Category Archives: 2020 General Election

The Independent State Legislature Theory, Election Law, and the Trump Crimes

By tmess2 | Published August 13, 2023

Recently, a federal grand jury in the District of Columbia returned an indictment charging the Orange Menance with crimes related to his attempted coup after the 2020 election.  It is expected that within a week or two a state grand jury in Fulton County, Georgia will add state charges related to the efforts of dictator-wannabe Donald Trump to convince Georgia election authorities to alter the results of the election in that state.

Much of the crimes committed by Donald Trump and his band of incompetent coconspirators were based on a flawed version of the independent state legislature theory and a misunderstanding of election mechanics.

First, the independent state legislature theory.  The independent state legislature theory is based on two clauses in the U.S. Constitution.  One of the clauses is found in Article I and applies to the election of members of Congress.  The other clauses is found in Article II and deals with the selection of presidential electors. Continue Reading...

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Lessons From the January 6 Committee

By tmess2 | Published June 19, 2022

Looking at the highlights from the January 6 Commitee hearing this week, there were two key takeaways from this week hearings — both related to the vote counting process.

First, as anybody who has been involved with campaign at any level knows, votes are not instantly reported at the same time.  Instead, election results roll in as precincts turn in their results and counties count absentee and “federal” ballots (ballots case by military and overseas voters that just cover federal and statewide elections).   More importantly, results by precinct and by county are not random — either in timing or in the vote counts.  There is a regular patten by which results are reported and an expected result by precinct and county.

To use my home county for an example, it is a small county that typically has between 12,000 and 15,000 votes.  While the exact number of precincts has changed, it has always been between 15 and 20 precincts.  In the years that I have lived, there have been changes.  We have gone from a central counting process in which the ballot boxes in each precinct were just ballot boxes and the counting machine was in the courthouse to a precinct counting process in which the ballot boxes are also counting machines and the central counting part of the process is simply downloading the results from each precinct and adding the results together.  This change has speeded up the process (as the county election authority no longer has to run 15,000 ballots through the counting machine and reset the machine for each precinct) and we typically have the full results by 8:30 p.m. (ninety minutes after the polls close) rather than 11:00 p.m.  Additionally, the results are posted on-line as soon as the printout of a precinct’s result can be scanned and uploaded thereby eliminating the need to sit around the courthouse waiting for a copy of the printouts.  But what hasn’t changed is that there is a rough sequence in which the precincts are reported.  In most elections, the first precincts to report are the smaller towns close to the county seat (in the north central part of the county).  Those precincts get to the courthouse first because they are only 5-10 minutes away from the courthouse, and — given their small size — they tend to have few people in line at 7 p.m. and can quickly get to the process of closing the precinct and packing up the ballots and counting device to take to the courthouse.  On the other hand, the five large precincts in the southeast and southwest of the courthouse tend to be the last ones to get to the courthouse as they have the furthest to go and tend to have lines at 7 p.m. (and thus take longer to close as the closing process does not begin until the last person has voted).  In short, while the exact sequence may change some from election to election (as the exact time when the election judges get to the courthouse depends on how long the lines are). Continue Reading...

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House Election Contests

By tmess2 | Published March 23, 2021

Right now Republicans are trying to spin the House’s review of the results in Iowa’s Second District race.  But here is what the Republicans are not saying.

First, the Iowa race is not the only race pending in the House.  The Republican candidate in the Fourteenth District of Illinois has also filed an election contest even though he lost by more than 1,000 votes.  By contrast, the margin in Iowa is only six votes.  Yet Republicans have only attempted to dismiss the Iowa contest.

Second, election contests are not unusual.  While most election contests go nowhere, losing candidates sometimes file election contests.  Over the past ninety years, there have been 100 election contests filed. Continue Reading...

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The Supreme Court and Elections — Post 2020 Editions

By tmess2 | Published March 7, 2021

This past argument session (the February Session) saw the last gasps of the 2020 election.  There were three very different issues on the table:  1) the Trump attempts to overturn the election for alleged failure to follow election procedures: 2) the role of state legislatures, state election officials, state courts, and federal courts in setting the rules for election; and 3) the Voting Rights Act.

On the first issue, there are apparently two cases still pending at the U.S. Supreme Court — one a Wisconsin case that will likely be turned down on the March 8 order list and the other will not be considered until later (either the March 19 or March 26 conference).  The second one is a Pennsylvania case involving the issue discussed below.  Assuming that the Wisconsin case is denied, the Supreme Court will have denied Trump’s requests for review in all of the cases involving alleged fraud in the election over the past several weeks.

