jimnyc
12-03-2020, 02:43 PM
Crazy.
But many of us predicted many things - as they were clearly telegraphed IMO and they didn't even bother to hide many things. :rolleyes:
An interesting read.
----
University Document Published in September 2019 Details 2020 Election to a Frightening Precision
Ron at CodeMonkeyZ tweeted out a document published in September 2019 that lays out the Democrat Party’s plan if they find themselves in a major dispute in the 2020 election.
Ron has been following the 2020 election closely since Democrats attempted their steal in early November.
This document was published by Edward B. Foley the Ebersold Chair in Constitutional Law and Director, Election Law @ Moritz, Ohio State University Moritz College of Law.
https://i.imgur.com/axwdHuf.png
The document even includes Arizona and Pennsylvania as contested states in their scenario.
In the document Foley uses Liz Warren as their candidate since she was ahead in polling at the time but it could have been any of the candidates since the Democrats were going to steal the votes no matter who was their candidate.
Rest - https://www.thegatewaypundit.com/2020/12/university-document-published-september-2019-details-2020-election-frightening-precision/
Here are the first 10 pages for anyone truly interested:
Preparing for a Disputed Presidential Election:
An Exercise in Election Risk Assessment
and Management
Edward B. Foley*
This Article considers the possibility that a major dispute over the
outcome of the 2020 presidential election could arise, even without foreign
interference or some other extraordinary event, but rather just from the
ordinary process of counting ballots. Building upon previous research on
the “blue shift” phenomenon, whereby adjustments in vote tallies during the
canvassing of returns tends to advantage Democratic candidates, it is easy
to imagine a dispute arising if this kind of “blue shift” were consequential
in the presidential race. Using examples from both Pennsylvania and
Arizona, two states susceptible to significant “blue shifts” in previous
elections, the article shows how the dispute could reach Congress, where it
potentially might metastasize into a full-fledged constitutional crisis. The
most frightening scenario is where the dispute remains unresolved on
January 20, 2021, the date for the inauguration of the new presidential term,
and the military is uncertain as to who is entitled to receive the nuclear codes
as commander-in-chief. In order to avoid this risk, Congress should amend
the relevant statute, 3 U.S.C. § 15.
INTRODUCTION .................................................. ........................... 310
I. FROM NOVEMBER 3, 2020 THROUGH DECEMBER 14, 2020....... 315
A. What Could Happen............................................ ......... 315
B. Analysis.......................................... .............................. 316
II. FROM JANUARY 6, 2021, THROUGH JANUARY 20, 2021........... 321
A. What Could Happen............................................ ......... 321
B. Analysis.......................................... .............................. 323
1. The Electoral Count Act........................................ 329
III. JANUARY 6, 2021, THROUGH JANUARY 20, 2021 ................... 335
A. What Could Happen............................................ ......... 335
B. Analysis: The Arizona Alternative ............................... 339
IV. THE ROLE OF THE SUPREME COURT IN POTENTIAL ELECTORAL
COUNT CONTROVERSIES .................................................. ..... 341
A. Before the Electoral College Meets on Monday,
December 14 .................................................. ............ 343
B. Between December 14 and January 6 ......................... 345
C. Between January 6 and January 20............................. 348
CONCLUSION........................................ ......................................... 350
APPENDIX .................................................. ................................... 351
A. Text of the Electoral Count Act.................................... 351
B. Existing Interpretations of 3 U.S.C. § 15..................... 356
C. Other Ambiguities Concerning 3 U.S.C. § 15 ............. 358
D. The Consequence of Not Counting Any Electoral Votes
from a State? .................................................. ............ 359
E. Completion or Incompletion of the Electoral Count?.. 360
F. The Relevance of the Twentieth Amendment? ............. 361
INTRODUCTION
It is Election Night 2020. This time it is all eyes on Pennsylvania, as
whoever wins the Keystone State will win an Electoral College majority.
Trump is ahead in the state by 20,000 votes, and he is tweeting “The race
is over. Another four years to keep Making America Great Again.”
