Talk:Electoral Count Act

Questions

This article is generally good although the confused nature of the subject itself makes it hard to be definitive. A few questions:

• Was there anything put in place at all between 1877 and 1887? Or would any disputed election in that period have become another round of endless arguing?
• Is it still possible votes for President and Vice President to be accepted/rejected separately? Or does the Act restrict Congress to rejecting an Elector's votes as a whole?
• Is there any provision for if Electors have voted for a dead person? And does it matter if they died before or after the Electors vote?

Timrollpickering (talk) 02:20, 21 August 2020 (UTC)

as to the first question, no. As to the second, also no. As to the third, this is dealt with in the 20th Amendment. The votes are counted as they were originally cast. If the president-elect is dead, then the Vice president-elect becomes President.Arglebargle79 (talk) 22:56, 27 September 2020 (UTC)

Re the second questions, it seems to me that the answer is yes, as far as the Electoral Count Act (ECA) is concerned. Per 3USC§9, electors submit separate certificates for President and VP. This Act provides procedures for counting votes on those certificates. It is the procedures in the individual states which insure that P and VP votes are in lock-step by preparing state ballots which elect slates of electors which are in lock-step on the selection of P and VP. Re the third question, I think that you meant to say Amendment 25, not 20. Wtmitchell (talk) (earlier Boracay Bill) 10:30, 28 September 2020 (UTC)

Nope. the 20th is very specific on that. However, should the Vice President-elect become President, there would be a vacancy in the VP position, and this would be filled under the 25th amendment.

I think we are talking ar cross-purposes here. I think you are speaking of the provision of the 20th which says, "if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified". This, as I understand it, comes into play after the ECA has run its course and both the P and VP elect have been chosen under that act. I took the question to be about the ECA, as that is the topic of this article. Presidential failure to qualify, if there were one, would be recognized during action under the ECA

Incidentally, see also the 12th amendment which, as I understand all this, the ECA is meant to codify. That amendment says, "And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.". and also says: "The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, ...". to the extent that there is conflict between that and the 20th, the provisions of the 20th should prevail. Also, incidentally, see this; I'm not a lawyer and have not read that carefully, but my quick layman's reading did not find that to be entirely faithful to the sources I've mentioned previously (not that my layman's reading matters a whit). Wtmitchell (talk) (earlier Boracay Bill) 19:44, 28 September 2020 (UTC)

2020-2021

This is a heads up: The president of the United States just raised the possibility of using this to steal the election. In 40 days and 40 nights (give or take), this article may have to be revised on a constant basis. Arglebargle79 (talk) 15:25, 24 September 2020 (UTC)

This sounds like an editorial. Please explain how you would like the article edited. SMP0328. (talk) 02:37, 25 September 2020 (UTC)

I didn't raise the possibility, Trump did. WE should have the 2000 section followed by a 2020 section, as soon as the president disputes the election, which hasn't happened yet but is in the realm of possibility. Get ready and start thinking about it. In prior years when it's been invoked, such as 2005, when Ohio was disputed, we mentioned it. This is something that needs to be thought about. Most of the act is theoretical, as stuff as the "safe harbor" clause has never been invoked for obvious reasons. Just think about it for the next six weeks, then we can have a real discussion. Arglebargle79 (talk) 12:09, 25 September 2020 (UTC)

Apparently, the author of the Forbes article cited as a supporting source is humor-impared -- or believes that his readers are.[1][2] Wtmitchell (talk) (earlier Boracay Bill) 12:55, 25 September 2020 (UTC)

However, the Atlantic says it has been seriously discussed. Arglebargle79 (talk)

You didn't say what Arlantic article you saw that in, so I searched a bit.

• this Atlantic article, titled: How Donald Trump Could Steal the Election, raised this back on March 29. The points made there re, e.g., one side or the other using the COVID situation (or, I interject, the insane rioting) to manipulate the election and some States aiding in that effort may be valid, and they apply to either side in a close election.
• this recent Atlantic article speculated, "If the vote is close, Donald Trump could easily throw the election into chaos and subvert the result. Who will stop him?" There's a lot in there which could be discussed, and there's the details of the Electoral Count Act. It's not Trump who raised this, though, it's The Atlantic
• there are probably more Atlantic articles in this vein including, I guess, one to which you refer. Most of that goes beyond the scope of this discussion, though.

I take Trump's remark as tongue-in-cheek; I'm not sure about the source cited to support its mention in the article or any of the Atlantic articles.

I suggest that, if Trump's remark is to be mentioned in the article, it be put into context as an apparent attempt at sardonic humor. Wtmitchell (talk) (earlier Boracay Bill) 19:52, 25 September 2020 (UTC)

WP:NPOV, which says that we have to take him at his word. Also, the article in question:[3] gives genuine evidence, and as to the lawsuits and Trump's not conceding, it's all over the media. Arglebargle79 (talk) 13:20, 26 September 2020 (UTC)

The Forbes article I linked above links to this video. Trump's worde there are (my transcription):

... we can joke, we can play games, we can have fun; you can't have this guy as your president. You can't have [pause], Maybe I'll sign an executive order: You cannot have him as your president.

CSPAN has a better clip here. I am not following this on the internet, but it seems to me like a real stretch to interpret NPOV as requiring that this be interpreted as a serious statement of intent by Trump. Snopes says here that they are unable to figure out whether or not he was serious and are taking a wait-amd-see on this. My guess is that it will be a long wait. In any case, if this belongs any place on Wikipedia, it's not in this article. Wtmitchell (talk) (earlier Boracay Bill) 16:47, 26 September 2020 (UTC)

Like I said, this is a heads up. Start thinking that it is. On November 5, if Trump and his legion of lawyers start trying to shut down the vote counting, we must make this all about that crisis, and how the law's first major use (we should put the 2005 minor use in here), will unfold as it leads to either peace or civil war. Arglebargle79 (talk) 22:51, 27 September 2020 (UTC)

Prohibition or constraint on a current Congress by an earlier Congress

The article currently says, in WP's editorial voice, in the Certificate of final determination section: .. .Section 4 (now 3 U.S.C. § 15) prohibits Congress from .... Regardless of the topical details of the article at that point, I thought that it was a pretty well settled matter that no Congress can constrain action by a future Congress or, said another way, that any sitting Congress is free to ignore constraints placed upon it by laws passed by previous Congresses. My understanding or misunderstanding about that doesn't matter, but I don't think that a pronouncement involving that should appear in the article without citing a supporting source. I've placed a {{discuss}} tag pointing to this talk page section in the article at that point. Wtmitchell (talk) (earlier Boracay Bill) 12:47, 29 September 2020 (UTC)

Day fixed for apppointment of electors

The section on controversies states in part: "The provision applies if the state has provided, "by laws enacted prior to the day fixed for the appointment of the electors" – that is, through laws enacted before Election Day...."

On what basis does the writer equate Election Day to the day fixed for appointment of the electors? Please provide a reference. In fact, no state has this rule, and common sense dictates that you can only appoint electors a few days after Election Day.

Someone needs to look into this and change the text. Sooku (talk) 19:37, 15 November 2020 (UTC)

See the first paragraph of the article under Background / Electoral College. It quotes 3 U.S.C. 1, which makes clear that Election Day is considered to be the day of appointment. Dss16 (talk) 20:20, 16 November 2020 (UTC)

Constitutionality Section

I think the section at the bottom titled "Constitutionality" should be removed. Constitutionality is ultimately decided by the Supreme Court and since the Supreme Court has never taken up a case challenging the Act any section in regards to this is purely speculation. If the section was changed to "Controversy" as is used by many other articles it would be appropriate and more could be written to expand that stub. — Preceding unsigned comment added by TheBigRedTank (talk • contribs) 03:11, 17 December 2020 (UTC)

I added a quote from the reference in this section outlining the issues regarding constitutionality. 3 USC 15, the counting procedure, hasn't been tested in the Supreme Court. I think many people reading it for the first time would be shocked if they manage to decode it. According to the reference the research on this Act is very thin in addition to the lack of Supreme Court decisions. Many people must be wondering what is the underlying authority for the process and if it is legit or just an historical artifact. I felt a little more background could be useful, and the caption for the section invited it. Bluepost22 (talk) 21:20, 24 December 2020 (UTC)

• I agree that the section name ought to be changed as suggested The intro to the quote ought to be rewritten as well. ad the author is not notable (there is a short background summary in the cited source), and the quote put in the {{quote}} template. Wtmitchell (talk) (earlier Boracay Bill) 00:07, 25 December 2020 (UTC)

• I added block quoting and also balanced the POV with another quote from the cited ref. Yes, the author is not notable and not active in the field. However, the paper was reviewed by notables apparently (Tribe, Yoo, Katyal etc). It is an encyclopedic work and is by far the deepest research extant as far as is known (160 pages, 600 footnotes). Have left the section title as "Constitutionality" since that's what drew me to the page initially upon reading many incomplete media treatments of the process. One can read 3 USC 15 as allowing Congress with a simple majority in both houses to reject electors that have been certified by their states. That is the reading which will fuel the upcoming effort on Jan 6, 2021. Ironically, there seems to be little "controversy" about the Act as the author of the cited work, Vasan Kesavan, points out. Bluepost22 (talk) 20:13, 25 December 2020 (UTC)

