Conservative Skepticism
"Ned, could I jump in here," said John C. Fortier, director of governmental studies at the Bipartisan Policy Center. "There's a distinction between, 'I think... the facts don't really support that there's anything [that] was particularly wrong here,' versus a decision of an election administrator. That decision might be something you find very objectionable. I can bring up election administrators on either side of the aisle [about whom] people would have said, 'Well, they did that for bad purposes. They made the wrong decision.'"
At this point the discussion entered the constitutional danger zone, where respect for laws and enforcing rules as the underpinning of elections begins to disintegrate.
"This is a very difficult set of questions," said NYU Law School's Issacharoff. "One question is what can be done ahead of time to try to forestall this" I don't think that the Electoral Count Act is well-settled law. It has been on the books for a long time. It has never been applied. The closest we came to it was its spiritual invocation in Bush v. Gore. It is hardly a blueprint for how institutional actors can settle themselves."
But some conservative scholars disagreed, noting that the ECA has been used recently.
"In 2001, members of Congress repeatedly on the floor tried to object to counting Florida's electoral votes, and [then-Vice President] Al Gore said [it was], 'improper under the Electoral Count Act,'" said Derek Muller, professor of law at Pepperdine University's Caruso School of Law. "In 2005, they challenged Ohio's electors -- Democrats in both the House and Senate. They debated for two hours. They came back. They counted Ohio's votes. In 2017, it was a parade of objections on the floor of Congress with [presiding Vice President] Joe Biden saying, 'It's over. It's over under the Electoral Count Act.' I agree: the two-slate [of electors] question is sort of an open, highly debatable contest. But I do think the Electoral Count Act has served its function the last three times the Republicans have been elected, where Democrats have been contesting the election [result] on the floor of Congress."
"I think there's always a question about what one says rhetorically and what actually is driving the result," replied Issacharoff. "The overriding of the seemingly expressed popular will, by legislative fiat either at the state or congressional level, is, thus far, a radical departure from American norms" I doubt if a single member of Congress had any idea what the Electoral Count Act was or what its provisions might say."
Politics or Law?
The notion that "politics, not law" could determine the 2020 presidential election outcome began to hover over the discussion's closing hours. Scholars asked if non-legal factors, such as public opinion after the popular vote was seen as being ignored by partisans, might pressure or sway congressional actions.
"It may make sense to, in the same way that you'd advise a client, [say,] 'Look, you need to win beyond the margin of litigation.' You can also say to the people who are involved, 'Look, you need to win beyond the margin for intransigence,'" said Lisa Manheim, a University of Washington law professor. "What exactly does that mean? Well, we have been talking for hours about all of the different places where we can have these problems. One of the things that we can do perhaps is to flag thosesay those are the problems. We need to avoid those. The truth of the matter is there is not a clear legal answer."
These kinds of thresholds would likely be where the U.S. Supreme Court would weigh in, several scholars said.
"The question of whether law applies or doesn't apply is itself a legal question," said Elizabeth Goitein, co-director of the Brennan Center for Justice's liberty and national security program. "In the sense [that] a lot of what we are asking is whether Congress can be bound by the Electoral Count Act, that itself is a legal question: Whether Congress can be bound by it; whether it is enforceable. Which is not to say that if the Supreme Court were to resolve that question that Congress would necessarily abide by it, and then we'd be back in the land of politics."
"I agree with all of this. If we get to this worst-case scenario, with two competing slates and split-party control of the two chambers of Congress, it is almost inconceivable to me that the Supreme Court doesn't decide that question," said Adav Noti, senior director of trial litigation and chief of staff at the Campaign Legal Center. He added that Chief Justice "John Roberts, for all his reluctance to get involved in political disputes, the reason he doesn't like that is to build credibility for exactly situations like this."
"There is no other mechanism to solve it," Noti continued. "I think the Supreme Court justices will weigh in, even if it's a 5-4 decision, before they will let blood run in the streets. Now maybe they will enforce the ECA. They'll say the governors get to tie-break. Maybe they'll say, 'No, the ECA is unconstitutional because under the Constitution, state legislatures have plenary power, so they have to have the tie break. Maybe they'll say the president of the Senate decides, unless he's overruled by a majority of senators... But I think they will decide."
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