the meetings of the Electoral College. Three of his electors voted for him anyway because they believed they were bound to do so. /12 #ElectoralCollege
Now let’s assume, arguendo,that fraud happened in MI, NV, GA, WI, AZ, or PA this year. Does that make those electoral votes not “regularly given” or “lawfully certified”? It’s important to answer the question w/o regard to political party or desired outcome. /13 #ElectoralCollege
Another way to think of this: If congressmen from red states reject electoral votes on Jan. 6, this will affect future elections. Will blue states expand on the precedent? Will they decide they don’t like Texas’s election policies & challenge votes in 2024? /14 #ElectoralCollege
We are safer remembering fundamentals of #ElectoralCollege & its structure. At its heart, our pres'l election system is a decentralized process. Each state is in charge of itself. Federalism is a critical part of our system of checks & balances. We mess with it at our peril. /15
If there is fraud in MI, NV, GA, WI, AZ, or PA, then THOSE state legislators must take care of it. THEY are in charge of their own elections. They don’t get to pass the buck to Congress. It’s not Congress’s job to micromanage state presidential elections. /16 #ElectoralCollege
Some of you are probably screaming at me through your computer device right now, but please consider that we seriously do not want to give Missouri authority over Pennsylvania’s elections or California authority over Texas’s elections. /17 #ElectoralCollege
So, again, assuming there was fraud, what is the remedy? Pick up the phone & call yr state legislator in disputed states. Yr legislators are appropriate party to fix problems. If there was fraud, they can choose to back the GOP electors who voted on Monday. /18 #ElectoralCollege
In the meantime, Congressmen can reject votes under limited circumstances, in my view: (1) If there are two slates supported by state officials, they will choose one set as they did in 1876. They can’t back self-appointed electors. /19 #ElectoralCollege
(2) If electoral votes are cast for someone who doesn’t qualify to be President, per Greeley precedent. /20 #ElectoralCollege
Some are going to argue for a third category: What if the state election was conducted in violation of the Constitution? There are some obvious black/white violations, which would make this an easy decision. E.g. a state didn’t let women vote. /21 #ElectoralCollege
On the other hand, courts would presumably take care of these violations, so I’m not sure that ever really gets to Congress. Which brings me back to: It’s up to the state and the courts in a state to handle allegations of fraud. /22 #ElectoralCollege
In our presidential election system, the buck stops with state legislatures. And, of course, it’s up to voters to hold their state officials accountable. /23 & End #ElectoralCollege
You can follow @TaraRoss.
Tip: mention @twtextapp on a Twitter thread with the keyword “unroll” to get a link to it.

Latest Threads Unrolled:

By continuing to use the site, you are consenting to the use of cookies as explained in our Cookie Policy to improve your experience.