Electing a US President: 3 Things to Remember While the Chips Fall

The possibility of a contested presidential election result this year makes it even more important to understand our process for electing a President of the United States. Add threats of widespread violence and long-standing assertions by both sides that the other side is planning and executing skulduggery. Mix in a predictable avalanche of reporting and commentary, little of which will be objective. I’m betting you’ll want to remember three things — and two of them are dates.

Knowing these things will at least provide some benchmarks for judging how much trouble we’re in, if any, and whether the unfolding process is legitimate.

1. The States Elect the President

It may feel like we’re electing a president today, but it’s the states that elect the president. Our votes merely tell our respective states how to vote.

In the Constitutional Convention of 1787, there was little affection for a popularly elected national chief executive. They flirted with Congress electing the president; that would be a parliamentary system, more or less. But in their fervent desire to divide power as much as possible, to impede possible tyranny by a strong national government, they didn’t want the legislative branch choosing the leader of the executive branch. Hence the Electoral College, which itself nods toward the large state/small state compromise which got us a bicameral Congress. The number of each state’s electors is the number of its representatives in Congress plus its senators (which is always two). Washington, DC, also gets three electoral votes. US territories get none.

Article II, Section 1 of the Constitution says, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”

Here’s the key: each state’s legislature gets to decide how its state’s electors are chosen. As it happens, every state has chosen a popular election. In 48 states the winner of that state’s popular vote gets the electors. In Maine and Nebraska, the statewide winner gets two of the state’s electoral votes, and the winner within each congressional district gets one.

(Among proposed reforms to our system to align the electoral vote more closely with the will of the people, the Maine/Nebraska approach makes sense to me.)

2. Big Deadline: December 8

Title III, Chapter 1, Section 7 of the US Code establishes the Monday after the second Wednesday in December as the date on which each state’s electors meet to cast their ballots at a place designated by their respective state legislatures. This year, that’s December 14. Six days before that is a crucial date, the so-called “Safe Harbor” deadline, which is established by Section 5 of the same statute. Here’s how that works.

If election results are contested in a state, and if that state’s legislature — prior to the election — has enacted a process to resolve such contests, and if that process has been followed and completed and the result is conclusive by that date — in 2020 that’s Tuesday, December 8 — then the state’s electors can be counted. (There’s a process in Section 6 by which the governor of a contested state formally reports how the result was determined.)

What if the election is such a mess in a given state that state officials cannot determine the outcome of the vote by December 8? I don’t know each state’s laws, but it would satisfy the US Constitution for there to be a fallback position, where the state legislature chooses the state’s electors. The Florida legislature was prepared to do this in 2000, if the dispute over the vote was ongoing, but it was resolved just in time.

If a state legislature has to act that way, at least the state still participates in the election. I’ve found no statute on that subject in Utah; I don’t know about other states. I’m not sure this would have to be settled in advance, since the US Constitution already gives state legislatures sole authority to determine how electors are chosen. Maybe we’ll find out soon.

If the state cannot or does not appoint electors in time, it will be unrepresented in the Electoral College. This changes the majority required to elect a president and vice president. In this respect the key word in the 12th Amendment (which altered the operation of the Electoral College) is “appointed”: “The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed” (my emphasis).

In essence, if one or more states fail to run a presidential election competently or cannot manage the aftermath of such a failure, the states who were able to produce results get to choose the president and vice president.

Electors nearly always vote as expected; occasionally there’s a “faithless” elector. In some states, there’s a legal requirement for electors to vote with the state’s popular vote. For example, according to a new (2020) law in Utah, an elector is considered to have resigned immediately upon attempting to cast a different vote, and is immediately replaced by another elector from the same party. (There’s an exception for the death or felony conviction of a candidate.)

Granted, I am not a constitutional lawyer or any other kind of lawyer, and a lot of this is untested, but that’s how things read to me.

Once, in 1789, in the first presidental election, a state failed to appoint electors. It was New York — but the outcome didn’t change. The other states’ electors were unanimously for George Washington.

There are legal provisions in the US Code for obtaining a state’s certifications of electors, if federal authorities don’t receive them on time. But I see no provision for electoral votes being cast and certified in a states after the appointed time (this year, December 14), and no wiggle room in the statute which would allow a state to resolve problems later than December 8 (in this case). If the election’s a mess in any state, that state has until December 8 to resolve it, according to its own laws which were in place before the election and within the bounds of the US Constitution.

In January the US House of Representatives and US Senate can challenge one or more electors from any state (see below). But they can’t appoint replacement electors.