I think the quote is a good start, but we should replace it with more of a summary. Several of these questions the article author answers in a way to dismiss the questions. I think that the main question -- accepted as an issue by Siegel, and even members of Congress at the time as well - is whether Congress can bind a future Congress. There are other questions -- like whether the president of the senate has the sole power to count, that I don't any sources calling it an open issue. And now there's a lawsuit about it... Chris vLS (talk) 23:59, 28 December 2020 (UTC)

The Gohmert v Pence lawsuit argues that the ECA is totally unconstitutional. Nobody likes this Act! I don't think the Gohmert lawsuit arises from serious scholarship, but if we're going to keep the addition by arglebargle then the objections of Gohmert to the ECA ought to be noted. I prefer quotes to summaries when possible because there are always errors in the translation. In my mind the biggest problem with 3 USC 15 is the idea that a bare majority in both houses can decide that electors are "not regularly given" and throw out their votes. So everybody can pick their favorite ECA issue but the quoted list seems like an efficient way to communicate the issues. Bluepost22 (talk) 17:10, 29 December 2020 (UTC)

The suit, linked here in what appears to this non-lawyer to be the filing, seeks an expedited declaratory judgment finding that the elector dispute resolution provisions in Section 15 of the Electoral Count Act, 3 U.S.C. §§ 5 and 15, are unconstitutional/. More relevant links listed in these google search results. Wtmitchell (talk) (earlier Boracay Bill) 19:35, 29 December 2020 (UTC)

The plaintiff filings for the suit included a long quote from Kesavan in addition to quotes from Stephen A. Siegel, "The Conscientious Congressman’s Guide to the Electoral Count Act of 1887," 56 Fla. L. Rev. 541, 551-56 (2004). Gohmert et al are *very* energetic in claiming the ECA is unconstitutional. They also claim that the 12th Amendment gives the VP complete discretion to basically do anything with the Electors. The suit was dismissed due to lack of standing but there is an appeal to the 5th Circuit underway. Bluepost22 (talk) 16:47, 2 January 2021 (UTC)

Better lead section

Reading the article, I think the lead would concentrate on the following, with proposed paragraphs in parentheses.

• (1) it is a law that establishes procedures for the counting of the votes
• (1) it was enacted in the wake of a crisis where the process broke down and led to a stalemate in Congress
• (2) it attempts to head off a future crisis by setting uniform deadlines and procedures for the states, so Congress' role is no longer so open ended
• (2) the deadlines came into play in Bush v Gore and 2020, but the counting process hasn't
• (3) it is possible that it is unconstitutional
• (4) Interestingly, over the years, the Vice President has frequently presided over the certification of his defeat

Things that seem less notable:

• that is was codified
• commentary on the drafting or specific scenario ambiguity
• the DC addendum

Thoughts?

Chris vLS (talk) 21:51, 20 December 2020 (UTC)

I have made the changes proposed above, please improve it! Chris vLS (talk) 23:19, 28 December 2020 (UTC)

On the word "Counterfeit"

I'd like to open a discussion on the characterization of the alternate 2020 electors mentioned in the Hawaii section. @Wtmitchell: objected to the description of the electors' certificates as "Counterfeit". I personally don't prefer the word "counterfeit" but I think it's important to include that these electors have no legal authority and weren't authorized by anyone (not governors, not officials, not state legislatures). I can cite more sources corroborating this if you'd like. Please let me know your thoughts. Herbfur (Eric, He/Him) (talk) 17:27, 21 December 2020 (UTC)

I used the term "counterfeit" because they were. Something purporting to be real, but isn't is a counterfeit. Gucci handbags, for example. Back in the day (a year ago, just before Covid struck), you could get counterfeit bags at 90% off the genuine article at all sorts of places. These certificates have been sent to the six offices the genuine ones were supposed to be sent to purporting to be so. This is election fraud. However, under the Hawaii precedent, they want someone to think that if and when some judge disenfranchises millions upon millions of people, these bogus documents will be accepted as real, or that Pence will count these and the Dems won't notice. Yeah, counterfeit is the right word.Arglebargle79 (talk) 17:59, 21 December 2020 (UTC)

How about "uncertified"? There may not be support for that, but expecting for such support is expecting support for a negative. I think there have been past cases where one official has certified one slate and an official of another body has certified a different slate; it's reasonable to presume, though, that that would be supportable. Unless refuted with such support, "uncertified" seems reasonable to presume.. Wtmitchell (talk) (earlier Boracay Bill) 00:08, 22 December 2020 (UTC)

While you're correct that they're uncertified, an uncertified slate of electors is as good as worthless. It claims to have legal weight that it doesn't have. I'm afraid Arglebargle79 has a point here, these are technically "counterfeit" electors. The Merriam-Webster Dictionary defines the word, "Counterfeit" as " made in imitation of something else with intent to deceive", and I find that definition to apply. The fake slate of electors imitates the real slate and is intended to mislead Congress into accepting these electors, rather than the legitimate, certified electors. My concern is that "uncertified" might not fully convey that these electors have no legal authority and are essentially fake. I'm leaning towards "counterfeit", but I'm more than willing to consider other suggestions.

You are probably correct in practice, but that judgement is not in the hands of a Wikipedia editor to make and predicting the future is not up to the judgement of WP editors. As I understand the procedure, in order for an objection to an electoral ballot received for counting to be recognized, that objection needs to be made during the counting of ballots by at least one member of each house, and then each body would vote separately on whether or not to count the objected-to ballot(s). Wtmitchell (talk) (earlier Boracay Bill) 00:58, 22 December 2020 (UTC)

I'm not saying anything about the future, I'm simply stating the fact that these electoral slates are fraudulent in nature, have no legal authorization, and by definition qualify as counterfeit. It doesn't matter what Congress does, a fake electoral slate is a fake electoral slate. Herbfur (Eric, He/Him) (talk) 01:17, 22 December 2020 (UTC)

I see that you have overridden my contribution to the article removing the word counterfit while this discussion is in progress. That removal technically put the two of us into an edit war regarding this, as I understand the lead sentence of EW (including the clarification as an invisible comment in the wikitext there). I ask that you undo that edit and let this discussion proceed without it but, to minimize disruption to the article, I will not participate in an edit war over that.

I also see that your user page declares that you are passionate about politics and that it contains anti-Trump content (e.g., a userbox saying "This user believes that the election of United States President Donald Trump was a HUGE MISTAKE"). I ask that you put all that aside and continue from this point with a neutral point of view.

You argue, as I understand it, that ballots submitted by uncertified electors as mentioned in the Whose Electors? section of of this source "by definition qualify as counterfeit". I am not sure what definition you are using to qualify them, but I see that this WP article says, "Counterfeit products are fakes or unauthorized replicas of the real product." and that this online definition says that the word counterfeit used as an adjective describes its referent as "made in exact imitation of something valuable or important with the intention to deceive or defraud." Those are not good descriptions of the ballots we are discussing here. I earlier suggested that the term uncertified be used instead of the term counterfeit. I still think that is a reasonable solution to this and still suggest it. Actually, I'm not sure whether it is the ballots which are subject to certification or the electors submitting the ballots -- but that detail probably need not matter here and may vary state-by-state. I don't think that detail is important here, and "uncertified ballots" is probably sufficient unless that detail becomes an issue. Wtmitchell (talk) (earlier Boracay Bill) 11:02, 22 December 2020 (UTC)

If you look in the revision history, I never undid your edit regarding the word "counterfeit" so I'm not sure why you're under the impression that I did? I saw your first revert and I didn't understand why you performed the revert so I undid it and asked you for a reason. When you objected to using the word, "counterfeit", I deliberately opened this discussion before doing anything with the article, it was another editor who undid your revision. And while I've never been a fan of Trump, that's not germane to the subject and my position is based on the law, which is simply that these electors are unauthorized. It doesn't matter if one likes or dislikes Trump, the law is the law and these are not authorized electors. Again, I did not propose the word, "counterfeit" and it still doesn't sit right with me. But I understand that the word could be applicable in this context. I just know if it's really the best word to use. Herbfur (Eric, He/Him) (talk) 14:30, 22 December 2020 (UTC)

"Uncertified" gives the impression that there's some sort of validity to them. There isn't. The alternate electors are trying to pass them off as real as part of a conspiracy to overthrow the election results. "true copies" have been sent to the National Archivist, and they have not been put up on the website while the real ones have. Thus they have been deemed counterfeit. Arglebargle79 (talk) 12:14, 22 December 2020 (UT:::::I've done a little further reading in 3 USC §5, 6, 9, 10 and 11 regarding the detail I mentioned above. My understanding from that is that neither counterfeit certificates nor uncertified certificates is correct. Electors are required to "make and sign six certificates of all the votes given by them" and to send these certificates made and signed by them along with a duplicate original of a "certificate of such ascertainment" prepared by the state governor (certifying his ascertainment of their appointment as electors) by registered mail to the Archivist of the United States. Separately, and not at issue here, the governor is required to have sent the original certificates of ascertainment to the archivist and also to have notified the archivist of any controversy regarding the appointment of electors. Electors who have not been ascertained as certified will have sent certificates made by them to the archivist but presumably without the needed duplicate originals of certificates of ascertainment. I doubt very much whether any electors will have sent counterfeit certificates of ascertainment but, if they have, it is those certificates which will have been counterfeited -- not the voting certificates made by the electors.

