Electoral College Procedure

This past week has been filled with disturbing news. President Trump has continued to raise hundreds of millions of dollars in the form of campaign contributions. He has continued his crusade to overturn the votes of 81 million Americans and their 306 lawfully chosen electors. He has continued his quixotic litigation in swing states despite having lost over 30 court decisions to date. When does it end?

Spirited Reasoners, being well versed in federal statutory law, know that parts of this story will end on December 8, parts on December14, parts on December 23, parts on January 6, parts on January 20, and the rest may survive, and (God help us) even thrive, well beyond the lifetime of Donald Trump.

According to federal law (3 U.S.C. §6), any state which has certified its electors to the federal Archivist as of December 8 cannot change those electors after that date, which is known as the “Safe Harbor” deadline.

On December 14, electors meet in their respective states to cast their ballots pursuant to 3 U.S.C. §7. Each elector casts one vote for President and one for Vice President using a paper ballot. Six original copies, in the form of certificates, are prepared and signed for each ballot. Certificates are then sent as follows: one to the President of the Senate (aka the Vice President of the United States, currently Mike Pence), two to the Secretary of State (or equivalent officer) in the state where the elector resides, two to the U. S. Archivist, and one to the federal district judge for the district in which the electors met in that particular state. (See 3 U.S.C. §11.)

These certificates must reach the President of the Senate no later than December 23. If they do not, then the law requires the President of the Senate to contact that state’s appropriate officer (usually the Secretary of State) and direct that officer to deliver the votes to President of the Senate and to their federal district judge, using messenger by hand. (See 3 U.S.C. §§12, 13.)

On January 6, at 1:00 p.m., the votes are opened and counted in a joint session of Congress with the Vice President of the United States presiding. (3 U.S.C. §15). Spirited Reasoners shudder at the possibility that Mike Pence could conceivably follow his boss’s instructions at this point and refuse to recognize the opening of votes from one or more states. By law, he is the person who announces the vote. Let’s assume, for purposes of this blog post, that nothing so horrible happens. If it does, then we will be safe in concluding that we no longer live in a nation of laws.

On January 20, the winners are inaugurated as President and Vice President of the United States. Assuming Donald Trump’s mischief has been unsuccessful up to this point, those winners should bear the names Joe Biden and Kamala Harris, respectively, all tweets to the contrary notwithstanding.

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