"This [scenario] also builds on what was observed in Arizona and Florida in 2018," he continued, citing real-life precedents. "The fear is that we can imagine, for example, President Trump, winning, as it were, or, at least ahead on election night in the count of votes in a pivotal state -- let's say Michigan -- and yet that lead disappearing over the next week as additional ballots get counted. And President Trump tweeting, as he did with respect to the Florida election in 2018, saying, 'No... The initial count is good. Let's stop counting ballots because we've got an accurate count.' Whereas the election officials say, 'No, these are valid ballots. They need to be counted.' And then you have a certified final result after canvassing [the official post-Election Day reconciliation of all votes cast] that puts the Democrats on top, and yet Trump is still protesting that outcome."
What happens next is a mix of disinformation and bullying that ignores the law and raises yet more demons, namely the old trope that the process is corrupt if your side loses.
"Again, this is all hypothetical," Foley said. "But what if the Michigan legislature says, 'You know what? We just don't trust late-counted ballots. And so we are going to assert our authority under the federal constitutional Article II to appoint electors directly.' So now we have this conflict between the certified result from the secretary of state that said that Biden won Michigan, but we have the legislature in Michigan saying, 'No... We don't trust that result. We are going to appoint the Republican electors.' So now, the Democrats are going to federal court invoking the same concept of due process -- 'hey, don't change the rules' -- as the Republicans cited in the scenario from Pennsylvania."
This scenario also is not merely theoretical. The battleground states of Michigan, Wisconsin, Pennsylvania and North Carolina all have Democratic governors and Republican-majority legislatures. Whether the most partisan legislative leaders would ignore vote-counting law and procedure, trash election officials and resurrect voter-fraud tropes is an open question that can only be assessed state by state.
In Wisconsin, the GOP-led legislature forced the state to hold its April primary in a pandemic to try to secure a swing vote on the state supreme court -- which backfired. Also in April, North Carolina's top-ranking Republican, Senate Majority Leader Phil Berger, slammed suggestions by the North Carolina State Board of Elections to expedite absentee voting in the pandemic, saying that the procedural reforms came from "progressive, liberal Democratic groups." Berger further said that he did not trust North Carolina Democratic Gov. Roy Cooper to oversee the 2020 election.
The Michigan scenario raised the question of whether a state legislature has the authority to override the popular vote in a presidential election. The third scenario, in Florida, where a hurricane forced the election to be canceled and it could not be rescheduled before the Electoral College met on December 14, was a variation of this question.
A Line in the Sand -- or Not?
The core issue here was whether or not legislatures could act independently -- either ignoring the popular vote result and/or bypassing their governor. Later in the discussion, the question came up of whether governors could do the same. (It turned out that the 1887 Electoral Count Act gave governors more authority than legislators.) But for now, restricting renegade legislatures seemed to be a place where scholars could draw a line in the sand, some said.
"I actually think that this may be one of the most important places to seek consensus," said Justin Levitt, Loyola Law School associate dean for research and professor. "Because of the procedural problems that other people have noted: Who do you sue? Can you enjoin [stop] anything? Is this something that Congress should decide about what to do with different slates of electors? I think if you were looking for [a] robust consensus from a group of people across partisan boundaries who study this issue to weigh in, this would be a place" particularly because the federal courts might not be ideally empowered to make that assessment."
Levitt was responding to the challenge that Foley and Huefner laid out: Was there a baseline that nationally known experts in constitutional law, election administration and presidential succession could agree on? Was it plainly unconstitutional for legislatures to independently appoint presidential electors to benefit their party?
But the legal answer was not clear. Some conservative scholars on the teleconference said that Congress should take up the issue of competing slates of electors, as it did in 1960 when Hawaii submitted three slates in the photo-finish race between Democrat John F. Kennedy and Republican Richard Nixon. They said it might even be desirable for Congress to openly debate that clash. But could there be an open debate, Foley asked, when in the joint session of Congress on January 6, 2021 (to ratify the 2020 Electoral College results), the presiding officer is the vice president, Mike Pence, a candidate seeking re-election? Some noted that Al Gore had the role after the 2000 election.
As the discussion kept going, the severity of the possible constitutional crisis and lack of clear boundaries sunk in and alarmed some participants.
"This is one of the real nightmare scenarios that could very well take place," said Norman Ornstein, a historian and resident scholar at the American Enterprise Institute. "We could easily imagine state legislatures in a number of places deciding that they didn't like the outcome of the election, and trying to shift it to Congress -- knowing or believing at that point that we might get the House and Senate disagreeing over which slates of electors to accept, and leaving it to the House of Representatives to decide who would become the president. Then leaving it in a situation where we would not have anybody getting the requisite 270 Electoral [College] votes."
If the selection of the next president ended up in the House, under the 12th Amendment each state delegation gets one vote. Currently, there are 26 delegations with a majority of Republican members, 22 with a majority of Democratic members, and two states with equal members from both parties -- Pennsylvania and Michigan. But before that eleventh-hour process would kick in, Foley said that other steps and legal interventions would likely occur. Meanwhile, could scholars draw a line much closer to Election Day, he asked, by affirming the state's official presidential election results?