So, as I understand it, what we are discussing here is votes made by electors who have not been ascertained by their state governor as having been appointed. These votes will be in the hands of the archivist alongside of the votes of electors who have been ascertained as having been appointed and who have submitted, along with the vote certificates made by them, duplicate originals of their certificates of ascertainment confirming that. It is not the task of the archivist, however, to determine which votes should be counted and which votes should not.

Presumably, objection will be raised during the counting to votes not accompanied by the required duplicate original certificates of ascertainment being counted. However, at the point under discussion here in this WP article, what is needed is a proprer term to describe the votes which the electors lacking ascertainment are said to have submitted.

Having discarded counterfeit certificates and uncertified certificates, I now suggest the term improper votes. I mean the term votes there to refer to the item sent by registered mail to the archivist by the elector; votes which are missing the required duplicate originals of the certificates of ascertainment being described there as "improper". If needed, the article could include a clarifying footnote explaining all this to some extent (one hopes that will not be needed). What say you to improper votes? Wtmitchell (talk) (earlier Boracay Bill) 13:58, 22 December 2020 (UTC)

improper votes is OK with me. I would suggest perhaps invalid votes, I feel like that might be a better word in this context. Herbfur (Eric, He/Him) (talk) 14:30, 22 December 2020 (UTC)

improper votes is OK with me at this point as the article currently stands; I think that is reasonable as an unsupported summarization in Wikipedia's editorial voice. I don't think invalid votes would be, as the body with competence to adjudge their validity has not yet met (its components do not yet exist, actually, and will not until January 3). I'll make that change if I don't see soon that you have made it and if no other relevant change intervenes. Wtmitchell (talk) (earlier Boracay Bill) 15:16, 22 December 2020 (UTC)

Fine by me. I'll hold of on changing anything until @Arglebargle79: comments but you can make the change now if you want. Thanks for your understanding. Herbfur (Eric, He/Him) (talk) 15:26, 22 December 2020 (UTC)

Thank you for the consideration. I appreciate it. But counterfeit is not NPOV. The "alternate electors" tried to pass these things off as real. In 1960-61, Hawaii sent a second set of certificates, which were ascertained by the State issued to be correct and legitimate. No government agency has done that in this case. Thus, a falsely issued document passed off as real is a counterfeit. So Keep it as is, please.Arglebargle79 (talk) 16:37, 22 December 2020 (UTC)

Alternate proposal. I don't think counterfeit is correct, as a counterfeit is a replica. The alternative slates are rivals, claiming legitimacy, which is different. A counterfeit prince is one who says, 'No, I'm the real Prince Harry, he's an imposter" as opposed to a prince who claims "I'm the previously unknown Prince George, and I come before Harry in the line of succession." Similarly, "improper vote" seems too credulous. WP:RS sources -- and the ECA -- treat these certificates as having the legal force of a scribble on a cocktail napkin. Sorting this out is what the Act is for, so I think a little more coverage is warranted. What about the following:

In 2020, several Republican groups cited the Hawaii precedent and held putative ceremonies to name self-styled "alternate electors" for Donald Trump. The ceremonies and electors, however, were not authorized by their respective state governments, attached to the electoral process in any way, or certified under the processes laid down by the Act. Observers, including the conservative National Review, have described these electors as "extralegal," "bizzaro," and "hav[ing] no actual significance"

Thoughts? pinging: @Wtmitchell: @Herbfur: @Arglebargle79: Chris vLS (talk) 21:19, 22 December 2020 (UTC)

I've put you proposed rewrite in a box because if this continues much longer it would be difficult to distinguish by indent level alone -- I hope you don't mind.

I'm OK with a rewrite, but I disagree with several parts of this:

• I think your assertion about the ECA treating these as if they have the legal force of a wet napkin is off. I've looked at the actual 1887 ECA as proposed, but I admit that I have not read it carefully -- trying to do that gave me a headache; see it here.From what I glean bu reading interpretations of it by others, it does not treat any submissions purporting to be electoral votes differently from any others -- it just says that they are sent to the archivist, who passes them to the joint session of the incoming congress for counting. It also sets procedures for the congress to raise and recognize (or not) objections raised and to resolve them. I guess that could be equated to wet napkin scribbles, but it would apply to all submitted votes equally as far as the ECA goes.
• the ECA does not mention or in any way require or recognize any ceremonies. Some ceremonies have been held this year (and, possibly, in other years), but that's a don't-care as far as the ECA is concerned.
• electors are not "authorized" by state governments, their appointment for the U.S. State "by such Manner as the Legislature thereof may direct" s "ascertained" by the governor of the state.

Writing the foregoing, it occurs to me that I have been relying on the interpretation of the ECA which is codified in 3 USC as representative of what the ECA actually says. Perhaps that needs to be revisited. Wtmitchell (talk) (earlier Boracay Bill) 22:51, 22 December 2020 (UTC)

Good points. This act is difficult to interpret. Fortunately, the main question is what do reliable sources say about the alternates and does my proposed test accurately present that? I think it does. To take your specific points: The Constitution delegates the time and manner determination to the legislatures, but these alternate electors have no claim to have followed the prescribed time and manner. This is what the sources says about the alternate "electors" (setting my napkin comment aside). I used "ceremony" because you can't say they "voted" their electoral votes in the EC, because they have no colorable claim to be electors. The act lays down procedures of the states making a "final determination" by the safe harbor deadline and for the governor documenting this. Since none of the alternates have any of that, the act doesn't treat them the same as the ones with the governor's signature. Indeed 3 USC 5 is clear that the timely determination made by the state under the laws before the election "shall be conclusive, and shall govern in the counting of the electoral votes" -- so the Act most certainly does distinguish between these "alternate electors" and the ones in the final determination as ascertained, certified, and transmitted by the governors. Also, in the case of a dispute between the houses, the ECA directs that these alternates would be rejected. In fact, the whole history of the Act is to set rules that give priority of the state-determined votes over a wet napkin (setting aside for the moment on the ability of Congress to bind Congress).

That said, you are correct that the president of the Senate does open all papers (even napkins) purporting to be votes. I imagine that the counting process will have to consider these papers. But that's my interpretation, I don't have a source that says this.

So, I agree that "authorized" may be the wrong word... Perhaps that sentence could read "The ceremonies and electors, however, were not attached to the electoral process in any way nor included in the "final determination" of electoral votes as described by the Act."

Thanks for engaging, appreciate everyone working on this article. Chris vLS (talk) 04:50, 23 December 2020 (UTC)

That might work...Arglebargle79 (talk) 11:36, 23 December 2020 (UTC)

That sounds OK in general to me. I've been driving this here and I'll try to stop doing that and let others finalize this along the lines suggested. I will mention, though, the Hawaii in 1960-61. section of this article (does that period belong in the section header?) and the 1960 United States presidential election in Hawaii article. As I understand it, the Hawaii Democrat electoral slate then, though not ascertained/certified as electors, submitted "counterfeit / uncertified / improper" (pick a term) votes to the archivist as some Republican electoral slates are doing in 2020, and those votes were accepted for counting (on the recommendation of Nixon and/or because of the rushed submission of a certification/ascertainment intended to supersede the one submitted earlier after a late re-count in Hawaii). That seems not too dissimilar to what we have been discussing here. (I was 18 at the time -- too young to vote) Wtmitchell (talk) (earlier Boracay Bill) 13:21, 23 December 2020 (UTC)

I would agree that the alternate electors in the Hawaii case didn't have any real consequence until the recount was finished. Had the recount gone the other way, the president of the Senate would have likely opened them and ruled that they didn't have the required seal and signature and ignored them Chris vLS (talk) 21:39, 23 December 2020 (UTC)

I have made the change, added some additional sourcing. Thanks again. Chris vLS (talk) 19:54, 24 December 2020 (UTC)

I have evidence that the counterfeit certificates were passed off as real on at least one occasion. Arglebargle79 (talk) 13:23, 26 December 2020 (UTC)

References

Better image?

The Newsweek magazine is dominated by Nazi flags. I had to stare at it for a long time before I could see what it had to do with the article. And the quality is not great. Thoughts? Anyone know how to find public domain images of Nixon, Gore, Quayle presiding? 2600:1700:9582:2040:209C:5B6E:9F58:3E2 (talk) 18:47, 23 December 2020 (UTC)

You make a good point, I've cropped the image to focus on the counting specifically. Zoozaz1 talk 18:51, 23 December 2020 (UTC)

Thanks! Chris vLS (talk) 20:02, 23 December 2020 (UTC)

Thanks!!Arglebargle79 (talk) 13:19, 26 December 2020 (UTC)

Alternate electors and final determination.

