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

Mon Nov 28 08:48:41 PST 2016

Sean:

While the arguments about faithless electors are eerily familiar, the
analogy to the Republican national Convention is off.  The Rules of the
Republican Party in effect at the convention required the binding of
delegates in accordance with the results of any statewide presidential
preference vote.  [ Rule 16(a)(1)]  Of course, further amendments were
adopted in Cleveland which render that issue moot.

John Ryder
General Counsel, RNC

On Mon, Nov 28, 2016 at 7:48 AM, Sean Parnell <
sparnell at philanthropyroundtable.org> wrote:

> 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)
>
> (571) 289-1374 (mobile)
>
> 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.*
>
> [image: hare]
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89502&title=Stein%20Recount%20Could%20Endanger%20WI%20Electoral%20Votes%20in%20the%20%E2%80%9CSafe%20Harbor%E2%80%9D>
>
> Posted in Uncategorized <http://electionlawblog.org/?cat=1>
>
>
>
>
>
>
>
> *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>
> .
>
> [image: hare]
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D89494&title=Lessig%20Replies%20on%20Faithless%20Electors>
>
> Posted in Uncategorized <http://electionlawblog.org/?cat=1>
>
>
>
>
>
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