If Chaos is a Ladder, America's Election Laws are an Elevator

Americans Don't Play by the Rules as Written and the Rules as Written Don't Make Any Sense

The Monday after the second Wednesday in December of presidential election years is set as the date on which the presidential electors meet and vote. In 2020, that meeting is on December 14.

On that day, electoral college delegations will meet separately in their respective states at their state capitols to cast their ballots for President and Vice President. The electors will then count the results and sign six certificates, known as Certificates of the Vote. Their Certificates of the Vote will then be paired with the Certificates of Ascertainment provided by the state governors. Then the packages will then be signed, sealed, and sent by registered mail to the President of the U.S. Senate (the Vice President). It’s clear, straightforward, black-letter law.

But what happens if the rules aren’t quite followed? What if the electors weren’t properly appointed, don’t meet on the right day, don’t have a certificate from the governor, and forget to sign their names?

Americans Don’t Play By the Rules as Written…

In the last 250 years, there have been incredible irregularities in how the electors were appointed and how they cast their ballot. Specific accounts include:

• The Georgia Incident of 1800, where the electors from Georgia failed to send a Certificate of the Vote and instead just signed their names to the back of the governor’s Certificate of Ascertainment without stating exactly how they cast their vote. Nevertheless, all the George elector votes were counted.

• The Massachusetts Incident of 1809, where the appointment of Massachusetts electors was disputed as “irregular and unconstitutional.” Nevertheless, all Massachusetts elector votes were counted.

• The Indian Incident of 1817, where the Indiana electors were elected before Indiana joined the Union! Nevertheless, the votes of Indiana’s three electors were counted.

• The Missouri Incident of 1821, where Missouri sent electors even though Missouri was not a state of the Union! Nevertheless, the Missouri electoral votes were counted.

• The Postmaster Incident of 1837, where the CN, NH, and NC electors were officers of the federal government in violation of the Constitutional prohibition against that. Nevertheless, all those electoral votes were counted.

• The Michigan Incident of 1837, where Michigan sent electors even though Michigan wasn’t a state of the Union! Nevertheless, the Michigan electoral votes were counted.

• The Wisconsin Incident of 1857, where the entire House and Senate disputed the electoral votes of Wisconsin because the electors didn’t cast their votes on the proper day. The President of the Senate counted Wisconsin’s electoral votes anyway, over the objections of both Representatives and Senators! “Almost every Member of Congress who spoke on the subject agreed that the votes of Wisconsin should not have been counted.” Nevertheless, the votes were counted.

• The Mississippi Incident of 1873, where the Mississippi electors did not certify that they voted by ballot, and one of the electors didn’t have his appointment signed by the Governor of Mississippi as required by state law. Nevertheless, the Mississippi electoral votes were counted.

• The Georgia Incident of 1873, where one of the Georgia electors failed to follow the constitutional requirement that he vote for at least one person who wasn’t a resident of his own state. Nevertheless, the Georgia electoral votes were counted.

• The Texas Incident of 1873, where the executive authority of Texas had failed to certify its electors were properly appointed; four electors who had been appointed were absent and replaced by other electors appointed by some of the remaining electors, without even a majority vote. Nevertheless, the Texas electoral votes were counted.

Did you spot the pattern? In each of the ten cases listed above, the presidential electors cast ballots that broke the rules. And in every case, the votes were counted. In America, presidential electors get their votes counted even when they…

• didn’t even send a certificate of the vote! (GA in 1800)

• represented territories that weren’t even states! (IN in 1817, MO in 1821, MI in 1837)

• weren’t certified as properly appointed by their state governor! (TX and MS in 1873)

• didn’t cast their votes on the prescribed day! (WI in 1857)

• didn’t certify that they voted by ballot! (MS in 1873)

• were officers of the federal government (CN, NH, and NC in 1837)

• were replacements for missing electors arbitrarily appointed by the remaining electors without even a majority vote! (TX in 1873)

• didn’t follow the requirement to vote for one person not resident of their own state! (GA in 1873)

So, with that history of hijinks laid out, let’s imagine a hypothetical.

Imagine that Georgia’s 16 Republican presidential electors decide to gather in Atlanta on December 14th to cast their vote for Trump. However, only half show up, the others backing out due to concerns of safety or refusal to act against the popular vote. The remaining 8 electors just pick 8 more trusty Trump Republicans to replace the missing electors (as happened in Texas in 1873). That takes an extra day, so they end up voting one day late (as happened in Wisconsin in 1857). They don’t have a certificate from their state governor, so they send their vote without it (as happened in Texas and Mississippi in 1873). And off it goes to the President of the Senate.