I wanted to explain my citation for the sentence

Some of these purported electors were not attached to the electoral process in any way,[8][49] nor included in the "final determination" of electoral votes as described by the Act.

I cited the National Review article, because it says:

2. None of the “alternative” electors has been appointed by any legitimate organ of state government, while all of the slates of popularly chosen electors have been certified by their respective state governors (or, in the case of D.C., the mayor). Most of the slates openly acknowledge that they will have no legitimacy unless a court rules in their favor.

3. Every state but Wisconsin settled on electors within the statutory “safe harbor” deadline under the Electoral Count Act of 1887, which under the law is conclusive if there is no other competing state-certified slate.

The "final determination" Under the Act is what Bush v. Gore refers to as the "safe harbor." So I take point 2 above to mean that the alternate electors are not the ones named in point 3. I propose a better sentence:

None of these electors was certified as electors by their state governors, nor appointed as an elector by any organ of state government. (NR article) Moreover, all states except Wisconsin certified their results by the "safe harbor" deadline,[4] which under the Act is "conclusive."(3 U.S.C. § 5) None of those certifications have included these alternate electors.(NR article).

@Wtmitchell:... thoughts? Chris vLS (talk) 00:47, 29 December 2020 (UTC)

I like your proposed replacement sentence, but it might be better if tweaked to say None of these electors was appointed as an elector by any organ of state government or certified as electors by their state governors. since the certificate of ascertainment issued by the governors identifies the electors appointed by the state. I think there is a stronger argument in favor of counting votes of uncertified electors who were candidates during the popular election (and thereby have participated in the process) than votes of uncertified nonparticipants, and I think that it is up to the individuals doing the counting to decide whether to object and how to vote re what votes to count. I also agree with the argument that no Congress is bound by requirements laid by a previous Congress (even if the requirements have been promulgated into law and codified as statutes). I've put that badly, though, and it can get messy, and my opinion about that is not well informed and does not carry any weight. Wtmitchell (talk) (earlier Boracay Bill) 08:56, 29 December 2020 (UTC)

I like it. Adding it now. Chris vLS (talk) 20:45, 31 December 2020 (UTC)

The status of the alternate "electors" -- there is no source that says they were picked by the legislatures

User:Lawprofessor1957 proposed adding the following text.[5] It was reverted by User:Zoozaz1.[6] I support the reversion and would like to memorialize why here and if there is not a consensus, to find it here.

In 2020, several states submitted alternate slates of electors to Congress. These alternate slates of electors - under putative authority of their respective state legislatures - were submitted in protest of electors selected by popular vote and certified by the governor of the various states. The claims being made in each state by the legislatures in selecting these alternate slates of electors were due to various reported inconsistencies and irregularities in the voting processes including multiple claims of fraud, ineligible ballots, and in some cases claims of actual vote tampering on massive scale - both electronically and by means of ballot manipulation or manufacturing. After multiple failed and some ongoing suits alleging such claims in the various states, legislatures sought to protect their rights by proffering these alternate slates of electors by the safe harbor date.

First, of course, there are no citations. But one could certainly find citations that summarize the claims made by the so-called alternate electors.

More importantly, I think the reversion was correct because, in every sentence, the proposed text describes the "states" or the "legislatures" making these claims or giving some kind of blessing to these alternate electors. This is not true, and our sources flatly say so. The National Review -- a conservative journal -- article enumerates how none of the alternate slates have been appointed by their legislatures. Some have been flatly disavowed by the legislature's leaders. Some were even denied entry into the building. To quote the NR article:

• In Arizona, in a meeting chaired by state Republican Party chair Kelli Ward, the Republican electors invoked Hawaii in 1960, when Democratic electors cast votes that were later certified by the state’s governor when a state recount went their way. The Arizona electors’ votes are thus explicitly a placeholder for a subsequent legal proceeding, with no current status. Meanwhile, an additional slate of individuals claiming to represent the “sovereign citizens of the Great State of Arizona” sent their own, notarized pro-Trump votes to the National Archives with no apparent governmental or party involvement.
• In Georgia, the state Republican Party chairman tweeted, “Becau. se the President’s lawsuit contesting the Georgia election is still pending, the Republican nominees for Presidential Elector met today at noon at the State Capitol today and cast their votes for President and Vice President. Had we not meet [sic] today and cast our votes, the President’s pending election contest would have been effectively mooted. Our action today preserves his rights under Georgia law.” These, too, are merely conditional placeholders. President Trump demanded on Monday that the governor convene a special session of the legislature, implicitly acknowledging that the alternative electors are not legally sufficient to overturn the outcome.
• In Michigan, the Republican heads of both chambers of the legislature have publicly affirmed that Biden won the state’s popular vote. The alternative electors were escorted by some individual lawmakers, but they were not even permitted to enter the state capitol to meet, thus underlining the fact that they did not cast their ballots in conformity with federal and state laws regarding the location of casting electoral votes.
• In New Mexico, a state Trump lost by 100,000 votes and more than 10 percent of the popular vote, the state party’s press release also invokes 1960 in Hawaii and “legal proceedings arising from the November 3 presidential election” that “continue to work their way through our nation’s judicial system.”
• In Nevada, the electors were hosted and led by the state party chairman, in an outdoor event streamed on YouTube from the state’s capital of Carson City. This was, as local media noted, “not a state-sanctioned electoral vote,” and the Republican secretary of state declined to comment on it.
• In Pennsylvania, the state Republican Party announced: “REPUBLICAN ELECTORS CAST PROCEDURAL VOTE, SEEK TO PRESERVE TRUMP CAMPAIGN LEGAL CHALLENGE,” and again invoked Hawaii in 1960. The state’s press release is explicitly conditional pending further lawsuits: “The conditional resolution states that electors certify their vote for the President and Vice President ‘on the understanding that if, as a result of a final non-appealable Court Order or other proceeding prescribed by law, [they] are ultimately recognized as being the duly elected and qualified Electors for President and Vice President of the United States of America from the State of Pennsylvania . . .’”
• In Wisconsin, yet again, the Republican Party chair stated that the electors were voting to “preserve our role in the electoral process with the final outcomes still pending in the courts.”

It would be a HUGE deal if a state legislature took an official act blessing these alternate slates. If it were true, I think it would be easy to find a source. Until then, I think the current text is fine. @Wtmitchell: @Lawprofessor1957: @Zoozaz1: @Arglebargle79: Thoughts? Chris vLS (talk) 00:13, 30 December 2020 (UTC)

But there isn't any. The simple fact is, is that the alternate electors issued counterfeit certificates, and the courts have not agreed to validate any of them, nor has any legislature voted to validate them. Arglebargle79 (talk) 11:09, 30 December 2020 (UTC)

The electors slated as (R) who submitted ballots without accompanying certificates ascertainment from the state governor in 2020 after their candidacies were defeated in the popular election in their respective states did the same thing there as the electors slated as (D) did in Hawaii in 1960. The incoming congress will rule in a special session on January 6 or soon thereafter on the validity of electoral ballots that have been submitted. Wtmitchell (talk) (earlier Boracay Bill) 12:14, 30 December 2020 (UTC)

NO one objected in 1961. Yeah...the Democrats control the House, and enough Republican senators have stated they will support the Biden electors to make the whole thing moot. This whole thing is a pipedreamArglebargle79 (talk) 12:26, 30 December 2020 (UTC)

The number of uninformed, badly informed, or misinformed individuals with strong points of view and no say whatever in the counting of ballots expressing their POVs matters not at all. Ditto POVs expressed prior to the counting by individuals who will be participants in the counting process, What matters is the counting results on or shortly after January 6. I won't presume to predict the future.

This has strayed from the point of not only this talk page section but of this talk page overall, which is to work collaboratively towards improvement of the article. What matters re the 2020 election article section is significant relevant developments in the balloting and counting process, and those developments are still developing. I think that the 2020 election section is too long, flouts WP:NOTNEWS re breaking stories (and this story is still breaking, but slowly), and is currently out of control. I think that it will be possible to bring it under control after January 20, 2021. I think that some of the detail now in the section will be removed subsequent to that date -- probably removed slowly as time passes and the 2020 election fades into the past. I think that some of the detail which will end up being removed from that section probably ought to appear in some form in the 2020 United States presidential election article.

