[music]

Amy: It's Politics with Amy Walter on The Takeaway. This week marked the so-called Safe Harbor deadline when states certify the results for the US presidential election. Typically, by the Safe Harbor deadline, election-related challenges at the state level are all wrapped up, but President Trump is continuing to claim without proof that the results in many of the states that voted for Joe Biden are fraudulent and should be tossed out.

A lawsuit filed by the state Attorney General of Texas and supported by the President as well as 17 Republican states Attorney General and over 100 Republican members of the House is asking the Supreme Court to overturn the results of the elections in four states carried by Biden, Pennsylvania, Georgia, Wisconsin, and Michigan. That would bring Biden below the 270 Electoral College votes he would need to be the president-elect.

How can an election be both certified and contested? Helping us to make sense of it all is our friend Barbara Perry, the Presidential Studies Director at the University of Virginia’s Miller Center. She begins by explaining who the electors are and what the Electoral College actually does.

Barbara: Electors, one might view them as delegates to this thing called the Electoral College. I actually have a T-shirt that says, "Property of the Athletic Department of the Electoral College," which I love that the politics department at UVA gave all of the graduate students at one point, but it's not really a place. It is people, it is this group of electors.

They are chosen typically by a method that is determined by the state legislatures in each state and that concept is spelled out in the constitution, that the legislature's of the states get to choose the manner in which these Electoral College delegates or electors will be chosen.

That can be through a primary system, much as the presidential candidates are selected. It can be through a convention of the party in a state, but typically, these are people who are party leaders, one might call them party regulars, party activists.

The only thing that they cannot be is a federal officeholder. For example, a senator, member's House of Representatives, a member of the cabinet could not participate as an elector, but typically, it is determined, the method of selection, by the state legislatures and then really turning it over to the party organizations in each state to choose this, we'll call it a slate of electors.

Amy: Then let's walk through what happens. We have the election, we have, as we've seen, especially this year, the states, sometimes it takes them a little longer than-- Some states take a little longer than others to certify the results and then we have something known as Safe Harbor day, which happened this week on Tuesday, December 8th. Can you explain what that is?

Barbara: Yes. In legal terms, particularly as it's used in this context of an election, is that once this date is set as this is the Safe Harbor and once a state certifies your election results, you by that date then get to be in the Safe Harbor, where your determination and your certification of that election should not be prone to any more of the storms in the seas and the roiling that could come from those who might be questioning the election and its results.

Amy: That's where we are now. Help us understand this, Barbara, because we've passed the Safe Harbor day, we know that every state has certified its electors, and yet the Texas Attorney General is filing a lawsuit or has filed a lawsuit asking the Supreme Court to block the electors from four states. How can this be possible given that the Safe Harbor date has already passed?

Barbara: I agree with you on asking that question, and my answer to that would be "What an irony?" Think back to 2000, think back to the Bush v. Gore controversy, which was much closer because remember that the Florida recount that was being requested by Al Gore because he was just a few votes behind, probably about 300 to 500 votes behind George Bush in that popular vote count in Florida.

Whichever person was going to be certified and deemed the winner of Florida was going to exactly end up with 270 votes necessary to win the Electoral College. That's how razor-thin those margins were.

Understandably, Al Gore was going to keep pressing, but here's the historical irony, that Republicans were saying on behalf of George Bush, "Oh, Safe Harbor day is approaching so we really must wrap up and stop this recount in Florida." The US Supreme Court accepted that argument by the Bush side and said, "We cannot violate this concept of the Safe Harbor. Florida must certify its votes," and indeed the recount stopped.

Florida certified their votes, which showed that Bush had won by again, 300 to 500 votes. That was it and that was it for Al Gore. My view is, isn't it an irony that the Republican party this time around, led by, at this point, the commander in chief himself, but also, the Attorney General of Texas joined by what? 16, 17 other attorneys general, Republicans in states are now completely violating that concept of, "Let's really pay attention too and follow the Safe Harbor rule."

Amy: I think many constitutional scholars would also argue that it's unlikely the Supreme Court is even going to take up this case, nonetheless, rule on it, but the fact is we do know at this point that every single state has certified its election, correct?

Barbara: That is correct.

Amy: What happens then on December 14th? Do these electors, actually, in normal pre-COVID times, do they actually really get together on campus, so to speak for the Electoral College? How does this work?

Barbara: There's not one big campus with an athletic department, football team and cheerleaders. It's not as though you are the University of California at Berkeley, at UCLA, at San Diego. It's not as though there's one big Electoral College with 50 state campuses and, by the way, we also include the District of Columbia, has three electoral votes in the Electoral College, so we would have 51 campuses, but we do have a system whereby typically, all these electors are required to meet on the six days after the Safe Harbor day, which this time will be December 14th and they are to meet in the state capitals, the city that is the state capitol.

