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What happens when a state can’t decide on its electors

John F. Kennedy barely edged Richard Nixon in the 1960 popular vote, winning by fewer than 117,000 votes, or less than two-tenths of 1 percentage point.

Washington, 30 October 2020 (tca/dpa/MIA) — John F. Kennedy barely edged Richard Nixon in the 1960 popular vote, winning by fewer than 117,000 votes, or less than two-tenths of 1 percentage point.

He won enough states, though, that when Congress convened on Jan. 6, 1961, to officially certify who would be inaugurated two weeks later, Kennedy had an undisputed lead of nearly 100 votes in the Electoral College.

That meant three disputed electoral votes from Hawaii, which could have been a source of controversy in a close contest and tested our political system, didn’t really matter.

How Nixon handled those disputed votes is worth remembering, however, at a time when President Donald Trump is telling his supporters that the only way he loses is if there’s rampant fraud, and lawyers around the country are scrambling to brush up on the intricacies of the Electoral Count Act of 1887.

Hawaii was a new state in 1960 holding its first presidential election — a concept that’s also worth remembering as the possibility of adding Puerto Rico and the District of Columbia to the union is portrayed as somehow outrageous.

Turnout topped 93 per cent in Hawaii. The state’s result was close, just as the nation’s was overall. Nixon initially appeared to be the winner by 141 votes, and the Republican governor declared him the winner. But a judge granted the Kennedy team’s request for a recount. As it dragged on, the judge rejected GOP attempts to stop the count. When the mid-December date came for the Electoral College to meet — this year it’s Dec. 14 — both Republican and Democratic electors sent their votes to Washington to be counted.

Kennedy eventually was declared the winner in the Hawaii recount by 115 votes, but the two sets of certifications were waiting when the joint session of Congress convened. Democrats, including Rep. Daniel K. Inouye, were ready to lodge an objection if the GOP slate was counted, but the presiding officer — the Senate president, who also is the vice president: i.e., Nixon — pushed the issue aside.

“He resolved it in a rather statesmanlike way by using parliamentary procedure,” State University of New York professor James A. Gardner said in a recent webinar organized by the New York State Bar Association. “He asked for unanimous consent that the votes of the Democratic electors would count. So he resolved this against himself.”

Nixon wasn’t the first vice president who had to preside over the opening of electoral votes that declared his opponent the winner, and he wasn’t the last. The most recent was Al Gore, who had conceded the 2000 election after the Supreme Court stopped a recount in Florida, effectively handing the state’s electoral votes, and the presidency, to George W. Bush. At that joint session in 2001, House Democrats in the Congressional Black Caucus tried to object to the acceptance of Florida’s electoral votes. But their complaint did not have a Senate co-sponsor as required by law, and it was dismissed by Gore.

In the event of a bicameral objection, the rules say the House and Senate would separate to debate the objection according to their rules. This is when things can get very muddy, legal experts agree, with the potential for disputes between legislatures and governors and arguments over whether electors were “lawfully certified.” Votes could be thrown out if they were not “regularly given” — but what does that mean in a year when the coronavirus pandemic has forced states that previously relied heavily on in-person voting to shift to mail-in or drop-off paper ballots?

The law also says legislatures pick electors, and therefore presidential winners, if state election officials fail to name a winner. Some people believe the GOP’s reluctance to support efforts in the battleground states of Michigan and Pennsylvania to begin processing mail-in votes before Election Day is tied to the fact that they have Democratic governors and Republican-controlled legislatures. If disputes over mail-in votes are dragging on in court when it comes time for the Electoral College to meet on Dec. 14, it’s possible legislators could put up their own slates.

Those disputes would land in the lap of Congress, and don’t expect objections to come only from Republicans.

Sherrilyn Ifill, president and director of the NAACP Legal Defense and Education Fund, noted during a webinar hosted by the Aspen Institute on Oct. 2 that just as the Black Caucus objected to the Florida vote in 2001, the same could happen in January if voters are intimidated from casting ballots or election officials are stopped by armed groups or court orders from counting absentee or provisional ballots.

“We are a nonpartisan organization, but we believe it’s critical that every vote is counted,” she said. “And so I would just draw your attention to the fact that we really have to take this all the way to Jan. 6, and that potential statutory challenge may be received quite differently in 2021 than it was received in 2001.”

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