In the meantime, I think that it would be a good idea to reduce the content of the 2020 election section to a minimum, saying that the balloting and counting process will be underway until January 6, 2021 or shortly thereafter and referring readers to the 2020 United States presidential election article for further information in the interim. Wtmitchell (talk) (earlier Boracay Bill) 14:58, 30 December 2020 (UTC)

Just to add on, during the counting process, Congress has to open any documents purporting to be electoral votes, no matter if they're legitimate or authorized by state laws or not. Per AP and the text of the act itself, any slates deemed illegitimate will have to be manually tossed by Congress. So I think the key points we need in that section are: 1)Republicans appointed "alternate electors" aiming to use the Electoral Count Act in their favor 2)Congress will count all the votes on January 6th and decide which electoral votes are legitimate and which are not, and 3)Whoever gets a majority of the counted votes will be announced as winner by Vice President Mike Pence and sworn into office on January 20th. Thoughts? Herbfur (Eric, He/Him) (talk) 16:45, 30 December 2020 (UTC)

Minor correction: it's not a majority of the counted votes; the threshold is 270 votes ("a majority of the whole number of Electors appointed", per the 12th Amendment, and votes with accepted objections are not counted). The ECN has provision for dealing with the case of no candidate having a majority, of course. Wtmitchell (talk) (earlier Boracay Bill) 19:16, 30 December 2020 (UTC)

I think with today's news that there may be a historically unprecedented use of the objection, we should handle the 2020 events differently. My thoughts are that 1) 2020 should be in a different section, I hear you on NOTNEWS, but it is already a major notable event in the history of the Act, and it presupposes conclusions of law that we are in a multiple return scenario... one could argue it is only the multiple return scenario if multiple returns are signed by the governor or other organ, 2) we should mention the Hawley announcement, 3) we should strike the Sidney Powell reference which is not notable in the history of the Act and barely a lawsuit. Thoughts? @Wtmitchell: {ping|Herbfur}} @Arglebargle79: Chris vLS (talk) 20:58, 30 December 2020 (UTC)

What do you see as unprecedented? It has been reported here, here and elsewhere with imprecision and with what I take to be some garble re procedure that Senator Hawley intends to offer objection(s). I haven't seen details of what, specifically, Hawley intends to object to and how he plans to couch his objection(s). There have been reports of others involved speaking of objections, I think. None of that has happened yet, though, and objections to electoral votes and debates about them aren't unprecedented. It would flout mandated procedures for objections to be decided in the joint session without a breakout for debate and vote by each house separately, but I take it that happened re Hawaii in 1960. If that happened in 1960, its happening in 2020 (if it does) wouldn't be unprecedented. What am I missing?

I don't know about conclusions of law and multiple return scenarios WRT the ECA. As I understand it, the ECA concerns ascertainment of proper appointment of electors, voting (by electors and/or by others representing themselves as electors), recognizing objections to votes (one objecting member of each house required), resolving such objections, counting votes not removed from counting by accepted objections, choosing President and VP based upon counting results, and dealing with failure to choose based on counting results.

Re Sidney Powell, I only see mention of her in the 2020 election section and, as I've said above, I think that pretty much everything currently in that section is premature and/or not directly related to the ECN, and that that will all work itself out in the article after January 20. Wtmitchell (talk) (earlier Boracay Bill) 23:00, 30 December 2020 (UTC)

The RS coverage does treat what is happening this cycle as notable. We've only had one actual senator+rep objection (by Boxer?) I think? And that was obscure and got little RS coverage and could not have changed the result. Now we have a candidate/president openly lobbying to use the counting process to change the result from the result currently accepted by RS and leaders of both parties to be the legitimate result of the election. I won't have time to work on it for a while. Chris vLS (talk) 23:05, 31 December 2020 (UTC)

Also, thanks for keeping me honest, I thought that Hawley had alleged fraud as the reason for objection (which would make it more like 1877 than any other cycle since)... your comments made me look harder and realize that's not quite it... Chris vLS (talk) 23:07, 31 December 2020 (UTC)

Remember, as to the problems in 1961,'69, and 2005 they were mostly minor protests or technical glitches. 1961 was probably decided beforehand. This is a technical act governing a Pro-forma ceremony. A year ago, the act was barely notable, trivia. Yeah, there was the lobbying of electors in 2000 and 2016, and in the latter case, it backfired spectacularly. The ceremonies in 2000, '04, and '16 had some histrionics. To a small extent, the Republicans may want revenge for that, but I digress...

The act is like the Third Amendment. It is non-justiciable. That is why prior to last week, we had to use the arguments of obscure law journals to discuss it's constitutionality. That's over now. The Gohmert case, silly as it is, is going to be THE statement on the subject, just as Engblom v. Carey is the definitive opinion on the 3rd amendment. Without getting into a long rant on an empowered crybaby and his enablers, we have to get back to brass tacks, and here it is:

The thing about WP:Crystal is that it precludes magic. Having Trump win the election by somehow excluding the electoral votes from Seven states (I have read that they're even including New Mexico at this point) is magical thinking. You will have to convince half the Democrats in the House that the election was rigged. The vast number of House Democrats publicly hate Trump's guts. This is a published fact.

As to multiple returns. There aren't any. If you go to the article, there's a section on the National Archives. The NA holds the certificates and makes the preliminary determination whether they are legit or not, via the markings on the envelopes. They will NOT send the counterfeit certificates to Pence on Wednesday. Is this WP:Crystal? No. they have said so [7].

Trump wants a historically significant circus on Wednesday and he will get one. That should go in the article. However, there will NOT be any change to the result unless there are enough Marines willing to arrest Congress, and if that happens, it will be the subject for a whole different article.Arglebargle79 (talk) 13:08, 1 January 2021 (UTC)

This is my second try at this request, redoing the earlier attempt, which I screwed up.

I tried to follow your link above following "No. they have said so", but it seems to be a dead link. Searching for clarification, I found § 15 on page 12 of this document on the archives.gov website. That says in part, "tellers [...] shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes." It is not clear to me whether items (apparently still unopened at this point) received by the archivist apparently coming from from persons not named in separately received certificates of ascertainment as electors would be considered papers purporting to be certificates of the electoral votes, but it seems to me they might be. I note that votes from the (D) elector candidates uncertified as electors from Hawaii in 1960 would have been such items, and I also note that this document from which I have quoted is titled, The 2020 Presidential Election Provisions of the Constitution and the U.S. Code. I'm wondering if/where further clarification re this might be found. Wtmitchell (talk) (earlier Boracay Bill) 16:17, 1 January 2021 (UTC)

oops! Let's try that one again, shall we? [8] Pretty pictures of the covers of each certificate! and not a single counterfeit. If they accepted all alleged certificates, then next time, there would have to be one from Arkansas for DEEZ NUTS in '25. Arglebargle79 (talk) 16:45, 1 January 2021 (UTC)

Quoting the content of the Notes row at the bottom there: "* presumptive; based on reported Certificates of Vote"

The process of deciding what votes to accept begins on January 6. I'm not arguing that the final result will differ from this, I'm just saying that this is not definitively final. In the session beginning on January 6, some of these votes may be objected to; if there are objections from at least one member of each house of Congress, there will be votes in the individual houses on whether to accept the objection; if both houses vote to accept an objection, the objected-to votes will be excluded from counting; unles something unanticipated happens, which could lead to unanticipated results. I won't presume to predict the future. . Wtmitchell (talk) (earlier Boracay Bill) 19:53, 1 January 2021 (UTC)

@Wtmitchell:@Arglebargle79:I'm sure you two have now heard what happened with the Counting of Electoral Votes the other day. I hope you both are safe and well. I want to bring up the argument that Arglebargle79 brought up on New Year's Day. Arglebargle79 argued that there wouldn't be multiple returns introduced in the count because the National Archives' website with the electoral vote certificates showed only one certificate of electoral vote. During the Count, each state only had one slate of electors introduced, with no "alternate electors". I propose that we make this a precedent, to use the National Archives' listing of electoral vote certificates to determine what electors are in the count and whether multiple returns exist. Herbfur (Eric, He/Him) (talk) 15:33, 8 January 2021 (UTC)

I'm fine; I wish you likewise. When you say "I propose that we make this a precedent", I'm not sure who "we" refers to or just how such a precedent might be made. If you are proposing that the ECA be amended in that manner, that should be proposed in a more appropriate venue. If this is a suggestion for improvement of this article, please clarify. Wtmitchell (talk) (earlier Boracay Bill) 17:58, 8 January 2021 (UTC)

I mean that in the future on Wikipedia, when there are claims of competing slates of electors, we should defer to the determination of the National Archives in determining what information to include in articles, and if there are actually legitimately multiple slates of electors. Herbfur (Eric, He/Him) (talk) 18:09, 8 January 2021 (UTC)

Do you have source supporting the assertion that such a determination is made by the National Archives? The best source I've found relating to that is page 373 here, near the bottom of which are instructions reading: "... to whom shall be handed, as they are opened by the President of the Senate, all of the certificates and papers purporting to be certificates of the electoral votes, ...". That source I'm citing is a primary source, and it is dated 1887, and it may be out of date. However, that is the best source on this I have seen. As a WP editor, I am not supposed to rely on my own interpretation of a primary source, but "purporting to be" there does suggest to me that the papers being described might possibly include papers which are not actually electoral votes. I think that you are saying that the archivist, on his own authority, filters papers purporting to be electoral votes according to some criteria which he applies, and only passes papers which pass his filtering to the President of the Senate. That seems to be a not uncommon presumption, and it may be true in practice, but I have not seen a reliable source supporting that. Perhaps I've just missing finding such a source. Can you (or anybody here) identify one?

