1) User’s Manual to how electoral votes can be disputed tomorrow – and why Cruz’s electoral commission gambit would die in the Senate anyway

2) A couple of things about the Electoral Count Act of 1887 which, alongside the 12th Amendment to the Constitution, governs tomorrow’s certification of the Electoral College.

3) Also, the Electoral Commission which Congress set up in 1877 to deal with the disputed election between President Rutherford B. Hayes and Samuel Tilden.

4) Sen. Ted Cruz (R-TX) and others are calling for an “Electoral Commission” ala 1877. The problem in the Hayes/Tilden race is that Florida, Louisiana and South Carolina had uncertified electoral votes. In 2020, the electoral votes from all 50 states have been certified.

5) And, even if there were an “Electoral Commission” to adjudicate 2020, Congress would have to pass a concurrent resolution to set up such a panel. And guess what? It would be subject to a filibuster and 60 votes.

So….that dog probably won’t hunt.

6) Also, according to the Electoral Count Act, Congress is supposed to interpret the electoral votes sent from states as conclusive. However, if there is a dispute about a state having multiple slates of electors, Congress is supposed to go with the one signed by the governor.

7) This was a problem at the Joint Session of Congress in January, 1961 as Hawaii sent two electoral certificates to Washington – BOTH signed by the governor.

8) One for President John F. Kennedy, who won the election. The other for President Richard Nixon, who became President in 1969 but lost to Kennedy then. Nixon was then Vice President and presided over the Joint Session.

9) Scholars who have studied the Hawaii case argue that Nixon probably should have accepted the slate of electors sent to Capitol Hill for himself. But Nixon, perhaps magnanimously, awarded the Hawaii’s three electoral votes to Kennedy.

10) However, it didn’t matter. Hawaii wasn’t a determinative state in the 1960 election.

Also, per the Electoral Count Act, there are two conditions under which lawmakers may raise issues about electoral votes.

11) The first is a question as to whether the electoral votes were properly certified. Under that objection, the possibility exists that the SIZE of the Electoral College shrinks if a state’s electoral votes are tossed out.

12) Let’s say hypothetically that the House and Senate vote to reject Nevada. Well, the actual electoral pie goes from 538 to 532. Nevada’s 6 electoral votes disappear into the ether. Rather than needing 270 electoral votes, the successful candidate now needs 266 electoral votes

13) The second condition for an objection to a state’s slate of electors is the allegation, per the Electoral Count Act, that the electoral votes weren’t “regularly given.” This starts to get tricky because this presents an unsettled legal and Constitutional question.

14) If an elector is deemed to be have been given “irregularly,” does the size of the Electoral College shrink? Scholars disagree on this. If the elector in question is “irregular,” why not just present another “regular” elector to fulfill the scope of the Electoral College?

15) It is unclear what the consequences could be under these conditions.

16) Finally, a fun footnote from the disputed 1876 Hayes/Tilden tilt.

Colorado became a state shortly before the election of 1876. So no citizens in Colorado actually cast ballots for President that year.

17) The state didn’t have the wherewithal nor the infrastructure to conduct an election. But, Colorado was a state. So the state legislature, without any blessing from the voters, sent three electoral votes for Rutherford B Hayes.

18) Remember that the Electoral Commission selected Hayes as President. Hayes won the Electoral College, 185-184.

Had Colorado not yet been a state, we’d be talking about President Tilden and not President Hayes.