[EL] Atlantic "Deadline that Could Hand Trump the Election" piece [ELB News and Commentary 9/10/20]

[Marty Lederman]

The Atlantic piece isn't accurate in some respects.

For one, I believe Congress prescribed the 12/14 date in 1934, not in the
1887 ECA.

For another, the article assumes the PA legislature could itself choose
electors on that date, even though there's no PA law providing for that.
(The state legislature doesn't have a "constitutional right to pick its own
electors"--it has a constitutional power to enact laws prescribing the
"manner" in which PA will appoint electors.  And it has not enacted a law
assigning that authority to the legislature itself.)

Perhaps most importantly, the headline is misleading.  If the Senate and
House on January 6 disagreed about who had won the election, Trump wouldn't
be "handed" the victory.  Indeed, he'd be required to leave office on
January 20 (unless the SCOTUS were to rule that the Senate's decision
supersedes the House's--which it *shouldn't *do, but who knows?).

On Wed, Sep 9, 2020 at 11:20 PM Rick Hasen <rhasen at law.uci.edu> wrote:

> “The Deadline That Could Hand Trump the Election; A 133-year-old law
> creates perverse incentives for the Trump administration—and could make a
> chaotic postelection period even more tumultuous.”
> <https://electionlawblog.org/?p=114962>
>
> Posted on September 9, 2020 7:55 pm
> <https://electionlawblog.org/?p=114962> by *Rick Hasen*
> <https://electionlawblog.org/?author=3>
>
> The Atlantic:
> <https://www.theatlantic.com/politics/archive/2020/09/trump-biden-electoral-count-act-1887/615994/>
>
> *Many Americans know that counting all of the votes in this November’s
> presidential election is going to take extra time
> <https://www.theatlantic.com/politics/archive/2020/07/new-york-election-failure-mail-in-voting/614446/>.
> Few people realize there’s a specific deadline by which states must finish.*
>
> *The 1887 Electoral Count Act seems like an obscure piece of political
> trivia. But ahead of what could be one of the most contested presidential
> elections in modern history, some experts worry that this 133-year-old
> relic of the U.S. Code could endanger the whole republic. The law itself is
> a relic of the last time the partisan divide got so intense that it nearly
> ripped apart the country. But no one ever clarified the bits of it that are
> ambiguous, and no one ever came back to revise or update it. The law is a
> “morass of ambiguity, which is the exact opposite of what is required in
> this situation,” a group of legal scholars convened by UC Irvine wrote
> in an April report of possible election problems
> <http://www.law.uci.edu/faculty/full-time/hasen/2020ElectionReport.pdf>.
> But it’s still the law.*
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D114962&title=%E2%80%9CThe%20Deadline%20That%20Could%20Hand%20Trump%20the%20Election%3B%20A%20133-year-old%20law%20creates%20perverse%20incentives%20for%20the%20Trump%20administration%E2%80%94and%20could%20make%20a%20chaotic%20postelection%20period%20even%20more%20tumultuous.%E2%80%9D>
>
> Posted in electoral college <https://electionlawblog.org/?cat=44>
>
>
>
>
>
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