Let’s assume this happens in some other states, too, such that it’s enough to change the outcome of the election if these votes are counted.

Now what? History, as we have shown, has a clear answer: Ten out of ten times, when electors broke the rules, the votes were still counted no matter how irregular they were. Always, every time. The rules didn’t matter.

And Sometimes We Don’t Even Know What the Rules Are!

Our hypothetical is, of course, failing to mention a really important factor. While our roguish Republican electors are casting their ballot, the staid and certified Democrat electors are also meeting to cast their ballot. At the end of the day, two certificates get sent to the President of the Senate from Georgia.

Now it’s January 6. The Senate and House of Representatives have assembled in a joint session at the Capitol, in the House chamber. The Vice President, Mike Pence, is presiding as President of the Senate. The Twelfth Amendment states: " [T]he President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.”

So Pence is to open all the certificates. But… there’s two from Georgia!

As soon as Georgia’s certificates are presented, the Democrats immediately clamor that the votes from the Republican electors have to be rejected - the Republican electors broke the rules. They weren’t lawfully appointed, they didn’t have signed certificates from the governor, and they voted on the wrong day.

But, as we’ve just seen, none of that has ever stopped electoral votes from being counted. Irregularities have been permitted many, many times in history. The Republicans have ample precedent to support that.

So what happens? No one knows.

I’m not exaggerating. Really, no one knows. The rules for properly counting electoral votes are so ambiguous, they make the original “white box” rules for Dungeons & Dragons look like Ikea instructions.

Let’s explore a few possibilities

Maybe the President of the Senate Makes the Choice…

There is a very strong Constitutional theory that the power to open and count the votes of the presidential electors is vested exclusively in the President of the Senate. The President of the Senate is actually the Vice President of the United States - Trump’s running mate, Mike Pence. 

Therefore, if this theory is true, Mike Pence can simply open the Republican certificates and toss the Democrat certificates into the trash. The Democrats could howl and shout and gnash their teeth, but they cannot count votes that Pence doesn’t open.

I have laid out the legal arguments and historical precedent for Pence’s power in my earlier article, so I wont repeat them here. Suffice to say, if opening and counting the votes of the presidential electors is like playing white box D&D, then Mike Pence is the designated dungeonmaster. And nobody gets to argue with the DM.

Or Maybe the Electoral Count Act Determines What Happens?

Since the Constitution was a bit vague on whether the President of the Senate actually had total Dungeonmaster-like authority over the election, Congress decided to “clarify” the rules with the 1887 Electoral Count Act. I say “clarify” in scare quotes because it is the worst written legislation in the history of mankind.

The key clause, 3 USC 15: Counting Electoral Votes in Congress, consists of a single 809-word paragraph whose most important sentence is itself 275 words long. Click here to read it. Finished? If it made no sense to you, don’t feel bad. It doesn’t make sense to anyone. More than 130 years after it’s written, legal experts still don’t agree on what, exactly, 3 USC 15 is telling us.

Let’s start with the role of the President of the Senate. The law states that “the President of the Senate shall be their presiding officer. Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States.”

Now that’s interesting - the Electoral Count Act is making an allowance for the fact that the President of the Senate might open purported certificates. It then specifies rules for acting on those purported certificates (which we’ll get into). But what happens if the President of the Senate doesn’t even open a certificate? What if Pence just says, “this envelope is fraudulent and I’m not going to deign to open it,” and just tosses the Democrat’s certificate in a nearby trashcan? Well, the Act doesn’t say - it says that the Congress shall act upon the certificates opened by the President of the Senate that purport to be certificates. Boom, we’re back to the problem above… Awkward.

Let’s assume that Mike Pence is warned by Democratic thugs that if he refuses to open all the certificates, he will be forced to dine alone with AOC. Horrified by this threat, a cowed Vice President opens both the Democrat and Republican certificates. Now what happens?

There’s three situations that could occur…

Situation #1. If more than one certificate of votes is opened, but only one is compliant with the so-called “safe harbor,” then the safe harbor return must be counted as the true return, assuming the votes have been "regularly given" by the electors. (Note: The “safe harbor” is defined in 3 USC 5, and says that “if final determination of any controversy concerning the appointment of all or any of the electors of such State… shall have been made at least six days before the time fixed for the meeting of the electors… such determination made pursuant to such law so existing on said day… such determination… shall be conclusive. This is why December 8 was the “safe harbor” for the December 14 elections.)

Situation #2. If two or more certificates of votes from a state can both claim the “safe harbor,” then none of the certificates get counted unless both the House and Senate agree to count them.