The Associated Press (AP) and the networks have not yet declared
Trump winner. Although 20,000 is a sizable lead, they have learned in
recent years that numbers can shift before final, official certification of
election results. They are afraid of “calling” the election for Trump, only
to find themselves needing to retract the call—as they embarrassingly did
twenty years earlier, in 2000. Trump’s Democratic opponent, _________
(fill in the blank with whichever candidate you prefer; I will pick
Elizabeth Warren since at the moment she is the front-runner according
to prediction markets),1 is not conceding, claiming the race still too close
to call. Both candidates end the night without going in front of the
cameras.
In the morning, new numbers show Trump’s lead starting to slip, and
by noon it is below 20,000. Impatient, Trump holds an impromptu press
conference and announces:
I’ve won reelection. The results last night showed that I won
Pennsylvania by over 20,000 votes. Those results were complete, with
100 percent of precincts reporting. As far as I’m concerned, those
results are now final. I’m not going to let machine politicians in
Philadelphia steal my reelection victory from me—or from my voters!
Despite Trump’s protestations, the normal process of canvassing
election returns continues in Pennsylvania, and updated returns continue
to show Trump’s lead slipping away. First, it drops below 15,000. Then
10,000. Then 5,000. As this happens, Trump’s tweets become
increasingly incensed—and incendiary. “STOP THIS THEFT RIGHT NOW!!!”
“DON’T LET THEM STEAL THIS ELECTION FROM YOU!!!”
Protestors take to the streets, in Pennsylvania and elsewhere. So far,
the demonstrations, while rancorous, have remained nonviolent. Amid
police protection, the canvassing process in Pennsylvania has continued,
and Trump’s lead in the state diminishes even further.
Then, several days later, the lead flips. Now, Warren is ahead in
Pennsylvania. First by only a few hundred votes. Then, by a couple of
thousand votes. Although the AP and networks continue to declare the
race “too close to call,” it is Warren’s turn to take to the cameras declaring
victory.
Trump insists, by tweet and microphone, “THIS THEFT WILL NOT
STAND!!!” “WE ARE TAKING BACK OUR VICTORY.”
So begins the saga over the disputed result of the 2020 presidential
election.
This scenario is certainly plausible. Pennsylvania is, indeed, a pivotal
state in the 2020 presidential election—and potentially poised to be the
single state upon which the entire election turns. That role could also fall
to Wisconsin, or Florida again, or even Arizona. But it just as easily could
be Pennsylvania.2
Moreover, if the idea of a 20,000-lead on Election Night evaporating
entirely during the canvassing of returns seems implausible, think again.
Trump’s lead over Hillary Clinton in Pennsylvania did not disappear
completely, but it did drop by over 20,000 votes—23,659, to be precise—
between Election Night and the final, official certification of the result in
the state.3 Nor was that a fluke. In 2018, the Democratic candidates for
both governor and United States senator in Pennsylvania increased their
leads over their Republican opponents by over 28,000 votes during the
equivalent canvassing period in that midterm election.4 Moreover, in
each of the three presidential elections before 2016 (2004, 2008, and
2012), the Democratic candidate gained over 22,000 votes in
Pennsylvania between Election Night and final certification of the official
results.5
Thus, it is not unreasonable to expect Trump’s Democratic opponent
in 2020 to gain on Trump by over 20,000 votes in Pennsylvania during
the period between Election Night and the final, official certification of
the canvass. The key question is whether this kind of gain simply extends
a lead that the Democratic candidate already has, comparable to what
occurred in two statewide races in 2018. Or whether, instead, it cuts into
a lead that Trump starts with on Election Night—and, if so, whether it is
enough of a gain for Trump’s Democratic opponent to overcome Trump’s
Election Night lead. In 2016, Hillary Clinton’s gain of 23,659 votes
during the canvassing process was not enough to flip Pennsylvania to her
column. Instead, it reduced a Trump lead of 67,951 in the state to “only”
44,292.
6 But in 2020 a comparable gain for the Democrat could erase
entirely a 21,000-vote Election Night lead for Trump, converting the
result into a 2,500-vote margin of victory for the Democrat.
Pennsylvania is hardly aberrational in producing this kind of gain for
Democratic candidates during the canvassing process. Although this
phenomenon is still not widely understood by the electorate generally,
scholars and even the media have begun to take notice. In 2014, I
published an article entitled The Big Blue Shift to draw attention to this
development, hypothesizing that it is best explained as an unintended
byproduct of electoral reforms adopted in the wake of the 2000 fiasco,
most specifically the advent of provisional ballots and the increased use
of absentee voting.