3. January 6

On January 3 the newly elected House members and Senators take office. Three days later, the House and Senate assemble at 1:00 p.m. at the Capitol, in a joint session, always in the House Chamber, to count electoral votes and declare results.

The sitting Vice President — who could be a presidential candidate, as George H. W. Bush and Al Gore were in 1988 and 2000, respectively — opens the certifications from the states and presents them to two “tellers” from each chamber (House and Senate). These four tellers read the certifications and announce and tally the vote.

As the tellers announce each state’s electoral votes in the joint session, members may submit objections. A valid objection must be in writing and must come from at least one member of each house.

If there is a valid objection, the joint session recesses, and the House and Senate convene separately for up to two hours to consider the objection and vote on it. If a majority of both houses votes to approve the objection, the challenged electoral vote or votes are excluded. According to the US Code, objections to one state’s electors must be handled before the next state’s electoral votes can be counted. So this process could take days, if there are numerous separate challenges. For the first five days a recess is permitted until the next morning; if the process is not completed after that, no further recess is permitted (Sundays excepted).

Bear in mind that a states’ electors are presumed valid; only a majority vote of both houses, in response to a valid challenge, can disqualify them. If the two houses disagree, the challenged electoral votes count.

When all the electoral votes have been tallied and any objections handled, if candidates for president and vice president have a majority of votes, the Vice President announces the results.

No Result?

If no candidate for president has a majority of electoral votes, the Constitution requires the House to go immediately into session to select a president. In this case, each state’s delegation has a single vote; the members from a given state vote to determine their state’s vote. If only one member of a state’s delegation is present, that counts toward the required quorum of two-thirds of the states.

In 1800, when Thomas Jefferson and Aaron Burr tied in the Electoral College, the House took 36 votes to pick a winner. In 1824, when four candidates from the same party won electoral votes, the House took the top three finishers (per the Constitution) and voted on them. Andrew Jackson had won the popular vote and had more electoral votes (though not a majority), but lost to John Quincy Adams in the House. In 1876 Samuel Tilden came up one electoral vote short of a majority, and a complex compromise ended up electing Rutherford B. Hayes instead. (That adventure and its aftermath are a story for another day.)

If no candidate for vice president has a majority of electoral votes, the Senate chooses between the two candidates with the most electoral votes for vice president. Senators vote individually, not by state delegations.

If the House fails to choose a president in time for the January 20 inauguration, but the Senate chooses a vice president, the chosen vice president, the next in succession, becomes the president. If neither is chosen, the Speaker of the House is next in succession, if constitutionally eligible — but this would be the Speaker of the newly elected House, not of the House as constituted before the election.

(Elections for House and Senate are not so intricate; these are purely popular votes. But the House and Senate can, by vote, refuse to seat their respective members. Between 1869 and 1900, the House rejected more than 30 Southern Democrats, because of fraud, violence, or intimidation against black voters in those states, or because their states’ voting laws were unconstitutional. In 1898 B. H. Roberts from Utah was denied a House seat because he was a polygamist. In 1902 Reed Smoot, also from Utah, faced a similar but more complex situation upon his election to the US Senate; he was seated after a four-year investigation. There are numerous other examples, one as recent as 2009.)

What Is a Legitimate Result?

Each state has different laws and rules for conducting its presidential election. For example, in Utah mail-in ballots have to be postmarked no later than the day before Election Day, but then they have a couple of weeks to arrive and be processed. I’ve seen close results in other races change in the second week after the election. In some other states, mailed ballots have to be received no later than Election Day.

In considering a presidential election’s legitimacy, I begin at the state level. Did each state conduct its election in accordance with its own laws (as they existed before the election), and within the bounds set by the US Constitution? This includes meeting the December 8 deadline.

Are the state’s electors appointed as indicated by that result? Do they cast their votes as electors in a manner consistent with applicable state laws?

Are the electoral votes accurately and properly conveyed — on time — to the relevant federal officials, including the Vice President, who as President of the Senate presides over the joint session on January 6?

Does the process of counting the electoral votes and certifying the winners happen according to law — including timing, handling objections, etc.?

If all of this happens, regardless of the winner, and regardless of any political wrangling in what is inherently a political process anyway, then to me the result is legitimate. The new president is legitimate.

Likewise, if no presidential candidate has a majority of electoral votes, but the House proceeds according to the Constitution and other federal law, the product is a legitimate president — whoever he or she turns out to be.

If there are major problems in a state, but things proceed properly at the national level — even if a state is so screwed up that it doesn’t send electors — then the result is legitimate. But that state’s voters should get serious about setting their state in order.

