Millions of people in the U.S. and worldwide breathed sighs of relief when the election call in Pennsylvania put Joe Biden and Kamala Harris over the magic number of 270 and made them President-elect and Vice President-elect. The election felt like a peaceful revolution, as if the American people had overthrown a dictator and restored democratic governance.
Yet exultation aside, the reality remains that it’s not over until it’s over, and it may not be over.
Certainly President Trump is not acting like it’s over. He vows to pursue every legal angle and calls on his Gorsuch-Kavanaugh-Barrett Supreme Court somehow to declare his reelection. One of his legal advisors put it bluntly: “We’re waiting for the United States Supreme Court—of which the President has nominated three justices—to step in and do something. And hopefully Amy Coney Barrett will come through.”
President-elect Biden rightly labels Trump’s behavior “an embarrassment, yet Republicans, with few exceptions, have either remained silent or lined up behind the President and supported his right to contest the election’s outcome. AG William Barr, breaking with venerable Justice Department traditions, is allowing federal prosecutors to investigate allegations of fraud in the voting and counting process before the election results are certified.
While it seems implausible that any of Trump’s lawsuits would provide the Supreme Court with an opportunity to declare the election result directly or even effectively, other avenues for post-election mischief remain open.
Conservative commentator Mark Levin made that apparent in an all caps tweet. “REMINDER TO THE REPUBLICAN STATE LEGISLATURES, YOU HAVE THE FINAL SAY OVER CHOOSING THE ELECTORS… YOU HAVE THE FINAL SAY—ARTICLE II OF THE FED CONSTITUTION.” Levin continued, echoing Trump’s admonition to the Proud Boys, “GET READY TO DO YOUR CONSTITUTIONAL DUTY.”
Not surprisingly, Levin’s tweet found favor in Trumpland when the President’s son, Donald Trump, Jr., retweeted it.
It now seems certain that recounts, challenges, and contests regarding the elections in several states will continue for a few weeks at least. The Trump strategy is to ensure that there is not a final determination of controversies and contests over appointment of electors as of December 8, 2020, six days before December 14, when they are due to meet and cast their votes.
At that time, as they confront the failure of Trump’s post-election litigation efforts to change the election result, Republican-controlled legislatures in Pennsylvania, Wisconsin, and Michigan and also in Georgia, Arizona, and Nevada may come under enormous pressure to heed Levin’s call. While existing law requires state legislatures to appoint electors who reflect the popular vote in their state, they might claim that there has been a so-called “election failure.”
Election failure occurs when there is uncertainty about who won after the counting and recounting are completed. While this situation has never occurred in the U.S., this year, aided by the President’s distract-and-delay strategy, legislatures may be tempted to use it as an excuse to appoint Republican electors and communicate to Congress lists of those electors.
Absent final determinations under the laws of the respective states, these appointments would not enjoy the “safe harbor” created by the 1887 Electoral Count Act (ECA) and would not be conclusive even regarding issues of state law let alone issues under federal law or the U.S Constitution.
In Bush v. Palm Beach County Canvassing Board, decided shortly before Bush v. Gore, the Supreme Court clearly stated the conditions for application of the ECA “safe harbor”: The Court specified that appointments of electors are treated as “conclusive” only if there has been a “final determination of contests or controversies by a law made prior to election day . . . made at least six days prior to said time of meeting of the electors.”
No final determination under state law by December 8, no “safe harbor.”
Republican legislatures can nonetheless submit their appointed electors to Congress and may be poised to do so. Stripped of the electoral votes of Pennsylvania, Wisconsin, Michigan, Georgia, Arizona, and Nevada, Biden’s Electoral College victory would be converted to a 306 to 232 victory for Trump.
This nightmare scenario could be the way things end, but it does not have to be. More than ever, it appears vital that Democrats submit their own lists in each state where legislatures appoint Republican electors. Democratic governors of Pennsylvania, Wisconsin, Michigan, and Nevada will need to certify the Democrats’ lists even if the Republican governors of Georgia and Arizona bow to their state legislatures and certify Republican lists.
If the two Houses disagree on which electoral votes to count, as might happen with Republicans in control of the new Senate at least on January 6, the ECA makes plain that the votes of the electors certified by the respective governors are the ones to be counted. The ECA may be unclear in some respects, but it is clear on this point: “If the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.”
We deeply hope that state legislatures will not follow Mark Levin and Donald Trump, Jr.’s advice and appoint Republican electors in defiance of the expressed preferences of their citizens. But if they do, the fate of American democracy, and Joe Biden’s election, will depend on the willingness of Democratic governors to fight fiercely.
They must defend the integrity of their states’ election results, insist that there have been no “election failures,” and, if necessary, submit to Congress their own elector lists.