I presume, in some instances, they actually meet in the state capitol building, but in any event come to the city that is the state capitol of their state. It is the system whereby whichever candidate and party won the popular vote, then that party slate of electors will be the ones to come and they literally then cast their votes, sometimes by checking off a box or they actually write down the name of typically the person who won the popular vote in their state.

Amy: Then they are supposed to send those ballots from those votes that they took on December 14th to the President of the Senate by the 23rd of December.

Barbara: That is correct. They will send the results that will be tallied up. In very official terms, they also send copies of the state tallies, the electoral delegates or electors of the Electoral College after they have come to get a final total. By the way, we should point out that the number of electoral votes is based on the number of members that state has in the Congress and that's why every state has a different number of electoral votes.

Therefore, it is mostly population-based, but obviously, since every state has two senators, everyone has at least two. All those tallies have to come in in official form, including with a formal document and a seal that goes to the Archivist of the United States in a very official manner, and as you say, it goes to the President of the United States Senate. That person, according to the constitution, is the Vice President, the sitting Vice President of the United States.

Amy: It is officially Mike Pence who will receive that document?

Barbara: That is correct. In Congress, it is Mike Pence who will receive and open all of those envelopes that contain the officially certified, literally signed, sealed, and delivered tally of the electoral votes in the 50 states and the District of Columbia.

Amy: Congress comes back on the 3rd of January, of course, what coming back will look like in this COVID era, we do not know, but traditionally, right after that and it's on January 6th, Congress holds a joint session to count the electoral votes. Can we talk about what that looks like traditionally?

Barbara: Yes, it can be very fascinating. Otherwise, it's typically a rather, again, signed, sealed, and delivered, we will know by that time which person, we presume it will be Biden sticking with his 304 electoral votes. Usually, it is pro forma, but it has to be done according to the constitution that those members of the Congress gathered in the House chamber because that's the bigger chamber so they can all-- like the State of the Union, they all can come in, senators, members of Congress and yes, they will tally up the votes.

There are two members of each-- Two members of the staff, comptrollers if you will, of the House and the Senate, a Democrat and Republican, so there's no hanky-panky going on in the tallying of the votes and again, that's usually pro forma, but it can be really intriguing. Historically, when you have a situation like 2000 where you have the vice president, Al Gore, who was running to be elected president, having gone through all that controversy, taken his two cases all the way to the US Supreme Court, the Supreme Court deciding against him.

Then imagine having the heartbreak of having to read that the person you were contending with to get the presidency has defeated you, but he had to announce as part of his official duty as President of the Senate, Vice President of United States, that George Bush would be the next President of the United States and to Al Gore's credit, he did it in a very proficient and efficient and professional manner.

Al Gore: George W. Bush of the State of Texas has received for President of the United States 271 votes. Al Gore of the State of Tennessee has received 266 votes.

Amy: We are hearing from some Republicans, in Congress, that they are going to raise a protest at this. They're not going to allow this to just become a pro forma situation, that they're going to object to this claiming of Electoral College victory by Joe Biden. How would that work, and has this happened before?

Barbara: Yes. To the answer to the first question, yes, they have the right to object to particularly a state count. We know in the case of Trump supporters that they are contesting the four or five swing States that help to swing the election to Joe Biden, some of which were won by a relatively small margin of votes, Georgia, for example. I think what was it? In favor of--

Amy: 12,000.

Barbara: Yes, with fewer than 12,000 votes. Yes, you can have any member of Congress raise a challenge to the electoral vote count of a particular state. In order for the process to stop at that point on the challenge though, you have to have a member of the House and a member of the Senate, each to lodge a challenge to a specific state's tally.

At that point, there is a break in the proceedings of the counting and each chamber goes for- they can go up to two hours, they can determine if they want to vote yes or no up or down on this challenge, but in order for those votes to be thrown out, both houses have to agree on the challenge and the throwing out of that state's electoral votes.

Obviously, given that one house now is in control of the Republicans, that is the Senate and the House of Representatives in control of the Democrats. It would be very unlikely that there would be agreement to throw out any of these electoral votes for many of the States, but that is a procedure.

We've not really had many instances where there's been a direct challenge to a specific state's electoral votes, but certainly going back to 2000 and even in 2016, because both of those times the Democratic candidate had won the popular vote in the case of Al Gore nationwide by a million-and-a-half votes in the case of Hillary Clinton, 3 million votes.

