Democratic election lawyer Marc Elias on why he does NOT support the proposed Electoral Count Act

[markpkessinger]

Last edited Sun Jul 24, 2022, 07:18 PM - Edit history (1)

This gave me pause . . .Democratic election lawyer Marc Elias has pointed out that the bill has a flaw that isof particular concern. He writes:

"At the heart of my concern with this bill is the requirement that at least six days before the Electoral College meets, each governor must submit a “certificate of ascertainment” identifying their state’s presidential electors. According to the new bill, that document is “conclusive with respect to the determination of electors appointed by the state.”

Conclusive is a very strong word. Typically, in legal construction, a fact or piece of evidence is conclusive when it is settled and cannot be contradicted by other facts or evidence. For decades, the U.S. Supreme Court has reasoned that if something is conclusive, it is “incapable of being overcome by proof of the most positive character.”

Under such an interpretation, the declaration by a governor that a Republican presidential candidate received more lawful votes than the Democratic presidential candidate could not be challenged even if there was strong evidence to the contrary. If elected this November, a future Gov. Kari Lake (R-Ariz.) or Gov. Doug Mastriano (R-Pa.) could certify the “Big Lie” presidential candidate as the winner even if the best evidence showed that he or she had lost the presidential election. That “conclusive” determination would be the end of the analysis."

For the full article, see https://www.democracydocket.com/news/reforms-to-the-electoral-count-act-miss-the-mark/

[enough]

1. Sounds like some serious issues. Thanks for posting this.

[Fiendish Thingy]

2. More reason not to like the bill: it gives courts ultimate jurisdiction to resolve disputes

I am less concerned about the clause about governors’ certification (but still concerned) than I am about SCOTUS being the final arbiter of a states duly appointed electors, when currently they have no jurisdiction.

[sprinkleeninow]

3. As done in Gore v. madcowboy

[Novara]

4. Maybe I'm dense ...

... but I do't see how he gets to that conclusion from the appointment of electors. The "conclusive" appointment of electors means they can't question erroneous results? Huh?

I trust him; he absolutely knows what he is talking about but I don't understand how he draws that conclusion. Maybe there's something about this he didn't include in his article.



At any rate, the electoral college needs to be abolished, period. The popular vote should determine winners of elections.

[markpkessinger]

5. The issue is that the bill says that whatever slate of electors the governor submits . . .

. . . will be legally conclusive. But what happens when an unscrupulous character like a Doug Mastriano holds the governor's seat, and decides to send in his own slate of electors contrary to the one the voters selected?

[Novara]

6. I don't think that's what the bill says.

I read it to mean that when the electors are determined at that specified time ,THEY are the electors and there is no chance for a different set of electors to ever be appointed, Hence, "conclusive." And that's a good thing.

I just don't see how that means that those electors can't question electoral results if evidence shows one result and other electors state another result.

Regardless, I'm more worried about settling the inevitable scuffles in federal courts and the SCOTUS, which have both been politically stacked.

As I said, we need to get rid of the electoral college.

[Bev54]

7. Well being that Marc Elias is the top election lawyer in the country,

I will defer to his legal opinion.

[Novara]

8. I trust him

I just think he left something out because from what he wrote, his conclusion for that piece of it doesn't logically follow.

[markpkessinger]

10. Elias makes a much more detailed argument in his essay . . .

. .. and makes some very good points about the imprecision and ambiguity of the bill's language. Imprecise or ambiguous language is precisely the kind of thing Republican lawyers will seize upon. Again, you can read it at https://www.democracydocket.com/news/reforms-to-the-electoral-count-act-miss-the-mark/

[gab13by13]

9. This came from the Senate, right?

Wonder who wrote the Bill?

[markpkessinger]

13. Yes, a group of 10 Senators . . .

. . . led by Susan Collins and Joe Manchin -- not exactly the two Senators I would trust to hammer out a deal like this!

[duckworth969]

11. Yikes

Someone should posit this very question to the Senate Committee.

This is the whole problem with the Electoral College to begin with: A procedural machination is put into place that could potentially thwart the will of the people.

[UTUSN]

12. K&R

[Hermit-The-Prog]

14. That thing has confusing language -- corporate arbitration "agreements" are clearer.