"As long as independently and objectively the election officials, [and] the election administrators, are correct that the popular vote is an accurate count" [is] there a true legal answer to which certificate Congress should adopt?" Foley asked. "If that's true, then maybe the legal community can rally around that point."
"Because what I fear is if there has been political pressure that's going to cause the Michigan legislature to want to supersede the popular vote, there's going to be political pressure in Congress, for one chamber at least, to try to do that too," he continued. "Is there any point where legal intervention [can happen]? Not necessarily by a court, but by academics who can say, 'Wait a second. There's actually a right answer to this question that Congress should follow.'"
What happens next is a mix of disinformation and bullying that ignores the law and raises yet more demons, namely the old trope that the process is corrupt if your side loses.
"Again, this is all hypothetical," Foley said. "But what if the Michigan legislature says, 'You know what? We just don't trust late-counted ballots. And so we are going to assert our authority under the federal constitutional Article II to appoint electors directly.' So now we have this conflict between the certified result from the secretary of state that said that Biden won Michigan, but we have the legislature in Michigan saying, 'No... We don't trust that result. We are going to appoint the Republican electors.' So now, the Democrats are going to federal court invoking the same concept of due process -- 'hey, don't change the rules' -- as the Republicans cited in the scenario from Pennsylvania."
This scenario also is not merely theoretical. The battleground states of Michigan, Wisconsin, Pennsylvania and North Carolina all have Democratic governors and Republican-majority legislatures. Whether the most partisan legislative leaders would ignore vote-counting law and procedure, trash election officials and resurrect voter-fraud tropes is an open question that can only be assessed state by state.
The Michigan scenario raised the question of whether a state legislature has the authority to override the popular vote in a presidential election. The third scenario, in Florida, where a hurricane forced the election to be canceled and it could not be rescheduled before the Electoral College met on December 14, was a variation of this question.
A Line in the Sand -- or Not?
The core issue here was whether or not legislatures could act independently -- either ignoring the popular vote result and/or bypassing their governor. Later in the discussion, the question came up of whether governors could do the same. (It turned out that the 1887 Electoral Count Act gave governors more authority than legislators.) But for now, restricting renegade legislatures seemed to be a place where scholars could draw a line in the sand, some said.
"I actually think that this may be one of the most important places to seek consensus," said Justin Levitt, Loyola Law School associate dean for research and professor. "Because of the procedural problems that other people have noted: Who do you sue? Can you enjoin [stop] anything? Is this something that Congress should decide about what to do with different slates of electors? I think if you were looking for [a] robust consensus from a group of people across partisan boundaries who study this issue to weigh in, this would be a place" particularly because the federal courts might not be ideally empowered to make that assessment."
Levitt was responding to the challenge that Foley and Huefner laid out: Was there a baseline that nationally known experts in constitutional law, election administration and presidential succession could agree on? Was it plainly unconstitutional for legislatures to independently appoint presidential electors to benefit their party?
But the legal answer was not clear. Some conservative scholars on the teleconference said that Congress should take up the issue of competing slates of electors, as it did in 1960 when Hawaii submitted three slates in the photo-finish race between Democrat John F. Kennedy and Republican Richard Nixon. They said it might even be desirable for Congress to openly debate that clash. But could there be an open debate, Foley asked, when in the joint session of Congress on January 6, 2021 (to ratify the 2020 Electoral College results), the presiding officer is the vice president, Mike Pence, a candidate seeking re-election? Some noted that Al Gore had the role after the 2000 election.
As the discussion kept going, the severity of the possible constitutional crisis and lack of clear boundaries sunk in and alarmed some participants.
"This is one of the real nightmare scenarios that could very well take place," said Norman Ornstein, a historian and resident scholar at the American Enterprise Institute. "We could easily imagine state legislatures in a number of places deciding that they didn't like the outcome of the election, and trying to shift it to Congress -- knowing or believing at that point that we might get the House and Senate disagreeing over which slates of electors to accept, and leaving it to the House of Representatives to decide who would become the president. Then leaving it in a situation where we would not have anybody getting the requisite 270 Electoral [College] votes."
If the selection of the next president ended up in the House, under the 12th Amendment each state delegation gets one vote. Currently, there are 26 delegations with a majority of Republican members, 22 with a majority of Democratic members, and two states with equal members from both parties -- Pennsylvania and Michigan. But before that eleventh-hour process would kick in, Foley said that other steps and legal interventions would likely occur. Meanwhile, could scholars draw a line much closer to Election Day, he asked, by affirming the state's official presidential election results?
"As long as independently and objectively the election officials, [and] the election administrators, are correct that the popular vote is an accurate count" [is] there a true legal answer to which certificate Congress should adopt?" Foley asked. "If that's true, then maybe the legal community can rally around that point."
"Because what I fear is if there has been political pressure that's going to cause the Michigan legislature to want to supersede the popular vote, there's going to be political pressure in Congress, for one chamber at least, to try to do that too," he continued. "Is there any point where legal intervention [can happen]? Not necessarily by a court, but by academics who can say, 'Wait a second. There's actually a right answer to this question that Congress should follow.'"
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