Trump getting off plane
President Donald J. Trump . (Official White House Photo by D. Myles Cullen)

The Electoral College has voted, and Joe Biden is now officially, if not before, the President-Elect, but some Republicans still believe the election is not over.

White House Senior Advisor Stephen Miller said on Fox & Friends this morning, “The only date in the Constitution is January 20. So we have more than enough time to right the wrong of this fraudulent election result and certify Donald Trump as the winner of the election.”

“As we speak, today, an alternate slate of electors in the contested states is going to vote and we’re going to send those results up to Congress. This will ensure that all of our legal remedies remain open. That means that if we win these cases in the courts, that we can direct that the alternate state of electors be certified,” he added.

Except this is a pipe dream. No court will overturn the Electoral College vote that has now been certified. 

The 1887 Electoral Count Act (which is poorly written) theoretically allows for dueling slates of electors from contested states. An explainer by Tom Hals in Reuters states, “States with close contests between Republican President Donald Trump and his Democratic rival Joe Biden could produce competing slates of electors, one certified by the governor and the other by the legislature.”

“The risk of this happening is heightened in the battleground states of Michigan, North Carolina, Pennsylvania and Wisconsin, which have Democratic governors and Republican-controlled legislatures,” he added.

When Congress meets on January 6, 2021, if there were dueling slates of electors, theoretically, the House could approve one slate of electors and the Senate for the other.

While the Trump campaign organized alternate electors to vote, no state legislature has certified alternate electors. 

Not that it would be constitutional for a state legislature to violate their state law and state constitution to certify an alternate slate of electors contrary to the state’s popular vote anyway, and it would certainly violate federal law.

U.S. Rep. Mo Brooks, R-Mo., tweeted, “In presidential election contests, Congress has a superior role under the 12th Amendment to the Constitution than the Supreme Court, any federal court, or any state court. Congress is empowered to certify electoral college vote submissions, or not.”

Is he right? 

The section of the 12th Amendment he is referring to reads, “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; — The person having the greatest number of votes for President, shall be the President, if such a number be a majority of the whole number of Electors appointed; and if no such person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote…”

According to the 12th Amendment, the House could supplant the candidate for President who has a plurality if a majority is not reached. 

That is not the case.

Now, back to the 1887 Electoral College Act

It reads, “Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified.”

Here’s the confusing part, the law says that “no electoral vote or votes from any State which shall been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected.” 

Then it says Congress can reject the vote or votes if they concurrently vote that those electoral votes were not “regularly given” and “lawfully certified.”

They shall not, but they may??? It’s convoluted. 

I’m not sure their legal rationale for that 3 U.S.C. § 6 (1948) spells out the criteria “regularly given” and “lawfully certified” electoral votes clearly. Also, per 3 U.S.C. § 5 (1948), the final determination for controversies over electors shall be determined at least six days before the Electoral College votes. This is called Safe Harbor day, and it was on December 8, 2020.

So, technically, the House and Senate could vote to reject electoral college votes, I guess, but there’s no chance that it would pass. It’s questionable that rejecting a vote that meets criteria standards under 3 U.S. Code § 6 would be legal. It’s most definitely unconstitutional because nowhere in the Constitution’s text does it give Congress this kind of authority. 

All the 12th Amendment allows is for the votes to be counted in the presence of Congress. It makes no mention of the vote requiring Congressional approval. 

So, while some on Team Trump want to state the fight to win the presidency is not over, in reality it is.

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