7 (One possible factor is that provisional ballots, which
became nationally mandated by the Help America Vote Act of 2002 and
which are necessarily counted during the canvassing process after
Election Night once their validity has been verified, tend to be cast by
voters of demographic groups who support Democratic candidates. But
while this factor undoubtedly contributes to the phenomenon, the number
of provisional ballots generally is not large enough to account for the
entirely of the “blue shift” phenomenon, and the remainder of the
explanation is still uncertain.) Whatever the exact causal mechanism—
we are still in the early stages of studying the phenomenon—this kind of
“overtime” gain by Democrats, after Election Night and before final
certification of the canvass, achieved national salience in the 2018
midterms.8
Indeed, this blue shift flipped the result of one major election: the
Arizona US Senate race. Martha McSally, the Republican candidate, held
a lead of 15,403 votes a day after Election Day.9 But by the time the
canvassing of returns was complete, her Democratic opponent, Kyrsten
Sinema had won by 55,900—a gigantic overtime gain of 71,303 votes
during the canvassing process.
10
But most consideration of the blue shift in 2018 focused on Florida.
Both the United States Senate and governor’s races in that perennial
battleground ended up extremely close. A day after Election Day, the
Republican candidates were ahead in both, but by only 30,264 votes in
the Senate race and only 50,879 in the gubernatorial election.11 As the
blue shift started to erode these leads, Republicans became fearful that
their leads, like McSally’s in Arizona, might disappear completely.
Trump himself took to Twitter, proclaiming: “The Florida Election
should be called in favor of Rick Scott and Ron DeSantis in that large
numbers of new ballots showed up out of nowhere, and many ballots are
missing or forged. An honest vote count is no longer possible-ballots
massively infected. Must go with Election Night!”12
Ultimately, the GOP held on to win both these statewide races. The
Democratic candidate for Senate, incumbent Bill Nelson, gained 20,231
votes during the canvass, but that still left Rick Scott with a narrow
10,033-vote margin of victory.
13 Likewise, the Democratic candidate for
governor, Andrew Gillum, gained 18,416, leaving Ron DeSantis with a
somewhat more comfortable 32,463-vote margin.14
Still, 2018 made this much clear: If the blue shift in a prominent
midterm election can cause Trump to tweet about sticking with the
Election Night tally in order to preserve a Republican lead, it is easy to
imagine him doing something similar in the context of his own reelection
effort in 2020. Thus, if Pennsylvania were to end up the pivotal state in
the presidential election, and if Trump were to have a narrow lead there
on Election Night, we can expect him to do whatever he can—tweeting
and more—to freeze that lead in place and prevent a blue shift from
erasing it.
We can endeavor to contemplate all the different ways Trump might
try to stop an Election Night lead from slipping away, whether through
litigation or otherwise. Fundamentally, however, it makes sense to focus
on the possibility that there remains a basic conflict over the outcome of
a pivotal state, like Pennsylvania. On the one hand, Trump keeps insisting
that only the Election Night results, which show him in the lead, are valid.
On the other hand, if the canvassing process does show that lead
evaporating, thereby putting Trump’s Democratic opponent ahead (or
even just potentially so), then the Democrats will insist that the results
shown by the canvass are the valid ones. The key question, then, is how
this basic dispute plays out—and ultimately gets resolved.
I. FROM NOVEMBER 3, 2020 THROUGH DECEMBER 14, 2020
A. What Could Happen
Despite protests and counter-protests, and lawsuits and counterlawsuits—each side accusing the other of attempting to steal an election
that is rightfully theirs—Pennsylvania’s election officials certify the
result as a miniscule 2,500-vote victory for Warren, based on the strength
of the “overtime” votes counted during the canvassing process. This
official certification, of course, is not technically that Warren herself has
won Pennsylvania’s electoral votes, but rather than the slate of
presidential electors pledged to Warren have won, based on the popular
vote, the right to serve as the state’s electors. Pennsylvania’s governor so
certifies pursuant to state law.15 Also, as required by Congress, the
governor sends this “certificate of ascertainment” to the National
Archives, thereby notifying the federal government who has been
officially appointed the state’s electors.16 These electors then meet on the
day appointed by Congress (Monday, December 14) and indeed cast their
20 electoral votes for Warren. These electors then dutifully transmit a
certificate of their votes to “the President of the Senate,” as well as
sending a copy to the National Archives, both submissions as specified
by Congress.17
But this is not all that happens in Pennsylvania during this time. At
Trump’s urging, the state’s legislature—where Republicans have
majorities in both houses—purports to exercise its authority under Article
II of the Constitution to appoint the state’s presidential electors directly.