There’s a tendency on both sides to claim that anything we didn’t win was either stolen or otherwise illegitimate; we’ve heard that more from one side than the other in recent years. We’ll hear it for the next four years.

There are complaints when the Electoral College winner doesn’t win the popular vote, that the result is illegitimate. I disagree. Football scores aren’t illegitimate if the losing team (with fewer points) has more yards of total offense. In electing a president, the popular vote is just a statistic. The electoral vote is the score.

The comparison of the electoral vote to the popular vote is shaky in any case. In a given election it’s uncertain whether the popular vote majority would have gone to the same candidate, if the election were a pure popular vote. Campaigns would have been different. Voter behavior would have been different. Candidates might have been different. So the popular vote might have been different.

Watch for These Danger Signals

Judges rewriting election law. I get very nervous when judges start rewriting election laws after the fact — as the US Supreme Court prevented the Florida Supreme Court from doing in 2000. This tells us what to watch for in court challenges, both recent and imminent: attempts to change existing state law.

Reporters and the commenting class usually wring their hands over a decision’s effect on the election result, not over whether a decision honors the law. We’d best ignore rhetoric about including or excluding voters in these cases. Look to see whether a court is upholding law established by the relevant legislative bodies or making its own law.

I worry a lot more when we see judges declaring that mail-in ballots don’t have to be postmarked by Election Day (or whatever day is appointed before that by the state; the previous day, in Utah’s case), or that ballots which arrive late don’t have to be postmarked to be counted, or may be postmarked late. These situations invite targeted fraud.

In this respect, there’s already a problem in Pennsylvania. There the commonwealth’s supreme court lately ordered that votes postmarked by Election Day can be counted if they arrive up to three days late (not a substantive problem for me, but contrary to Pennsylvania election law), that signatures on ballot envelopes don’t have to match voter records (a big problem), and that unpostmarked mail-in ballots must be assumed to have been mailed in time, unless someone can prove otherwise (another big problem). This is an invitation to large-scale voter fraud.

The US Supreme Court refused to hear a challenge of these edicts before the election, but left open the possibility of hearing a case after Election Day. Should that happen, bear in mind, as we have seen, that Article II gives state legislatures, not state courts, the authority to determine how electors are chosen.

Impeding, threatening, or intimidating voters at or on their way to the polls. I’ll worry about credible stories of people impeding or threatening citizens who intend to vote.

Changing key legal deadlines. I’ll worry a lot if judges start ordering changes to the deadlines established in the US Code (December 8, December 14, January 6, January 20).

This is the 21st century. If a state cannot run a competent election within the law, the other states shouldn’t have to wait. We already have rules for that. Again, time is opportunity — for all sorts of hanky-panky. Naturally, such tampering with deadlines would be justified in terms of fairness (whatever that is) and counting every vote. They usually don’t say “counting every legal vote.”

One can imagine violent attempts to impede the January 6 joint session of Congress, or a given state’s electoral college meeting on December 14. These would be bad signs, especially if state or federal leaders decline to respond quickly and forcefully — as was often the case this summer, with other violence in certain states.

Do I Think … ?

Do I think either either candidate in 2020 will refuse to concede a close vote (or perhaps any vote) on election night? Yes. Both.

Do I think we’ll know the result on election night? No, but it’s possible.

Do I think President Trump, if defeated, will refuse to leave the White House on January 20 at noon? No, absolutely not. I’ve heard that speculation repeatedly over the decades, about presidents of both parties. Until it happens, it’s just hysteria. And it won’t happen this time.

Do I think many Democrats, if defeated, will call the election stolen and the winner illegitimate? Yes, absolutely, with the possible exception of a huge Trump landslide which includes the popular vote. Maybe even then. They’re still whining about 2000, to say nothing of their four years, so far, of vitriol over 2016.

Do I think many Republicans, if defeated, will call the election stolen and the winner illegitimate, based on alleged voter fraud. Yes. Will they be right? We may never know.

As long as the process has procedural legitimacy under the US Constitution, federal law, and state law, I’ll call the result legitimate. If I whine at all about the result, it won’t be about the process. If there’s credible evidence of enough voter fraud to tip the result, I’ll be upset about that. (1960 comes to mind, but I wasn’t born yet.)

Meanwhile, as I told someone today, I hope we know the result by the end of the week. If not, I’ll settle for December 8 and hope that not too much of my country burns in the interim.

(About the top image: Yeah, that’s me, sitting in the Oval Office at the President’s desk in 2018 — except that it’s a replica of the Oval Office at the Nixon Museum in Yorba Linda, California.)

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