The second issue is likely to arise again.  Article I, Section 4, Clause 1 gives the primary authority to set the “times, places, and manner” of congressional elections to the “legislature” of each state subject to the ability of Congress to also legislate on these issues.  Similarly, Article II, Section 1, Clause 1 gives the power to direct the “manner” of choosing electors to the “legislature” of each state.  In recent years, there has been a significant amount of litigation involving these clauses.  There are two key legal questions:  1) what is the scope of “manner”; and 2) what is the “legislature.” Continue Reading...

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Georgia, Recall Elections, Impeachment, and Removal — a Legal Primer

By tmess2 | Published January 8, 2021

In the aftermath of a weak of sedition and riots, I am seeing a lot of questions about issues related to the seating (or exclusion) of Senators and Representatives.  I am also seeing questions about what can be done to bring a quicker end to the mistake that was the Trump presidency.

Let’s start with the Georgia elections.  As we learned in November, it takes time to finalize the election results.  In Georgia, there are three key deadlines.  The first is the deadline for receipt of overseas ballots and for the curing of “rejected” absentee ballots and for determining the validity of provisional ballots.  That deadline was the close of business today.     So, at the present time, all  of the counties should know if they have any votes left to count.

The second deadline is next Friday — January 15.  By that date, all of the approximately 160 counties are supposed to have completed their county canvass and certified all votes to the Secretary of State.  This deadline can be extended if the Secretary of State orders a pre-certification audit (as happened in the presidential race).  (It is unclear how the audit will apply to the Senate races.  The state law required one for the November election but is ambiguous as to the run-off election.  The Secretary of State also opted for a complete hand recount of all votes in the presidential race — which technically is not an audit — but the statute only requires an audit of random counties and precincts.  If a proper – in other words,  limited — audit is conducted, the counties that have to do the audit may not need an extension.) Continue Reading...

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The Count

By tmess2 | Published January 3, 2021

To quote the Grateful Dead, “what a long, strange trip it’s been.”  Our hopes for a decisive enough result that the winner would be clear on November 3 failed to come to fruition.  And since then, Trump and his allies have thrown everything but the kitchen sink into denying reality.  Even as late as this week, Trump’s allies have been filing meritless cases to try to have judges cancel the votes in various states.  And almost all of the case have been rejected by the courts.  To date, the Supreme Court has not accepted any cases, and have left most cases proceed on the normal schedule (which means no decisions on taking any of them prior to January 8 when the Supreme Court next meets).

That leaves us down to one last abuse of the legal process — the joint Congressional session to count the electoral votes sent by the states.  The current process dates back to the aftermath of the election of 1876.  In that election, you had a handful of states with conflicting results certified by different entities.  As such, you had multiple states sending votes from individuals that had been recognized by some part of state government as the official electors.  Ultimately, a commission was established to resolve those disputes.  While it took around a decade to get legislation through Congress, the Electoral Count Act of 1887 set forth the key provisions that are still in place today.   The current language in Title 3 sets forth a multi-stage process.

First, prior to election day, each state legislature shall set forth the rules governing the selection of electors.  These rules besides designating who makes the selection also dictate the procedures to be followed during that selection, the role to be played by various state agencies (legislatures, state election authorities, and local election authorities) in running the selection process, and who has the power to resolve disputes that might arise during the selection process (courts, state election authorities, local election authorities, and legislatures).  While the Constitution does not mandate the use of the popular vote to select electors (and, in the early days, some states had the legislature pick the electors), every state has now opted for using some variation of the popular vote to pick electors.  And every state has adopted procedures in which the initial resolution of election disputes are made by local election authorities and state election authorities with the potential for judicial review of those decisions. Continue Reading...

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Georgia on My Mind

By tmess2 | Published December 29, 2020

A week from today, there will be two runoff elections in Georgia for its two Senate seats.  One, the race between Senator David Perdue and Jon Ossoff will be for a full six-year term.  The other, the race between Senator Kelly Loeffler and Reverend Raphael Warnock is for the last two years of former Senator John Isakson’s term.

Georgia, like many southern states, requires a primary run-off if no candidate wins a majority in the primary.  However, Georgia is part of a very small set of states that requires a run-off if no candidate wins a majority in the general election (except for the selection of presidential electors).  It also, like some other states (again mostly in the south), uses a so-called jungle primary for special elections in which all candidates from all parties run on the same ballot in the general election rather than having party primaries to pick candidates for the special election.  Back in November, the Libertarian candidate did just well enough in the Perdue-Ossoff race to prevent anybody from getting a majority, and there were enough candidates running in both parties that nobody got over 35% of the vote with Warnock and Loeffler advancing to the runoff.