Situation #3. If there are multiple certificates of votes from a state and none can claim the “safe harbor,” then none of the certificates get counted unless both the House and Senate agree to count one of them.

That seems clear. Unfortunately, the very next sentence states "But if the two Houses shall disagree in respect of the counting of such votes, then the votes of the electors whose appointment has been certified by the executive of the state, under the seal thereof, shall be counted."

This is known as the “governor’s tiebreaker.” Because it comes at the end of an 807-word paragraph with a 275-word sentence, no one really knows whether the governor’s tiebreaker is supposed to apply just to situation #3, or to situation #1 and situation #2 as well. The grammar is simply… ambiguous. One leading law professor, Stephen A. Siegel, claims it applies to all three situations. But Jack Maskell, the respected author of the Congressional Research Service report on the law, claims it only applies to the third situation. No Court has ever ruled on it. We literally don’t know.

And even if we did know, that wouldn’t begin to address the problems facing the Vice President, House, and Senate. What if there is disagreement as to what situation they are even in?

Imagine this hypothetical: Vice President Pence has opened two certificates from Georgia. One has arrived from the Democrats with a clean governor’s certificate and one has arrived from the Republican electors with a few… irregularities. The Democrats in the House claim that since Georgia’s Democratic electoral votes comply with the safe harbor and the Republican electoral votes do not, the must award the votes to Biden. However, Vice President Pence and the Senate Republicans claim that Georgia’s Democratic electors don’t qualify for the safe harbor because their votes weren’t “regularly given” (due to fraud) and that they weren’t cast according to “law so existing on said day” (because the state elections didn’t follow the state law as written by the legislature).

The House votes for Georgia’s Biden votes, the Senate votes for Georgia’s Trump votes, and since they don’t agree, the results get thrown out. If that happens in a few states, nobody will have enough votes in the Electoral College to win, and it’ll get decided by a vote in Congress with one vote per state. If that happens, the Republicans win.

To prevent that from happening, the Democrats invoke the governor’s tiebreaker! They say, “since we disagree, the governor’s tiebreaker awards it to Georgia.” We’re in situation #3, so this seems to be conclusive. The Democrats cheer. Biden 2020!

Undeterred, the Senate plays its trump card (so as to speak). Cocaine Mitch rises, turtle-like, and declares the Electoral Count Act itself is unconstitutional and inapplicable.

Wait, what?

Yes, the Electoral Count Act Might Be Unconstitutional…

As it turns out, there’s a very strong argument that 3 USC 15 is unconstitutional. Invalid. Nonbinding. Not worth the hours you just spent trying to understand it.

Law professor Vasan Kesavan has done the most thorough investigation of the Electoral Count Act yet made. In his seminal law review paper, Kesavan concludes:

The structural argument reveals that the Electoral Count Act is unconstitutional… As a prima facie matter, the Electoral Count Act, to the extent that it is a law that has legal force, clearly violates the anti-binding principle of rule-making. This is perhaps the strongest structural argument against the constitutionality of the Electoral Count Act. In addition, the Electoral Count Act is also unconstitutional in its potential operation in counting electoral votes. The bicameral procedure of 3 U.S.C. § 15 violates the anti-Senate principle of presidential election, the Chadha principle of law-making, and the anti-President principle of presidential election. Finally, to the extent that the joint convention rejects electoral votes contained in authentic electoral certificates as not "regularly given,'" the Electoral Count Act violates the anti-Congress principle of presidential election, the pro-states and pro-state legislatures principle of presidential election, and the pro-electors principle of presidential election.

It took Kasavan 124 pages to make his case, so I refer you to his article for a fuller explanation. It’s very persuasive.

In Which Case the Presidential Succession Act Applies…

So what happens if the Electoral Count Act doesn’t apply, and the House and Senate can’t even agree to disagree enough to have the situation resolved by a vote of the House and Senate?

Kasavan concludes that if things go really crazy, then the Twentieth Amendment will take over. The Twentieth Amendment states:

Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified

Congress did, in fact, provide by law for this case. The law is the 1947 Presidential Succession Act, and it sets the line of succession for the President as Vice President, Speaker of the House, President Pro Tempore of the Senate, and then Secretary of State.

So if Congress can’t settle on Trump or Biden, it goes to Pence. But if the election is disputed long enough to matter Vice President Pence’s term will have expired along with Trump’s term. Then the President would be Nancy Pelosi.

Unexpected, to say the least. But at last we have closure. A definitive answer as to who will lead our country if all else fails. Right?

