[EL] Stein Recount Could Endanger WI Electoral Votes in the “Safe Harbor” (+Lessig)

[Sean Parnell]

The blurb below from the Journal-Sentinel needs a bit of clarifying, at least if one wishes to be technically accurate (and on this list, I suspect most wish to be so).

The “safe harbor” provision does not *require* states complete their counts/recounts within 35 days of the election. The safe harbor simply ensures that, for states that submit what is known as a Certificate of Ascertainment by that 35th day certifying which slate of electors has been elected, the votes cast by their electors will not be subject to any challenge when counted by Congress in early January (I’m setting aside here the question of whether this statutory bar to challenge is constitutional). In 2012, I believe 10 or 11 states submitted their Certificate of Ascertainment after the safe harbor deadline (including Wisconsin, which apparently submitted its in early January). And it should be noted that, even though Wisconsin’s electoral votes were technically eligible to be challenged (as were California’s and the other states’), they weren’t, because nobody seriously thought that Romney won Wisconsin. None of the other states with certificates filed after the safe harbor date were challenged either. The certificate is really only important in the event of a very close, uncertain outcome (Florida 2000 comes to mind).

One additional note: while I don’t know what Wisconsin’s laws state, in 2012 New York submitted their certificate with 400,000+ ballots still uncounted (Hurricane Sandy caused all sorts of problems with both the voting and counting of votes). It’s possible that if Wisconsin’s governor were to be concerned that Wisconsin’s electoral votes might not be counted because a recount was still under way, he could just file the certificate with Trump’s electors declared the winner (or he could have some real fun and submit two competing certificates, one with Trump’s slate and one with Clinton’s – this is more or less what Hawaii did in 1960, cabling Washington a day or two before Congress counted the electoral votes and informing them which to accept – Kennedy’s).

Oh, and Lessig is right (not a phrase one hears a lot from me) in the other piece. The electors are free, under the rules, to vote for whomever they want. This issue is almost exactly identical to the one heading into the Republican National Convention – the rules clearly allowed all delegates to vote their conscience, the fact that a whole lot of people didn’t understand those to be the rules was irrelevant. The rules as written today allow electors to vote for whomever they want (and here I am assuming that “faithless elector” laws are unconstitutional, or at least cannot alter the votes as case by a faithless elector), the fact that some portion of the public didn’t understand those to be the rules are no more relevant than the fact that many voters didn’t understand that the candidate winning the “popular vote” doesn’t necessarily win the presidency.

Best,

Sean Parnell
Vice President for Public Policy, The Philanthropy Roundtable
1120 20th Street NW, Suite 550 South
Washington, DC  20036
(202) 600-7883 (direct)
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sparnell at philanthropyroundtable.org


Stein Recount Could Endanger WI Electoral Votes in the “Safe Harbor”<http://electionlawblog.org/?p=89502>
Posted on November 25, 2016 12:39 pm<http://electionlawblog.org/?p=89502> by Rick Hasen<http://electionlawblog.org/?author=3>
Journal-Sentinel:<http://www.jsonline.com/story/news/politics/elections/2016/11/25/recount-would-have-move-quickly/94417686/>
Wisconsin could be at risk of missing a Dec. 13 deadline to certify its 10 electoral votes if clerks can’t complete an expected recount by then.
Hitting the deadline could be particularly tricky if Green Party presidential nominee Jill Stein is able to force the recount to be conducted by hand, Wisconsin’s top election official said.
Stein — who received just 1% of the vote in Wisconsin — has promised to file for a recount by Friday’s 5 p.m. deadline in Wisconsin. She is also planning to ask for recounts in Michigan and Pennsylvania, which have deadlines next week.
A federal “safe harbor” law requires states to complete presidential recounts within 35 days of the election to ensure their electoral votes are counted. This year, that’s Dec. 13.
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Lessig Replies on Faithless Electors<http://electionlawblog.org/?p=89494>
Posted on November 25, 2016 9:26 am<http://electionlawblog.org/?p=89494> by Rick Hasen<http://electionlawblog.org/?author=3>
Here<https://medium.com/@lessig/rick-hasen-but-not-to-ignore-it-what-is-it-59aaf4f0f0a3#.kjuoa63sr>.
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