You had Democrats, I remember the Congressional Black Caucus in 2000 standing up to say they were protesting the fact that the Bush V. Gore situation had ended as it did and in the cases in 2016 you had Democrats again, not objecting necessarily to a specific state, but just objecting to the whole outcome.

Interestingly, Joe Biden, then the President of the Senate by virtue of being vice President of the United States was gaveling them to come to order that the process was going to carry on and that Trump was going to win by what was his totality, 306, I think, electoral votes.

Joe Biden: Michael R. Pence of the state of Indiana has received for Vice President of United States, 305 votes. Tim Kane of the Commonwealth of Virginia has received 227. There'll be order--

[crosstalk]

[background noise]

Amy: Barbara, this raises a question I didn't even know to ask, but it seems then, are you saying that if Republicans controlled the House that they could agree to say, 'Well, we don't agree with Wisconsin's electoral slate going to Joe Biden," so both bodies object, what happens then?

Barbara: They could throw out if they were successful, if Republicans controlled the House right now, and that they were successful, that is controlled by a majority of the 435 members, because that's going to be a key constituent part of this, that the answer, that they could, yes, they could throw out all of-- They could challenge and throw out all of the swing state votes and get down to the point where you didn't have one of the candidates have a majority of electoral votes, and most people who are up on their civics at least every four years know that if one candidate does not receive a majority of the electoral votes, then the House of Representatives decides.

At this point, again, back to my drawing a distinction between a majority of all the members or a majority by state delegations, which is how the House, according to the constitution must vote to determine a president that we have at this point in the House of Representatives, a bare majority of the delegations from each state in favor of the Republicans. They would choose then the president of the United States, and they would choose Donald Trump.

Amy: This is remarkable that I didn't know this. [chuckles] Given the fact that-- This is a new Congress that is doing this. These are the folks who were elected in 2020, who will be in the chamber on January 6th. If Republicans had won the majority in the House and they came pretty close, this could actually be, we could be looking at a very dicey situation for Joe Biden.

Barbara: Yes, because the Congress--

Amy: Yes, given how many Republicans are supporting the president's claims, which have no basis, in fact, courts have thrown out, et cetera--

Barbara: In many GOP, local officeholders and state officeholders have stood firm in favor of the popular vote determining the electoral vote, but you're headed in the right direction, and that is-

Amy: That is that they could overturn it.

Barbara: -Congress could overturn the will of the people. Yes, but we have to remember while we are stunned at that, remember that the whole point of having an Electoral College and then having to have a safety valve put aside, the Safe Harbor, and think of a pressure cooker, instead, the founders knew that there had to be a safety valve in case you didn't have the Electoral College vote work.

That is, you didn't have the Electoral College come to a majority determination to choose the President of the United States, so there had to be a backup to that, and that is the Congress but the point is that the founding fathers, while if the founding fathers could come alive now and see where we are, and maybe be in favor of the popular vote determining who won the election, their whole point of having an Electoral College was to check the popular vote.

I always point out that when they wrote the constitution, only people like themselves could vote. That is white male property owners. Picture that, that I don't know whether they were thinking in terms of, "Well, someday we might have an extension of the franchise," and by the 1830s we did where you had non-property owning white males who were able to vote, but that in itself made a huge difference in the franchise and the populism of Andrew Jackson and Jacksonian democracy.

The founders, in some ways, if they held true to their beliefs that you needed to check the popular will, because their fear was in the experiment of a democratic republic and one that they did think would become enlarged as it grew over this continent, they feared that the people sometimes were ignorant. The people sometimes would get to be very passionate and become irrational and then would follow a demagogue.

That was their biggest fear that we would elect a demagogic president as President of the United States, so they thought the Electoral College would be the check on that. By the middle of the 1800s, we had already moved to this tradition whereby each state's electoral vote was going to be determined by the popular vote.

In some ways, it dashed the hopes of the founding fathers. Now, in my view, as it proved in 2016, the Electoral College is completely out of whack from what the founders hoped, because it actually, by just counting the popular vote in 2016, the Electoral College chose a demagogue.

Amy: Barbara, every conversation with you I learn something. This is fantastic. Thank you.

Barbara: You're so welcome.

Amy: You think Electoral College, we already know everything about the Electoral College. No, you don't. Barbara Perry is the Presidential Studies Director at the University of Virginia's Miller Center.

[music]

Amy: Call us anytime at 8778-MY-TAKE or send us a tweet, I'm @amyewalter. The show is @TheTakeaway. Thanks, so much for listening. It's Politics With Amy Walter on The Takeaway.

[music]

Copyright © 2020 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.