(added) I just checked 3 USC § 15, which is a bit later than that page from the 1887 Congressional Record that I quoted from earlier, and I see (quoting) :"all the certificates and papers purporting to be certificates of the electoral vote", which I take to be similar to the language in the 1887 source. Wtmitchell (talk) (earlier Boracay Bill) 20:54, 8 January 2021 (UTC)

This 2004 secondary source, cited in the article, speaks to the possibility of fraudulent votes being received, and how to deal with that possibility. On page 603, it says, "There was, after all, a strong sentiment in Congress that ultimately the ECA could not constitutionally bind a Senate and House that concurred in refusing to count particular electoral votes." As I understand it, authority to decide not to count papers purporting to be electoral votes rests with the houses of congress. Wtmitchell (talk) (earlier Boracay Bill) 19:42, 8 January 2021 (UTC)

@Wtmitchell:Yeah, honestly, the wording of it is confusing because I held the same interpretation as you did, that only Congress can determine which votes are and aren't legitimate. However, it appears that, this year, the National Archives intervened and filtered out certain votes, evidenced by the fact that no "alternate electors" made it into the official count. But yes, I haven't seen any citations to back the National Archives holding that power. Perhaps we could mention that the National Archives, which I believe is responsible for gathering the certificates of votes and presenting them to Congress, only presented the certified slates to Congress in 2021, but say nothing about whether or not this was a precedent. Herbfur (Eric, He/Him) (talk) 16:24, 11 January 2021 (UTC)

I agree (kick that can of worms down the road instead of opening it), presuming that there is a citeable supporting source with info on what elector votes were (and, explicitly or by reasonable implication, were not) submitted to the joint session by the archivist. I have not really searched, but I have not seen such a source. 2601:586:8103:FB0:397E:AA7A:B24:47F2 (talk) 16:37, 11 January 2021 (UTC)

Clarification: when I wrote "elector votes" above, that was meant as shorthand for "papers received by the archivist purporting to be elector votes". Wtmitchell (talk) (earlier Boracay Bill) 18:46, 11 January 2021 (UTC)

Multiple Electors/Slates/Returns

First, I want to expose my bias. I voted for Biden, and I think he is the properly elected president. Now onto my effort to improve the article. I would argue that the weakest part of this article is how it deals with multiple slates. I know what happened in 1876, but what are multiple slates in the modern context, or even in the post-1887 context? Some might immediately say Hawaii 1960, but I disagree. Specifically, the Electoral Count Act says "in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed...". Clearly this is not Hawaii, since in 1960 there was one consistent state authority that submitted one slate before safe harbor day and then the corrected slate later. The state authority was consistent throughout. So what is dual state authorities in the modern context? Is it a repeat of the 1876 situation in Louisiana, Florida, and South Carolina? Or is it something different? Could there ever truly be multiple slates submitted in the modern context? To use the current election as an example, could Republican state legislators in say Arizona declare themselves to be the proper state authority (due to claimed election irregularities), and thus submit an alternate slate that they claim is certified by the state (i.e. themselves)? I have been searching for sources that would answer these questions, but I have not been very successful. The best I can figure out is that the current Electoral College Act does indeed envision a repeat of 1876 when it talks about multiple slates. This is important because, in the case of multiple slates, if the two houses of Congress disagree, then the electoral votes for that state are thrown out. Thus a single house of Congress (e.g. the Senate) can conceivably take enough electoral votes away from the winner to force a contingent election and potentially overturn the winner of the election. --Westwind273 (talk) 15:40, 3 January 2021 (UTC)

If I understand your question correctly, in that situation I think the governor's certification would be the deciding factor in the case of multiple returns. Zoozaz1 talk 18:39, 3 January 2021 (UTC)

If I understand your question correctly, I disagree with your conclusion. As I understand it, one house cannot decide to take votes away from a presidential candidate (not from "a winner", since no winner has been chosen at that point). It takes agreement of both of the houses to accept a properly raised objection and disallow the objected-to vote(s).Individual members of either or both houses might or might not consider the governor's certification to be the deciding factor. (updated) Wtmitchell (talk) (earlier Boracay Bill) 23:43, 3 January 2021 (UTC)

I would refer you to the sections in the current article “Multiple returns” and “Scope of the governor’s tiebreaker”. As shown in the “Scope of the governor’s tiebreaker”, there is debate as to whether the governor’s tiebreaker applies to all three scenarios in “Multiple returns”, or just the third scenario. Let’s assume, for the sake of argument, that it applies to only the third scenario. The main scenario I am thinking of is the second scenario, which states: “If two or more returns from a state can claim the safe harbor, then neither will be counted unless both houses agree to count one of them as the true return supported by state law.” This shows that a single house of Congress (e.g. the Senate) can indeed throw out a state’s electoral votes, since the votes are thrown out if both houses do not agree. This points to the great misunderstanding in your comment that is also being broadcast repeatedly and incorrectly by the media. Scenario #2 under “Multiple returns” clearly indicates that there is a situation in which one house of Congress can cause a state’s electoral votes to be thrown out. --Westwind273 (talk) 23:45, 3 January 2021 (UTC)

I believe the only case where the governor's signature would matter is if the state has multiple returns from multiple legal authorities (governor and legislature) AND hasn't certified before the safe harbor deadline. I'm not actually sure, though. Either way, none of those circumstances seem to apply to this election, but we'll see in three days. Herbfur (Eric, He/Him) (talk) 00:08, 4 January 2021 (UTC)

I'm about to pack WP editing in for the day, but here are my quick thoughts in response.(1) the Scope of governor's tiebreaker section begins "Commentators have differed ...", (2) you say "matters", I ask "matters to whom, and at what point in the process?", (3, following on 2) how might this disallow or overturn a decision by majority vote in a house to accept an objection before the house certifies that decision to the joint session, or disallow in the joint session a certified decision from an individual house? Consider those points to be rhetorical rather than inquisitory, but they stand in the way of me accepting your conclusion. Wtmitchell (talk) (earlier Boracay Bill) 00:55, 4 January 2021 (UTC)

I think the biggest improvement to the article that could be made would be to clarify what the Electoral Count Act means when it says "two or more of such State authorities". Herbfur postulates that those "two authorities" could be the governor and the legislature. I suspect that the writers of the Electoral Count Act had the 1876 situation in mind. In Louisiana, Stephen Packard (Republican) and Francis Nichols (Democrat) both claimed to be the duly elected governor. Packard certified the Republican electors and Nichols certified the Democratic electors. The situation was the same in South Carolina, where Daniel Chamberlain (Republican) and Wade Hampton (Democrat) both claimed to be governor, and two slates were sent to the Congress. A similar situation occurred in Florida, where the sitting Republican governor signed the Republican slate, and the state attorney-general and newly elected Democratic governor signed the Democratic slate. Both claimed to be the properly certified slate of electors from Florida. Perhaps "two or more such State authorities" can only arise when there are two people who both claim to be governor. I would really like to know the answer to this question, and I think an explanation of this would add a lot to the article. --Westwind273 (talk) 05:08, 4 January 2021 (UTC)

You know more abut relevant historical details than I. I think that, unless/until there is a judicial interpretation re that which is clear to legal laymen (fat chance), it'll be interpreted from various POVs according to what interpretation supports each POV. Even such a clear judicial interpretation probably would not stop creative POV-driven re-interpretation. The more I re-re-re-read relevant bits of 3 USC with the 2020 election in mind, the more I think that it is best not to write about it in the article until after January 20. Wtmitchell (talk) (earlier Boracay Bill) 11:09, 4 January 2021 (UTC)

I am definitely understanding of not touching the article until after January 20; until then I think the discussion here suffices. Long-term, perhaps some formal wording of what you just wrote might work best (i.e. multiple POV's). I know that I am supposed to BE BOLD and go out and find resources and change the article myself, but I have had difficulty finding the appropriate resources, and also I am not a Constitutional lawyer. I was hoping that some Constitutional lawyer who participates in Wikipedia could help us. --Westwind273 (talk) 14:08, 4 January 2021 (UTC)

OK, I've done some more study of this issue, and here is the best summary I can offer. It seems to me that the best (or perhaps only?) resource is the 2004 treatise "The Congressman's Guide to the Electoral Count Act" http://www.floridalawreview.com/wp-content/uploads/2010/01/Siegel-BOOK.pdf

This is a 131-page treatise, but the relevant section here is the 10-page section from page 625 to 634. The net-net is that if the two houses disagree on the proper slate of electors from a certain state, then the question becomes whether the two houses agree on the identity of the sitting governor of that state. If the two houses agree on the identity of the legitimate sitting governor of that state, then the proper slate of electors is the one certified by that governor. If the two houses do not agree on the identity of the current legitimate governor, then and only then can one single house of Congress cause the rejection of that state's electoral votes. The senators in 1887 were keenly aware that the House could be motivated to throw the election to itself (i.e. a contingent election), so essentially the only time that can happen is if there is disagreement on who is the legitimate governor of the relevant state. In the current context, there is no broadly held disagreement on the identity of the legitimate governors in the swing states, so we do not seem to be in jeopardy of having a single house of Congress disenfranchise an entire state. This is the best that I can determine. --Westwind273 (talk) 04:24, 5 January 2021 (UTC)

That is good (IMHO, with emphasis on the H), and some in its target audience may take it to heart. Some may not, though. Each individual in a breakout session votes their own view, the result comes from the majority of the votes, that is matched up in the joint session with the result from the other house, and the conclusion from whether or not both houses vote to accept a properly framed objection is the end of it -- with no means of appeal or review unless the President of the Senate (chairing the joint session) oversteps his mandated role and gets away with that with that (as, I take it, Nixon did in 1960 and avoided breakout sessions on Hawaii). There's a quote re that in another section of that document:

[T]here is a point beyond which you can not bind the human conscience. . . . A decision of the Supreme Court of the United States might be made as a result of bribery, yet there is no power in the country that can set it aside; that is the supreme tribunal. . . . So [Congress] may vote down the voice of the State’s electors, . . . and after the act has been done the power to revoke it, even the power to question it, has passed beyond human control.