Taking their cue from Trump, both legislative chambers claim that the
certified popular vote cannot be trusted because of the blue shift that
occurred in overtime. Therefore, the two chambers claim to have the
constitutional right to supersede the popular vote and assert direct
authority to appoint the state’s presidential electors, so that this
appointment is in line with the popular vote tally as it existed on Election
Night, which Trump continues to claim is the “true” outcome. The state’s
Democratic governor refuses to assent to this assertion of authority by the
state’s legislature, but the legislature’s two chambers proclaim that the
governor’s assent is unnecessary. They cite early historical practices in
which state legislatures appointed presidential electors without any
involvement of the state’s governor.
18 They argue that like constitutional
amendments, and unlike ordinary legislation, the appointment of
presidential electors when undertaken directly by a state legislature is not
subject to a gubernatorial veto.19
Although the governor refuses to certify this direct legislative
appointment of presidential electors, the Republican-pledged electors
who have been purportedly appointed by the legislature proceed to
conduct their own meeting on the day that Congress has specified for the
casting of electoral votes (again, Monday, December 14). At this meeting,
they cast “their” 20 electoral votes for Trump. They, too, purport to
certify these votes by sending a certificate to the President of the Senate
and a copy to the National Archives, according to the procedures
specified by Congress.
Thus, when Congress meets on January 6, 2021 to count the electoral
votes from the states, there are two conflicting certificates of electoral
votes from Pennsylvania. One submission, from the Democratic electors
and reflecting the governor’s certificate of ascertainment, records
Pennsylvania’s 20 electoral votes for Warren. The other, from the
Republican electors and reflecting the legislature’s purported direct
appointment, records Pennsylvania’s electoral votes for Trump.
And so, the controversy over Pennsylvania has reached Congress.
B. Analysis
It might seem far-fetched to think that the Pennsylvania legislature
would attempt to negate the popular vote of the state’s electorate in the
2020 presidential election. Even with Trump urging Republicans to make
this move, it might be too much of a power grab. One would hope that
American politics have not become so tribal that a political party is
willing to seize power without a plausible basis for doing so rooted in the
actual votes of the citizenry.20
Thus, ultimately, the likelihood of this scenario occurring may depend
upon how much doubt can be cast upon the officially certified canvass of
the popular vote—and thus the plausibility of the claim that the blue shift
in the overtime count amounts to a theft of an Election Night victory that
was rightfully Trump’s. If during the canvass itself, Trump can gain
traction with his allegation that the blue shift amounts to fraudulently
fabricated ballots—along the lines of his 2018 tweet about Florida—then
it becomes more politically tenable to claim that the legislature must step
in and appoint the state’s electors directly to reflect the “true” will of the
state’s voters, who otherwise would be deprived of the result they
mandated as reflected on Election Night. (In 2000, Florida’s legislature
was preparing to take this kind of step, which became unnecessary once
the Supreme Court halted the recount.)21
Unless and until we are in the midst of the situation itself, we can only
speculate the kind of allegations that might be raised in an effort to cast
doubt on overtime votes counted during the canvass. Presumably
provisional ballots would be attacked as ineligible for counting, as would
any absentee ballots not previously counted, because when one is ahead
and attempting to preserve a lead, the goal is to shut down the counting
process as much as possible. Heavily Democratic precincts would be
closely scrutinized for any voting irregularities. An effort might be made
to invalidate entire precincts, especially in urban areas, based on slight
discrepancies—as often occur for innocent reasons—between the number
of voters who sign the precinct’s pollbooks and the number of ballots cast
in the precinct.22 Drawing upon the historical legacy of improper
practices conducted by big-city machine politicians, including in
Philadelphia, one can easily imagine Trump and his Republican
supporters pointing to any evidence that might support a narrative of
Philadelphian misdeeds undermining his victory. It would not take much
to set this tale spinning. Remember what happened in Florida in 2018,
specifically in Broward County: There, the local election administrator
acted improperly with respect to the handling of ballots, and that became
a potential basis for challenging the entire result statewide. If something
similar happened in Philadelphia, one can imagine that Republicans
would invoke it as grounds for discarding the results of the canvass and
substituting instead directly appointed presidential electors.