As the fact that it is primarily found in the South should indicate, runoff elections have a somewhat racist history in the U.S.  While not the only reason for wanting a runoff, keeping power for the white political and economic establishment against reformers who might support an increased role for minorities (among other things) was a motivating factor. Continue Reading...

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Electoral College

By tmess2 | Published December 13, 2020

One of the often misunderstood aspects of U.S. elections is how the popular vote relates to the election of the President.  While, in the majority of the states, the ballot simply lists the candidates for President (along with the Vice-Presidential running mate), voters are effectively voting for a slate of electors.  The winning slate in each state then assembles on the first Monday after the second Wednesday in December at the location and time designated by that state.  After assembling, the electors for the state cast a vote for President and a vote for Vice-President.  The votes are then counted, and the electors complete six certificates of vote recording the votes of the electors for that state.  Each certificate of vote is paired with one of the previously completed certificates of ascertainment.  Federal law then directs what happens with the six certificates of vote with one going to the President of the Senate (in practice, the clerk of the Senate), two to the national archives, two to the secretary of state of the individual state, and one to the federal district court for that state.

Normally, the meeting of the electoral college is a big ceremonial event.  With Covid-19 and the potential for protests to get out of control, it appears that most of the states are planning on holding scaled-down events.

The fringe element of Trump supporters (and President Putin) are hoping for some last minute drama for Monday, but that is practically impossible for several reasons.  First, earlier this year, the U.S. Supreme Court upheld state laws requiring electors to vote for the presidential candidate to whom they are pledged.  While states have different laws on so-called faithless electors,  the net effect of those laws is that sixty-nine Biden electors are from states that replace an elector and cancel the electors vote if the elector fails to follow through on their pledge, sixty are from states that fine the elector, seventy-one are from states with pledges but no enforcement provision, and one hundred six are from states with no law on this issue.  That means that, at most, there are 237 Biden electors who could defect. Continue Reading...

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Congressional Election Contests

By tmess2 | Published November 25, 2020

Under the Constitution, each house is the final judge over any dispute related to the election and seating of members.  Fortunately, this power is only rarely invoked.  But we may be facing one (or more) of those rare instances this year.

As this post is going live, we are in the midst of a recount for Iowa’s second congressional district.  Each county is individually certifying their recount.  Most of the counties have certified the new numbers, but a handful have not yet made their numbers official.  Based on the official numbers from the counties that have certified the recount result and the original count from the remaining counties, the margin is 35 votes.  But unofficial reports from the remaining counties show a swing of 36 votes which would mean that the Democrat would win by 1 vote.  Of interest in Iowa is the law governing recounts.  The law allows each county to choose between a hand recount or a machine recount or, maybe, a hybrid recount (in which ballots which are kicked out as overvotes or undervotes are examined to see if there is a valid vote).    These differences between the counties means that the final result from Iowa will differ from what a full hand recount would have shown or what a full machine recount would have shown.  And that invites further review.

Likewise, it seems like the race in New York’s twenty-second district is also close.  Because New York counties are not required to report interim counts, we will not know the final counts officially until all of the counties certify their results.  Some of the counties have officially released their current counts, but, in other counties, reporters are relying on sources to report the state of the count.  It appears that the race in New York is as close or almost as close as the race in Iowa.  Currently, final results are up in the air as the courts have been asked to review provisional ballots to determine which ones should be counted (and, apparently, one county used post-it notes to distinguish between the already counted ballots and the rejected ballots and those post-it notes fell off in transport). Continue Reading...

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Post-Election Terminology

By tmess2 | Published November 22, 2020

During the extended count and litigation, we are hearing a lot of terms tossed around that are usually the special reserve of election law geeks.  So here is a quick primer on some of these terms.

Audit — This term typically covers the process of double-checking the count.  While not every state does an audit, and the audit process differs from state to state, there are some aspects that are shared by several states.  First, the most simple audit is simply a check that the machines are functioning properly.  This typically involves a “test deck” with a known count to see the machine records the count correctly.  Second, several states do a hand count of random precincts and random races.  As with the test deck, the hand count is to make certain that the machines are roughly correct. Of course, a hand count will pick-up some ballots that the machine is unable to read.  If this part of the audit reveals a significant deviation from the machine count, it can be expanded to cover more precincts and more races.  Third, some states do other types of machine tests to verify the programming.  Fourth, depending on the state, an audit might include checks to make sure that the counts of ballots and voters match.

Canvass — This term is somewhat slippery as it is sometimes used to refer to local processes and state processes and often includes the certification process.  At it’s most simple, it refers to the local process of reviewing ballots — primarily absentee and provisional — and making sure that the vote totals from all precincts and voting centers are accurately recorded.    If there is time, the canvass can include an attempt to resolve any discrepancies in the counts of ballots and voters. Continue Reading...

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