Concerns Related to the Electoral College
Rare individuals—perhaps those who dutifully practice mindfulness—may have successfully weathered the litany of anxiety-generating happenings of late. For sure one such individual is not a recently retired lawyer versed in equal rights/citizens’ rights/individual and civil liberties/ administrative justice/redistricting/campaign finance, our own Joan Schwartz. Joan for sure has nerves of steel and believes information is power for those who lean left, right or like many, hover somewhere near the center of America’s polar political ideology. Taking pen in hand (metaphorically), Joan brings us up to speed this week on the latest rumblings concerning the Electoral College. Really, what could go wrong? Breathe in—count to four—breathe out—inhale—cuenta hasta cuatro—exhale!
Concerns Related to the Electoral College
by Joan I. Schwarz, Attorney
Article II of the Constitution provides that each state “shall appoint” its slate of electors “in such Manner as the Legislature thereof may direct.” The Electoral Count Act of 1887 provides that each state selects its slate of electors. However, Section 2 of this Act provides that “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.” While this section is generally considered to be a narrow exception to the usual procedure for the selection of a slate of electors from a state, the possibility of a legislature’s selecting loyal electors in the face of election uncertainty does exist. The expected delays in vote counting in the November 3 election—because of late-arriving absentee ballots, because of disputes over which of those ballots are valid, because of overwhelmed state election systems, because of recounts, or because of X factors such as direct election interference by foreign or domestic attacks—could mean that there are not clear results in every state by the deadline of December 8 (known as the “safe harbor date”). At this time, state legislatures could decide on their own slate of electors rather than one based on the decision of its voters. This could present Congress with conflicting slates of electors.
A state legislature sending a slate of electors is constitutional, but it raises significant concerns. Competing slates of electors can occur in states where one party controls both the legislature and the governorship as well as in states where the legislature is comprised of one party and the governor of another party. Either way, the Electoral Count Act has no method for Congress to resolve between the slates. Extensive legal battles would then be the forum for deciding the next President.
Competing slates of electors have occurred in the past and can happen again. Find an extended discussion of this possibility with regard to the November 3 presidential election here.
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