Election night time is over; however, the election isn’t. And given the unexpectedly tight race, Pennsylvania’s 20 electoral votes could also be people who determine who wins the White Home. To make sure, Biden nonetheless has a path to victory that does not contain Pennsylvania; however, he may find yourself needing the state if he suffers reverses elsewhere.
The important thing for Pennsylvania to have an orderly and full vote rely on is for the state to take its time. And the critical thing precedent that ought to Show Pennsylvania that it might take its time isn’t Florida in 2000, however Hawaii in 1960. Though Richard Nixon stated it shouldn’t be a precedent, what he did in 1960 must be the mannequin for this election in 2020.
In 1960, Hawaii’s vote was extremely shut. On the primary rely, Nixon had crushed John F. Kennedy by 141 votes. On November 28, the appearing governor certified a Republican slate of electors. They met on December 19 and forged their ballots for Nixon.
However, a recount confirmed that the truth is, Kennedy had received the favored vote by a fair nearer margin of 115 votes. That recount had been accomplished on December 30, 11 days after the Republican electors from Hawaii had forged their votes for Nixon. 5 days later, the governor despatched Congress a brand new certification of electors, this time naming the Democratic electors because the electors correctly chosen by Hawaii’s voters. That certification arrived in Congress on January 6, the day that Congress was to rely on the electoral votes. When then-Vice President Nixon, who the Structure had set because the custodian of the electoral votes, started to “open all of the certificates” because the Structure directs him, and got here to Hawaii within the checklist of states, he introduced that there have been two slates of electors from Hawaii, one Republican and one Democratic.
This was not the primary time that Congress had been despatched several slates of electors from a single state. In 1876, due to fierce partisan battle, a handful of states had every despatched two slates of electors to Congress, triggering a constitutional disaster that would have triggered a second Civil Battle.
Eleven years later, Congress enacted a statute to resolve such conflicts. Within the election after the enactment of the Electoral Rely Act of 1887, Oregon despatched the second set of returns as a joke. This time, the second slate was discarded with none worry of civil conflict.
However, Hawaii is the one case since 1876 when a state, with sincerity, despatched the votes of multiple slates of electors to Congress. And whereas the three votes from America’s 50th state would in the end not matter to the result, they might have. Had the tight Illinois race — which Kennedy won by around 9,000 votes — gone for Nixon and shifted just a few reluctant Democrats within the Dixiecrat south, Hawaii’s votes may have flipped the result from Kennedy to Nixon.
Within the days main as much as January 6, Nixon’s workforce had tried laborious to engineer such an end result. Nevertheless, it was clear on the morning of the sixth that they’d failed. Nixon accepted his destiny and selected not to permit any Congressional problem of the second slate of Democratic electors from Hawaii. As he’s recorded as saying, “In order not to delay the further count of the electoral vote here, the Chair, without the intent of establishing a precedent, suggests that the [Democratic] electors named in the certificate of the Governor of Hawaii dated January 4, 1961, be considered as the lawful electors from the State of Hawaii.”
The puzzle right here is that this: The Constitution specifies that it’s Congress that units the day on which the electors should meet in their very own state to forged their ballots. That day has to be identical throughout the US. The framers’ design was meant to keep away from any potential coordination by electors from entirely different states. Fashionable communications expertise was only one extra innovation the framers by no means anticipated. So if the Hawaii Democratic slate was solely licensed on January 4, how may they’ve voted greater than two weeks earlier, on December 19, 1960?
The important thing — and that is the essential truth for 2020 as properly — is that the Democratic slate had additionally met on December 19 and had additionally forged their ballots within the method specified by the Structure. After they voted, nobody knew whether or not their votes would matter. However, at the very least, somebody acknowledged that the one method their votes may matter was in the event that they had been forged on the day that Congress had set. The historical past doesn’t report who had that genius authorized perception.
That perception exhibits what ought to occur this 12 months on December 14, 2020, when the electors are to fulfill to forged their ballots. On that day, assuming the favored votes’ ultimate reliability has not but been licensed, each slate of Pennsylvania presidential electors ought to meet in Harrisburg. Each slate ought to forge their votes by-poll. And Pennsylvania Gov. Tom Wolf ought to await the favored vote’s ultimate decision rely earlier on the fact he certifies which slate ought to signify the state. As long as that certification occurs earlier than January 6, there may be nothing that ought to cease it from being counted by Congress.
Some would possibly fear that this cannot be finished due to the Electoral Rely Act’s “safe harbor” provision on the core of the battle in Bush v. Gore.
Underneath this provision, Congress guarantees to rely on the votes of any slate of electors that have been licensed at the very least six days earlier than the Electoral Faculty is to vote, below legal guidelines that had been written previous to the election. Underneath the situation we’re describing right here, Pennsylvania’s slate wouldn’t obtain “secure harbor” standing. However, the essential bit that the Supreme Courtroom appeared to overlook in Bush v. Gore is that secure harbor isn’t the one path to a slate being counted — as Hawaii exhibits. If the state’s governor has licensed just one slate, the Electoral Count Act says that’s the slate that Congress should rely on — no matter when it was licensed.