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With Senate support, Congress will now vote under the procedures laid down Electoral Count Act of 1887 as to whether to accept the election returns made by the Electors of each state. [thread starts] https://twitter.com/HawleyMO/status/1344307458085412867
The objections by Sen. Josh Hawley are two separate issues. One is that states violated their own election laws. This point has been litigated in state courts (state courts being the usual forum for overseeing state law), and Federal Courts have declined to review it. [2]
In addition, no state legislature and no state executive has upheld such an objection. This makes it rather difficult for Congress to supplement its own judgement and recognize alternative (that is, the losing) sets of electors from a state. [3]
Another difficulty is that all of the disputed states met the 'safe harbour' deadline to certify their returns, which means that under the terms of the 1887 Act, Congress should regard these determinations as final. [4]
However, even before the 1887 Act, Congress did exercise some determination over whether votes were valid - often the procedure was to require the concurrence of both Houses. In this case a determination would come down to a rather difficult point: [5]
do both houses have to agree to throw a state's votes out, or do both houses have to agree in order to approve a slate of electors? If votes were along party lines, and Republicans control the Senate, Trump would win in one scenario and not the other. [6]
Under the terms of the 1887 Act, to disregard a vote of the states, the two houses would have to agree. In any other case, the votes certified under the seal of the executive of the state in question will be counted. [7]
That said, it should be noted that the lawsuit by Rep. Louis Gohmert (see separate thread) argues that this whole business is illegal -- and that the Constitution imagines any disputes should be settled by Vice President acting alone. [8]
As I said a couple of days ago, this is mostly an argument from silence - the text of the Constitution anticipates a scenario where no candidate has reached a majority of votes (in which case the House would vote by state delegation - Republicans would win), [9]
but it does not anticipate in any explicit way disputed electors. Unless both houses agree to throw out votes, it won't happen, unless this new theory is accepted. So much for the law, but there is another side to all of this. [10]
The second aspect of the complaint by the Senator is the influence of Social Media companies on the election. This is less about the law than it is about an attack on corporate speech. This complaint is quite different from the idea that states have broken their laws,
and is instead a complaint about the undue influence of powerful corporations who have exercised a wrongful influence on American public discourse. Aside from regulation about the use of the radio broadcast spectrum, America has generally avoided regulating speech --
and the Regulation of corporate speech is even more difficult in the wake of the Citizens United v. FEC decision. The Supreme Court has held that the First Amendment protects corporate as well as individual political speech, especially in election contexts.
This aspect of the complaint will get less attention than the rest, but is related to Trump's complaint that tech companies are protected from liability for what their users publish under 'Section 230' of the Communications Decency Act.
The theory here, I suppose, is that without that section, Trump might have sued internet companies for stories posted about him on the Internet. I am not completely convinced that repeal of that section would have affected the election - that knife cuts both ways. [ends]
