Observations on the 2020 Presidential Election and the Electoral College
by Joan I. Schwarz, Attorney
Has the Electoral Count Act of 1887 been an issue in any legal actions involving Wisconsin in the last weeks since the presidential election?
After the dismissal of more than 50 lawsuits, including in Wisconsin, the Attorney General of Texas, Ken Paxton, filed a lawsuit on Dec. 7, 2020, in the United States Supreme Court (State of Texas v. Commonwealth of Pennsylvania, State of Georgia, State of Michigan, and State of Wisconsin). This lawsuit posited that while state courts can enjoin (stop) elections or even enforce unconstitutional election laws, they cannot rewrite the law in federal presidential elections, thereby arguing that the dismissals of many lawsuits in the state courts occurred because the courts did not have the jurisdiction and authority to address the constitutional issues which only the United States Supreme Court could address.
The lawsuit requested what is called “interim relief,” that is, an administrative stay and temporary restraining order (TRO) to stop the States of Georgia, Michigan and Wisconsin and the Commonwealth of Pennsylvania (referred to as Defendant-States) “from taking action to certify presidential electors without limitation from participating in the electoral college or voting for a presidential candidate.” Its rationale was that in presidential elections, “the impact of votes cast in each State is affected by the votes cast for the various candidates in other States,” and thus the citizens of Plaintiff State (Texas) have the “right to challenge multiple States’ maladministration of a presidential election” and the “right to demand that all other States abide by the Constitution.”
What is the Supreme Court’s decision on the Texas lawsuit?
Within days of the Texas lawsuit being filed, the United States Supreme Court dismissed the case, holding in an unsigned Order that Texas lacked legal standing to bring the case. It stated specifically that “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its election.”
How much support did the Texas lawsuit garner from elected officials in the country?
One hundred twenty-six House Republicans—nearly two-thirds of Congressional House Republicans, including Wisconsin congressional legislator Tom Tiffany—filed what are called Amici Curiae (“Friends of the Court”) briefs in support of the lawsuit. They argued that “as members of the federal legislature, Amici seeks to protect the constitutional role of state legislatures in establishing the manner by which presidential electors are appointed to ensure the Electoral College selects the candidate for the president of the United States that was chosen by counting only lawful votes.” Seventeen of 26 Republican state attorneys general also supported the lawsuit.
What is the significance of these government officials’ support of the Texas lawsuit?
In the words of the Attorney General of Georgia, “Respect for federalism and the constitutional design prohibit the transfer of power and the court should never reach that issue.” And indeed, the Supreme Court did not engage in this transfer of power of the federal government to state governments since to have done so would have been a violation of federalism. As aptly stated by the Attorney General of Pennsylvania, the entire lawsuit was a “seditious abuse of the judicial system.”
These are serious issues for our democratic republic. This is the first time that the “loophole” in the Electoral Count Act of 1887 (whereby a state deems its own state election to have “failed”) has been used in this way, specifically, to request that the federal government deem state elections to have “failed” and then instruct each Defendant State about how to conduct its own elections, which under federalism, is solely a state’s right. The very fact that this lawsuit was filed and that 126 states and 17 attorneys general requested the Supreme Court to referee how multiple states should conduct their governing and elections was truly an attempt to undermine the bedrock of federalism.
While the law regarding the 2020 presidential election has been settled with this United States Supreme Court’s decision, is there still doubt in some of the electorate about the legitimacy of the election?
On Dec. 11, 2020, the Joint Finance Committee held what it called a non-partisan investigative public hearing about the 2020 election held in Wisconsin. Because the majority of witnesses testified to distrusting the outcome of the presidential election, most of the Democratic legislators left midway through the hearing. Most witnesses supported President Trump’s argument that the Wisconsin Election Commission (WEC) made unauthorized changes to Wisconsin’s statutes regarding absentee voting, mail-in ballots, drop-boxes, etc., all of which led these witnesses to believe that the votes were tainted and unlawful and needed to be invalidated. Similar to the premise of the Texas lawsuit, some argued that based on the alleged unlawful votes, a new slate of electors for Wisconsin should be submitted for certification for Donald Trump.
What are the long-range implications of this discontent amongst some of the public and the litigation that has ensued since the end of the 2020 presidential election?
While the litigation about the 2020 election has reached an end point, Dec. 14 is the certification date for the submission of electoral college votes to Congress. And as a country, we still need to deal with the many Americans who do not accept the election results as legitimate as well as the many elected officials who, instead of learning from this election that most American want voting to be more accessible, have turned their attention to the next election and to what they perceive is the pressing need to codify into state statutes limitations on voting opportunities.
For example, in Georgia, state senators have pledged to eliminate no-excuse absentee voting, require a photo ID to obtain a ballot, outlaw drop boxes and scrap a court agreement to quickly tell voters about signature problems on ballots so they can be fixed. In Pennsylvania, legislators are seeking co-sponsors for bills to stiffen identification requirements for mail ballots and tighten standards for signature matching. Michigan legislators have said they want to review a 2018 ballot initiative, approved by two-thirds of the voters, that authorized no-excuse absentee balloting as well as same-day registration and straight-ticket voting. Likewise, the Wisconsin legislators who remained in the Dec. 11, 2020, public hearing about the 2020 election expressed the same pressing need to codify voting restrictions into Wisconsin statutory law.
The most important lesson for those who desire less obstruction in our elections is that eternal vigilance of our state and federal officials is required for all who demand accessible and transparent elections in our democratic republic.