[EL] The Recount, Concession, and Safe Harbor

[Sean Parnell]

December 19 seems like a pretty hard deadline for the electoral college to meet and vote, but I suppose "living, breathing constitution" advocates might dissent. If there's still a recount underway on that date, or at least the outcome is still contested/unknown, then I'd advise the governor to convene both slates on Dec. 19 and submit competing Certificates of Vote, one for the Trump slate and one for Clinton slate (and maybe the Johnson and Stein slates too?), and then once the contest is resolved (assuming prior to Congressional count) submit a Certificate of Ascertainment for the winning slate only (again, similar to Hawai'i in 1960). Congress could disregard it of course, but assuming the recount/contest resolution is generally thought to be fair and accurate, I'd expect them to accept it. Of note, I don't believe Congress could accept the slate with no Certificate of Ascertainment, or otherwise award a state's electoral votes to anyone other than whom they have both a Certificate of Ascertainment and a Certificate of Vote (assuming the constitutionality of the 1876-era reforms hold up). Their choice is to count the single Certificate of Vote for which there is a Certificate of Ascertainment, or to not count the state's electoral votes for any candidate. At least that's my recollection, I'm going from memory and don't have the time to pursue this any further down the rabbit hole. If I'm correct, it also means that if the contest isn't resolved by the time Congress counts the votes and no Certificate of Ascertainment has been issued, then that state won't have any electoral votes counted and will effectively have sat out the presidential election.

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



From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Reuben, Richard C.
Sent: Monday, November 28, 2016 2:42 PM
To: Election Law <law-election at uci.edu>
Subject: [EL] The Recount, Concession, and Safe Harbor

I am curious as to the thoughts of the group as to:

1. The effect of Clinton's concession on the results of the three recounts, and

2. The Safe Harbor of Dec. 19.

My thoughts on the first are that the concession is not binding if the recount in fact shows she won those three states. I see two main arguments supporting this:

a. The election results are the election results, and Clinton does not have the power to waive them through concession on a pre-hoc basis. If she wins those states, and wins the electoral college, she has the power to say I don't want the job post-hoc. But she can't unilaterally deny the citizens of those states the content of their votes.

b. To the extent she orally conceded, such concession was based on faulty information upon which she reasonably relied, and the manipulation of elections should not be rewarded by effectively eliminating post-election contests and limiting challenges to pre-election challenges.  This argument is somewhat problematic because she did concede, unlike Al Gore in 2000. But see Argument (a).

c. Other arguments?

d. Assuming as I do that the concession is not legally binding and that a recount would have legal effect, the next question is when it would have to be completed by to potentially change the outcome in this election.  The Safe Harbor date of Dec. 13 is not a firm obligation for the states. It's just a date by which a state's results are presumptively valid in advance of the meeting of the electors, this year on Dec. 19. I agree with Breyer's dissent in Bush v. Gore that the real date of concern for purposes of a recount in Dec. 19. Even then, there is room for litigation in our constitutional scheme, especially given the possibility of one or more of these states ultimately turning in conflicting votes.

As has been often said, we are in uncharted territory on this one, and I don't think it's beyond the realm of possibility that we could end up with the Presidency decided by the House and the Vice Presidency by the Senate. Nor do I think it would be the end of the world.

I look forward to your thoughts.

Richard

Richard C. Reuben
James Lewis Parks Professor of Law and Journalism
University of Missouri School of Law
Hulston Hall
Columbia, MO 65211
ReubenR at missouri.edu<mailto:ReubenR at missouri.edu>


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