Though the facts behind the story have been known for more than nine months, many are now obsessed with what the presidential electors committed to Donald Trump did in December 2020, in seven key states. Their acts, many insist, were “fraudulent,” or “forgeries.” They establish, as Democratic California Rep. Pete Aguilar put it, a “dangerous precedent.”
But the “dangerous precedent” from that election is not what many of these electors did. The “dangerous precedent” is the potential it reveals.
The Trump electors in those seven states were acting on the basis of a well-known precedent, in the face of an even better-known feature of our Constitution. The 2020 election was not close. But under our law, any candidate challenging the results of a presidential election must take steps very much like what these electors did.
Though the Constitution gives the states the power to set the “manner” by which its electors are appointed, it gives Congress the power to say when those electors must vote. In close elections, that deadline can create an obvious problem. If the election is still contested in a state at the time the electors are to vote, which slate of electors should vote? Congress’ deadline is not a mere suggestion. In 1856, when a snowstorm blocked Wisconsin electors from voting on the day Congress had set, Congress debated for two days whether their votes could be counted. It didn’t matter in 1856. It could well matter in the future.
Which is why the practice has evolved in a contested election of having both slates of electors cast their ballots on the day Congress chooses. In Hawaii in 1960, Richard Nixon had seemingly won in a very close vote. Hawaii’s acting governor so certified. A recount then determined that John F. Kennedy had in fact won. That recount was not completed until after the Electoral College had voted. Yet some smart lawyer advised the Hawaii Democratic Party to have their electors vote on the day set by Congress too. They did. Their ballots, certified by the governor, were then flown on a private plane, arriving in D.C. on the morning of Jan. 6, 1961.
What the Trump electors did in 2020 was, in every case, close to this, though in critical cases, something much worse. Two states were quite clear about the contingency of their votes —New Mexico and Pennsylvania. But five states prepared documents that made it seem like Trump had in fact prevailed in their state. Those claims were obviously false. Filing false claims with the government can be a crime. So yes, what those electors did should be criticized, and perhaps prosecuted. They should have done as their fellow electors in New Mexico and Pennsylvania had done — and certified a slate of votes contingent upon their candidate being declared the winner in their state. That certification, then, would have to wait—either for some state authority to declare its candidate the winner or for Congress to determine that that slate actually represents the candidate whose votes should be counted.
This practice is a critically important precedent for Congress not to criticize but to endorse. Because if electors can’t do this, there’s an obvious way in which an election can be flipped. The leading challenger to Georgia Gov. Brian Kemp, former-Sen. David Perdue, says Kemp was insufficiently supportive of Donald Trump in 2020. That suggests that Perdue believes that Kemp should have certified the election for Donald Trump in 2020, despite the fact that Trump had plainly lost.
If that had happened, what would the Biden electors have done? Obviously, the Biden camp would have challenged the governor’s act in court. Possibly, the courts would have corrected it. But while that process was working its way through the courts, under the Hawaii precedent, the Biden electors from Georgia, in this hypothetical, should plainly have met on Dec. 14, cast their ballots for Biden, and then sent those certificates to the archivist. In that event, nothing about the second slate of electors would have been forged or fraudulent. Under such a circumstance, they should have announced their contingency, but offered Congress valid electoral votes that Congress might then count.
What would have happened then is hard to know. Under the ruling of the Senate parliamentarian, the only slates of electors the vice president was to present to Congress were those properly certified under the Electoral Count Act. The Biden electors, in this hypothetical, would not have been so certified, because their certificates would not have been signed by the governor. No doubt the parliamentarian’s ruling in such a case could be challenged. That challenge might have prevailed. But the possibility for double electors—under the Hawaii precedent—would at least have meant that the real electors would be in Washington on the morning of Jan. 6, and nothing in the Constitution would have blocked Congress from counting them.
All this points to yet another gap in how the Electoral Count Act now functions. It is plainly possible for the process of certifying a proper winner to fail in the states. The text of the ECA seems to acknowledge as much. The provision covering the counting of electoral votes directs the vice president to lay before the joint sessions “all the certificates and papers purporting to be certificates.” That rule, if followed, would give Congress one final chance to judge whether the process in the states should be credited or not.
That 147 members of Congress in the past election voted to challenge the results is good reason to be skeptical of Congress having such power. But Congress is not the only institution to fear. If the process in the states goes rogue, then there must be a path for alternative slates to at least be considered. Maybe the solution is that not just any alternative be considered potentially legitimate, so as to exclude wholly baseless slates (like Trump’s). The law could, for instance, distinguish between fantasy slates and slates with at least some substantial judicial determination behind them.
But giving the governor a power to determine whether an alternative is even seen risks a threat that is now plainly patent. We have never seen a Congress vote to discard a valid slate of presidential electors. But we now see a leading candidate for governor in a critical swing state suggest that he, in fact, would.
Any system creates risk. But in our system to elect the president, that risk is not whether alternative slates of electors exist. It is whether the right slate will be counted. The risk that it won’t should be diffused among many, not held by a few. It should remain in Congress as a whole, not concentrated in decisions of governors. That is not the rule of the ECA, as interpreted, now—which is one more reason immediate reforms are critical.
