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...