Wtmitchell (talk) (earlier Boracay Bill) 16:14, 5 January 2021 (UTC)

"Counting of the electoral votes" listed at Redirects for discussion

A discussion is taking place to address the redirect Counting of the electoral votes. The discussion will occur at Wikipedia:Redirects for discussion/Log/2021 January 7#Counting of the electoral votes until a consensus is reached, and readers of this page are welcome to contribute to the discussion. —Bagumba (talk) 11:33, 11 January 2021 (UTC)

Exclusion of Votes.

In the introductory text at the beginning of the article we read "Both houses can overrule the Vice President's decision to include or exclude votes and, under the Act, even if the chambers disagree, the governor's certification, not the Vice President, breaks the tie."

The "even if" surely means "if." We are left with a puzzlement, with or without the "even." The tie is over the question of whether to accept the votes certified by a governor.

I'm afraid this needs work, and I'm not able to do it.

David Lloyd-Jones (talk) 06:11, 7 July 2021 (UTC)

I probably don't have time for a long discussion about this and, not being legally trained, I'm not properly qualified to opine. I'll opine anyhow. I think this clearly falls under the part of 3 U.S. Code § 15 - Counting electoral votes in Congress which reads: "[...] the President of the Senate shall call for objections, if any. [If proper objections exist], the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given [...]."

Given this, it seems to me that the portion of the lead section introduction and summary reading: "Both houses can overrule the Vice President's decision to include or exclude votes and, under the Act, even if the chambers disagree, the governor's certification, not the Vice President, breaks the tie." ought to read something like: "Both houses, if in agreement, can reject individual votes after they are read. After all votes are read and any objections disposed of, the Vice President certifies the election results." That should lead cleanly into the next sentence.

Also, it seems to me that the detail here (in the article lead's introduction and summary) is excessive. I suggest that this detail be moved down to the Counting procedures section of the article body, excnanging it with the summary currently there which says that the ECA "states only that '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.^[20]'" Wtmitchell (talk) (earlier Boracay Bill) 09:50, 7 July 2021 (UTC)

Merger proposal

The following discussion is closed. Please do not modify it. Subsequent comments should be made in a new section. A summary of the conclusions reached follows.

The result of this discussion was "no consensus." --evrik ^(talk) 17:54, 27 August 2022 (UTC)

---

I propose merging Certificate of ascertainment into Electoral Count Act. I think the content in the former can easily be explained in the context of the latter, and a merger would not cause any article-size or weighting problems in the latter. It is duplicative with the destination article's subsection and source article having the same scope, and they have very significant overlap. The page is also pretty short and is unlikely to be expanded further. The source page also lacks context and requires the background material from the destination page in order for readers to understand it. Moreover, the other certificates during the ascertainment process don't have articles of their own so this page shouldn't be an exception. I created a page for the 'certificate of vote' a while ago, and that also got merged into another article.. All of the reasons I have listed are according to WP:MERGEREASON sufficient to warrant a merge. @Reywas92 and DividedFrame:, since DividedFrame reversed Reywas92's bold merger, I suggest you both talk it out here. (talk) 17:46, 23 January 2022 (UTC)

References

• I vote NO:

[https://xtools.wmflabs.org/articleinfo/en.wikipedia.org/Electoral_Count_Act As of 2022-01-23 this article has 46,953 Prose Characters. Wikipedia:Article size#Size guideline says:

> 50 kB May need to be divided (likelihood goes up with size)

< 40 kB Length alone does not justify division

[https://xtools.wmflabs.org/articleinfo/en.wikipedia.org/Certificate_of_ascertainment The article on "Certificate of ascertainment" has 2,456 prose characters.

I think the current article is already long enough. A merge would push it too close to 50 kB. It might even be better spinning off similar sections longer than, e.g., 3,000 prose characters into separate articles and replacing them with a brief summary paragraph in this article. DavidMCEddy (talk) 18:15, 23 January 2022 (UTC)

• I lean No:

Per above and having undefined misgivings about the impact of possible future changes in the ECA. I've added {{main article|Certificate of ascertainment}} in the relevant section, and I note that there appear to be some conflicts between info in the CofA article and the info in that section. Wtmitchell (talk) (earlier Boracay Bill) 19:13, 23 January 2022 (UTC)

• Strong support The certificate is absolutely not notable enough on its own to need its own article. It's a part of the counting process given by the Act and should be described in the context of the Act. But guess what? Electoral_Count_Act#Certificate_of_ascertainment already does that! The unnecessarily separate article is also unnecessarily duplicative and provides basically zero additional information, so removing this overlap is common sense to me. Merging a few sentences would not have any impact on the size concern because a merge would NOT add all 2,456 characters to this article since most of them are already here! The article in general is wordy, but having a redundant page about the certificate of ascertainment is not the solution. Reywas92^Talk 18:48, 31 January 2022 (UTC)
• Support. It seems unlikely that the source article can be expanded much beyond its current state, which amounts to little more than the section at the target, so a merge (almost more of a blank and redirect) seems wise to address the content fork. On the other hand, the target article is rather long and dense, and has been tagged as being too technical, and more details will only exacerbate that. Ultimately, I think the electoral count act article should be moved to a more holistic title along the lines of Counting of electoral votes in United States presidential elections or Joint session of Congress to count electoral votes (though perhaps more WP:CONCISE), and then WP:SPLIT off the details about the law itself, but that's for another discussion. For the moment, I lean toward merging the article about the certificates into the section at the electoral count act article to resolve the content fork. Mdewman6 (talk) 01:59, 1 February 2022 (UTC)

The discussion above is closed. Please do not modify it. Subsequent comments should be made on the appropriate discussion page. No further edits should be made to this discussion.

Undue, Unsupported, possible POV, possibly not entirely correct paragraph

This edit caught my eye and caused me to take a look at that paragraph. As edited to remove an error, it reads:

The House and Senate were forced into recess, with the Capitol complex being locked down, and members of Congress were to wear gas masks while tear gas was used. This resulted in a curfew and an armed standoff, with National Guard troops from Virginia, Maryland, and the District of Columbia being deployed, with multiple injuries and arrests. The House and Senate later convened at 8:00 PM EST that day, and the objection was rejected in the Senate (6 Yeas, 93 Nays), and in the House (121 Yeas, 303 Nays, 9 not voting).

I haven't researched details, but that doesn't bring to mind what I remember seeing on coverage at the time. I did a quick google and saw this article headed, "Capitol Police ordered not to use tear gas canisters during Jan. 6 riot, despite them being used on Lafayette Park protesters last June ", so I'm wondering about the unsupported assertion in wikivoice re gas masks. Also, I don't remember an armed standoff or anything as actively confrontational as the impression I get from reading that paragraph. Perhaps I misremember, but it seems to me that the rhetoric there needs to be toned down a lot. That paragraph is unsupported and needs reliable supporting sourcing. Wtmitchell (talk) (earlier Boracay Bill) 18:02, 12 February 2022 (UTC)

(added) On reflection, this and other nearby material seems to have little or no direct relation to the topic of this article. I've removed if here. Please discuss this to arrive at an editorial consensus about how this material is to be treated here before re-adding it to the article. Wtmitchell (talk) (earlier Boracay Bill) 16:11, 13 February 2022 (UTC)

BRD discussion about due weight of detail

Here, I have reverted what I take to be a WP:BOLD (re)insertion of matrial about the 2020 election which, in my opinion, does not have due topical weight for coverage in this article. I've also done some rewording in order to accomodate this removal.