Well, actually…

Except that Act Might Be Unconstitutional Too…Maybe

During a September 2003 joint hearing Before the U.S. Senate's Committee on Rules and Administration and Committee on the Judiciary, M. Miller Baker said:

The 1947 Act is probably unconstitutional because it appears that the Speaker of the House and the President pro tempore of the Senate are not "Officers" eligible to act as President within the meaning of the Succession Clause. This is because in referring to an "Officer", the Succession Clause, taken in its context in Section 1 of Article II, probably refers to an "Officer of the United States", a term of art under the Constitution, rather than any officer, which would include legislative and state officers referred to in the Constitution (e.g., the reference to state militia officers found in Article I, Section 8). In the very next section of Article II, the President is empowered to "require the Opinion, in writing, of the principal Officer in each of the executive Departments" and to appoint, by and with the advice and consent of the Senate, "Officers of the United States". These are the "Officers" to whom the Succession Clause probably refers. This contextual reading is confirmed by Madison's notes from the Constitutional Convention, which reveal that the Convention's Committee of Style, which had no authority to make substantive changes, substituted "Officer" in the Succession Clause in place of "Officer of the United States", probably because the Committee considered the full phrase redundant.

This line of reasoning has been thoroughly explored in a Stanford law review article entitled “Is the Presidential Succession Law Constitutional,” which reaches the same conclusion.

So if the presidential line of succession is unconstitutional, what does that mean? Do we just skip the Speaker of the House and President pro tempore of the Senate and proceed to the Secretary of State? Does the Supreme Court decide? Does the Supreme Court send it back to Congress? But what if Congress can’t agree? We could easily end up in a situation where Speaker Nancy Pelosi and Secretary of State Mike Pompeo both claim to be the President!

Hopefully That’s Cleared It All Up For You

Our long and winding review of the situation has led us to the conclusion that the outcome of the 2020 Presidential election could be:

1. Biden, if Vice President Pence opens all the certificates, there is only one per state, and they are treated as within the safe harbors without objection;

2. Trump, if there are multiple certificates per state, and Vice President Pence unilaterally exercises his count-and-open authority to give preference to Republican certificates;

3. Biden, if there are multiple certificates per state, Vice President Pence opens all the certificates, and the governor’s tiebreak applies because some are certified;

4. Trump, if there are multiple certificates per state, Vice President Pence opens all the certificates, the governor’s tiebreak doesn’t apply, and the dispute ends up getting voted on by Congress by state;

5. Pelosi, if the Vice President, House, and Senate end up in dispute from the above, and it doesn’t get settled by January 20;

6. Pompeo, if the Vice President, House, and Senate end up in dispute from the above, and it doesn’t get settled by January 20, and the Presidential Succession Act is deemed unconstitutional; or

7. Anyone else… I haven’t even exhausted all the possibilities.

Now, obviously, the most ordinary course of events is simply #1. Only the certified electors send certificates, Vice President Pence opens those certificates, no one objects, and that’s that. This has happened in 75% of our Presidential elections.

But 75% is not 100%. The possibility remains that this one will be different. Even as we speak, electors may be gathering in Atlanta, Harrisburg, or other disputed states to cast rival slates of votes.

If so, then we’re all going to take an elevator ride to chaos, and no one knows what will happen next.

UPDATE (1/3/2021): This morning “President Pelosi” is trending on Twitter - suggesting that the digital intelligentsia is suddenly waking up to the chaos I projected here several weeks ago. President Pelosi is scenario #5 in my 7 scenarios. No one (except me) seems to have figured out that if Trump is willing to escalate to the point where Pelosi could be sworn in, he will certainly be willing to escalate to a claim that the Presidential Succession Act is unconstitutional, and bring us to scenario #6.

Further Reading

I recommend the following for further reading to every American who wants to understand and prepare for what may come:

• Bruce Ackerman, “Jefferson Counts Himself into the Presidency,” 90 V. L. Rev. 2004

• Akhil Amar and Vikram Amar, “Is the Presidential Succession Law Constitutional,” 48 Stanford L. Rev., 1995

• Edward B. Foley, “Preparing for  a Disputed Presidential Election,” 51 Loyola University Chicago Law Journal 2018

• John Harrison, “Nobody for President,” 16 J.L. & Pol., 2000

• Vasan Kesavan, “Is the Electoral Count Act Unconstitutional?” 80 NC L. Rev. 2001

• Stephan A. Siegel, “The Conscientious Congressman’s Guide to the Electoral Count Act of 1887,” 56 Fl. L. Rev. 2004

• Jade Jia Ying Wu , “Learn to Speak Mandarin: A Beginner's Guide to Mastering Conversational Mandarin Chinese”