Some Republican legislators in Pennsylvania resist the notion that such an arrangement might be on the table, according to reporting published in the York Daily Record. A report from the non-partisan National Task Force on Election Crises maintains it would violate federal law for a state legislature to appoint electors after Election Day.
There’s no final word here. The Supreme Court has never had opportunity to weigh in on this exact situation. The Electoral Count Act of 1887 specifies the process for electoral voting after Election Day, but its language is ambiguous. The act is “the closest thing to a roadmap for handling controversies after Election Day, and on many issues, it offers helpful guidance,” writes Harvard Law School professor Cass Sunstein in a recent working paper, “Post-Election Chaos: A Primer.”
He continues: “At the same time, it is not at all clear that it is constitutional, or that it is binding, and in the face of a claim of serious mistakes and fraud, it contains silence and ambiguity.”
(Jackie Boylhart / Unsplash)Each state has a constitutional right to direct how it appoints its electors. The Supreme Court in 1932 decided a case related to state legislative authority over holding Congressional elections. The court in 2015 reaffirmed the central findings of that case. For the purposes of the coming presidential election, the majority opinions in those cases would likely dictate that state legislation attempting to modify how electors are chosen would be subject to gubernatorial veto. In a state with a Republican legislature and a Democratic governor, or the reverse, such legislation would almost certainly be vetoed.
But justices change, and the court may change legal interpretations over time. Because Trump has repeatedly said that he won’t accept the election results if he loses, there is a not-zero chance the Supreme Court will decide the presidential election in 2020 as it did in 2000. With countless potential unknowns before and after Nov. 3 — including that the president and first lady have COVID-19 — who the nominated electors are again becomes relevant.
There are a baker’s dozen swing states that Trump and Biden each have a reasonable chance of winning. Arizona, Florida, Georgia, Iowa, Michigan, Minnesota, Nevada, New Hampshire, North Carolina, Ohio, Pennsylvania, Texas and Wisconsin represent 199 electoral votes among them — 37% of the 538 total electoral votes and 74% of the 270 needed to win the presidency. They are the battlegrounds that will decide the 2020 presidential election, according to data analysis and reporting from The Associated Press, FiveThirtyEight, NPR and The New York Times.
A state’s office of the secretary of state is the usual place to turn for names and contact information for presidential electors. Some secretary of state offices, like in Georgia, publish contact information and occupations for some electors on their website. Other states, like Florida, offer only names. Most of the 2020 swing states don’t make nominated slates of electors readily available online.
For the reasons stated above — namely that there is a host of evidence that fall 2020 is shaping up to be an extraordinary presidential election season — Journalist’s Resource is compiling the names of electors in these 13 swing states. For states that don’t make electors’ names available online we obtained other records, such as official presidential nomination papers, which include names of presidential electors and, in some cases, personal information, such as home addresses.
Some electors are public figures — mayors, state legislators, former high-level state office holders, former presidential cabinet members and so on. Others are primarily private citizens who, despite potentially holding a public position in this instance, may also have a reasonable expectation of privacy. For this reason — and considering the FBI has warned of violence before and after Nov. 3 — we have chosen only to publish electors’ names.
We’re still waiting for names of nominated presidential electors from Pennsylvania and Wisconsin. We’ll update our tally as we get more names. Here’s what we have so far:
See the electors swing state voters will be voting for, in PDF or Excel, when they select Trump or Biden on Nov. 3.
American voters have come to expect a presidential result on election night — or, at latest, early the next morning. Media outlets like The Associated Press notably make those calls based on reams of data and reporting from across the country. For the coming presidential election, three-quarters of voters will be able to vote by mail, meaning tens of millions of ballots may go uncounted until days or weeks after Nov. 3.
(Tiffany Tertipes / Unsplash)Given the likely delay in the vote count, Americans shouldn’t expect a clear presidential winner come Nov. 4, barring an overwhelming victory for either Trump or Biden. If media outlets do call the presidency on Election Day or shortly thereafter, audiences shouldn’t construe those calls as official results. State election officials will still need to certify the general election results, and the Electoral College vote for president doesn’t happen until December.
“The whole goal here with respect to the presidential election is to have the state rules for counting the popular votes in the state lead to the Electoral College process,” explained Ned Foley, who directs the election law program at The Ohio State University, during a recent media briefing hosted by the National Task Force on Election Crises. “And if we don’t have a result on election night, or the next day or even the next week, that’s not a problem. That’s not even a delay.”
Key election cycle dates
Here are the key dates for the 2020 U.S. presidential election cycle.
Nov. 3: Election Day. Either on this day or through absentee or early voting, registered voters will choose the candidate they want their electors to vote for.
Dec. 8: The last day for states to resolve disputes over vote totals. If state disputes aren’t resolved, Congress decides which slate of nominated electors gets to vote for president. Congress, it should be noted, is split between Democrats, who control the House, and Republicans, who control the Senate.
Dec. 14: Electors meet in their respective states and cast separate votes for president and vice president. Copies of the vote results go to the vice president, who also serves as president of the Senate.
Jan. 3: The newly elected Congress is sworn into office.
Jan. 6: Congress meets in a joint session of the House and Senate at 1 p.m. to count the votes cast by presidential electors. The vice president opens the results by state in alphabetical order. There are procedures for deliberation and objection. If the counting isn’t done by the end of the day, the chambers can break. If results are still being debated come Jan. 11, Congress can’t take any more recesses.
Jan. 20: The four-year terms of the incumbent president and vice president end at noon. The president-elect and vice president-elect are sworn in. If the election results remain in dispute, the Speaker of the House becomes president until those disputes are resolved.
Additional resources
The Electoral College, National Conference of State Legislatures.
State laws on presidential electors, National Association of Secretaries of State.
The Electoral College: A 2020 Presidential Election Timeline, Congressional Research Service.
“Bush v. Gore Was Not Justiciable,” Erwin Chemerinsky. Notre Dame Law Review, 2001.
“Bush v. Gore through the Lens of Constitutional History,” Michael Klarman. California Law Review, 2001.
“Bush v Gore: What Were They Thinking?” David Strauss. The University of Chicago Law Review, 2001.
“The Untimely Death of Bush v. Gore,” Richard Hasen. Stanford Law Review, 2008.
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