The material I have removed is located in the article as follows:

Electoral Count Act

Substantive counting rules

Single return

History

2020

The removed material involves objections raised to electoral votes of two states, information abut the background leading up to the objections, vote counts in consideration of the objections, and some details about events following the voting. I believe that these details do not have due weight for coverage by this article. I have linked the 2020 U.S. Presidential Election article, where these details might have due weight for coverage, as {{main article}} for the 2020 subsection. I suggest comparison of the level of detail involved here with the level of detail for elections in prior years which are also covered here. Please engage in a WP:BRD discussion here regarding this. Wtmitchell (talk) (earlier Boracay Bill) 11:59, 19 February 2022 (UTC)

Wtmitchell, I think it very much has due weight. If we're talking about the objections to the Electoral Count Act in the 2020 election, we should have a sentence or two of context there (which is not a whole lot) to understand those objections. Zoozaz1 (talk) 03:13, 2 March 2022 (UTC)

I tried to pattern the amount of detail for the 2020 election on the amount of detail present for the 1968 and 2004 elections just above the 2020 election in the History section of the article. All three of those articles link, in WP:Summary style, to detail articles for those particular elections. Do you suggest revising the information for those other elections as well or treating the 2020 election as a special case? If you feel that the 2020 election should be treated as a special case, why should that be so? My own opinion is that legislator names and vote counts are excessive bits of detail for this article topic in all three of those subsections and should be removed. Wtmitchell (talk) (earlier Boracay Bill) 08:27, 2 March 2022 (UTC)

changing the title

The Senate has, at last, introduced a replacement for the Act. So I humbly suggest that we change the title of the article to "The electoral count act of 1887" as soon as it is passed.Notwisconsin (talk) 13:12, 21 July 2022 (UTC)

That sounds good, presuming that the bill makes it into law or sufficient notability develops otherwise. In the meantime, I've WP:BOLDly moved the final paragraph of the lead into a new body section, added some info, and cited some additional sources. That new section will need revision as this develops. Wtmitchell (talk) (earlier Boracay Bill) 14:17, 21 July 2022 (UTC)

The bill does not have a formal short title, so we should follow whatever the WP:COMMONNAME is. The new bill has a different name, so disambiguation is not necessary. Antony–22 (^talk⁄_contribs) 06:41, 24 December 2022 (UTC)

Majority of electors

I want to (re)raise the issue regarding what happens when electoral votes are rejected and how this is discussed in the article at Electoral Count Act#Majority of electors. I am interested for input as to why we present the issue as being so unsettled. Certainly, any Congress is free from any precedent of a prior Congress, but to me, historical precedent is pretty clear and makes sense logically, so we should present it that way, then discuss how and why certain sources disagree. I believe United_States_Electoral_College#Historical_objections_and_rejections is complete, such that the only elections where not all electoral votes were counted by Congress were 1864 and 1872. In 1864, all electoral votes from Louisiana and Tennessee (all votes for Lincoln) were not counted, reducing both Lincoln's total (the numerator) and the total number of electors appointed (the denominator) by 17. In 1872, all electoral votes from Louisiana and Arkansas (all votes for Grant) were not counted, reducing both Grant's total (the numerator) and the total number of electors appointed (the denominator) by 14. Also in 1872, after Horace Greeley's death, the 3 presidential votes for the deceased Greeley were not counted, but the vice-presidential votes from those 3 electors were counted, thus the total number of presidential electoral votes counted was reduced by 3, but the total number of electors appointed (the denominator) was unchanged. So, from this we can conclude there are two scenarios regarding the rejection of electoral votes by Congress: 1) there is an issue with the appointment of one or more electors (e.g. election "irregularities", election fraud, or overall illegitimacy of the election in a state) that causes Congress to reject the validity of the electors themselves, which logically decreases both the numerator and the denominator, making it as if the electors were never appointed and thereby reducing the number of votes needed to achieve a majority, and 2) there is an issue with the votes of one or more electors (e.g. voting for a deceased person) that causes Congress to reject the validity of specific electoral votes of legitimately appointed electors, causing the votes deemed invalid to be discarded but with no change to the total number of electors (or the number of votes needed for a majority).

In regard to 2020, through the lens of the above, 2021 United States Electoral College vote count#False electors sent by Trump Campaign to challenge real electors in seven states and apparently numerous reliable sources miss the point. The statement If the results from those seven states had been rejected, neither candidate would have had the 270 votes required in the Electoral College, and the House would have had to decide the election is arguably (under the above logic and historical precedent) incorrect. If the electors from the 7 states in the Eastman memos were thrown out due to "election fraud" or the like, akin to Louisiana and Arkansas in 1872, Trump would have 232 votes and Biden would have 222 votes out of a total of 454, of which a majority is 228, and Trump would win outright with no contingent election being triggered. In fact, tossing out New Mexico's electors is not needed; the discarding of electors from the 6 states of the Ellis memos is the minimum number of states required to make Trump the winner (Trump's 232 to Biden's 227 out of a total of 459, of which a majority is 230). 270 is not some magical, unchanging number, as unfortunately presented by the media, but if it were, only tossing out the 3 closest states (AZ, GA, PA) would have been required. But it makes no sense that Congress could conclude these Biden electors were indeed appointed, keeping the total at 270, but that something is somehow wrong with their votes. Even in a corrupt Constitutional scheme to change an election outcome, you can't have it both ways: if you're concluding there was massive election fraud and the wrong electors were appointed, you can't ratify their appointment while at the same time discounting their votes just to make the math come out in your favor. So for the scheme to work, 6 states would need to be rejected, not 3, and in no scenario was the goal to force a contingent election. Unfortunately, the press and pundits and even Constitutional experts like Jamie Raskin seem to have gotten this wrong at times. What Eastman and others was proposing was ultimately illegal due to their corrupt intent, but their scenario at least was based on correct Constitutional logic, and fortunately required Congress to reject a whopping 6 states worth of electoral votes.

Tangentially, I feel like the Pence card theory is also presented incorrectly. Why is it not plausible Constitutional hardball that Pence could decide to open the returns from "fake" electors (Republican slates of electors, who were not ultimately appointed) instead of the real ones? Setting aside whether this action is ultimately illegal (and the fact that doing so would obviously be ethically and morally wrong), it's certainly within his Constitutional discretion to "open the certificates" to attempt it (logically, even ceremonial or ministerial roles must have some discretion, it's just that invoking discretion may lead to consequences). What everyone seems to be missing, in my view, is not that Pence couldn't attempt it, it's that it wouldn't work because a majority of both houses of Congress would surely reject Pence's attempt to count the illegitimate votes. The problem with the Pence card theory, then, is not that the VP has no power, it's that the minority view would need to prevail that Congress has no ability to challenge votes opened by the VP, and only must Constitutionally be present so that they may go right into a contingent election if required, meaning that a single officer of the United States could indeed choose the president, which is certainly not what the Framers intended. In the Framer's era, perhaps it was unlikely the VP would know the outcome in each state before hand, and the VP was truly counting the votes and not simply ceremonially ratifying a known outcome, meaning that they could never have surmised a VP attempting to strategically alter the vote count to reach a different outcome. Going further, I suppose Pence could have refused to open certificates of votes, stalling the vote count (a goal of the rioters). Had this persisted, no contingent election could put Trump in office, as that requires the count to be finished (and no candidate having a majority); instead presumably the Speaker of the House would become Acting president on January 20th under this (not very well thought out) scenario.

Anyway, is anyone else troubled by how these issues are presented in the relevant enwiki articles, or have any insights? For lack of a better characterization, because these ideas are so appalling and historically unprecedented, it seems like many are just jumping to the (correct) conclusion that these schemes are illegal and not really thinking through the details as to what has basis in the Constitution and where the concepts actually go astray. Mdewman6 (talk) 01:26, 3 November 2022 (UTC)

tl;dr Historical precedent regarding whether or not the total number of electors appointed is changed when electoral votes are rejected is clear and logical, so why does Electoral Count Act#Majority of electors present it as such an open question? Consequently, 2021 United States Electoral College vote count#False electors sent by Trump Campaign to challenge real electors in seven states and some reliable sources seem to misunderstand how Eastman's and other's scheme would logically have played out; a contingent election would not have occurred, instead the goal was to elect Trump outright by throwing out the electors from the 6 (or 7) closest states that voted for Biden, giving Trump a majority of the remaining electors. Mdewman6 (talk) 02:23, 8 November 2022 (UTC)

The article quotes a cited source which appears to have considerable weight as saying, "the effect that decision has on the denominator that determines whether a candidate has more than fifty percent of the electoral vote is an entirely open issue." You argue to the contrary. For that argument to go into the article, WP:DUE would need to be considered.

Yes, whether the contestant names in a two-person contest are Trump and Biden or Smith and Jones, if the split is 306 to 232 and enough votes of the contestant with 306 are invalidated to bring that number below 270, neither candidate would have a majority of the votes of the 538 electors originally appointed. The 12th Amendment says, "The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, ..."; "appointed", not "originally appointed". The questions seem to be (1) does the invalidation of a vote cast by an elector also invalidate that elector's appointment? and (2) what is the reliability and weight of sources cited to support answers to that question? Wtmitchell (talk) (earlier Boracay Bill) 07:22, 8 November 2022 (UTC) of

New article for new law

I've split off a Electoral Count Reform and Presidential Transition Improvement Act of 2022 article, which needs expansion. I think it's best to restrict this article to the now-historical version of the bill, and keep substantive discussion of the new rules in the new article, since if we mix up the old and new provisions in one article it will become confusing. Antony–22 (^talk⁄_contribs) 06:55, 24 December 2022 (UTC)