Undoubtedly, Trump would go to court in an effort to prevent
certification of the canvass based on the blue shift “overtime” vote. He
would certainly be in a more favorable posture if a judicial decree blocked
the counting of these extra votes and required, instead, that the canvass
be certified with a result showing Trump having won the popular vote in
the state. Even better, from Trump’s perspective, would be a court order
requiring the state’s governor to certify a popular vote victory for his
Republican slate of electors. Then there would be no need for the state
legislature to appoint the Republican electors directly, and no conflicting
submissions to Congress of two separate certificates of electoral votes
from Pennsylvania. Instead, the President of the Senate would receive a
single submission, based on this judicial decree, showing only Trump to
have won the state’s 20 electoral votes. Thus, Trump almost certainly
would try to obtain this kind of court decree, either from state or federal
court—or even both.
But Trump need not win in court in order to press his case to Congress.
As long as he gets the state legislature to appoint his presidential electors
directly, and those electors submit their purported electoral votes to the
President of the Senate—who happens to be his vice president, Mike
Pence—he has a fighting chance. His position is much weaker than if
Pennsylvania sends Pence only one certificate of electoral votes that
supports him. But Trump has no chance at all if Pennsylvania sends only
one certificate that supports Warren.
23 Thus, if Trump cannot get a court
to block the governor’s certificate of ascertainment showing Warren’s
electors as duly appointed based on their popular-vote victory, then it is
imperative from Trump’s perspective that the state legislature purport to
supersede this popular vote with its own direct appointment of the state’s
54 pages in total - https://www.luc.edu/media/lucedu/law/students/publications/llj/pdfs/vol-51/issue-2/7_Foley%20(309-362).pdf
But many of us predicted many things - as they were clearly telegraphed IMO and they didn't even bother to hide many things. :rolleyes:
An interesting read.
----
University Document Published in September 2019 Details 2020 Election to a Frightening Precision
Ron at CodeMonkeyZ tweeted out a document published in September 2019 that lays out the Democrat Party’s plan if they find themselves in a major dispute in the 2020 election.
Ron has been following the 2020 election closely since Democrats attempted their steal in early November.
This document was published by Edward B. Foley the Ebersold Chair in Constitutional Law and Director, Election Law @ Moritz, Ohio State University Moritz College of Law.
https://i.imgur.com/axwdHuf.png
The document even includes Arizona and Pennsylvania as contested states in their scenario.
In the document Foley uses Liz Warren as their candidate since she was ahead in polling at the time but it could have been any of the candidates since the Democrats were going to steal the votes no matter who was their candidate.
Rest - https://www.thegatewaypundit.com/2020/12/university-document-published-september-2019-details-2020-election-frightening-precision/
Here are the first 10 pages for anyone truly interested:
Preparing for a Disputed Presidential Election:
An Exercise in Election Risk Assessment
and Management
Edward B. Foley*
This Article considers the possibility that a major dispute over the
outcome of the 2020 presidential election could arise, even without foreign
interference or some other extraordinary event, but rather just from the
ordinary process of counting ballots. Building upon previous research on
the “blue shift” phenomenon, whereby adjustments in vote tallies during the
canvassing of returns tends to advantage Democratic candidates, it is easy
to imagine a dispute arising if this kind of “blue shift” were consequential
in the presidential race. Using examples from both Pennsylvania and
Arizona, two states susceptible to significant “blue shifts” in previous
elections, the article shows how the dispute could reach Congress, where it
potentially might metastasize into a full-fledged constitutional crisis. The
most frightening scenario is where the dispute remains unresolved on
January 20, 2021, the date for the inauguration of the new presidential term,
and the military is uncertain as to who is entitled to receive the nuclear codes
as commander-in-chief. In order to avoid this risk, Congress should amend
the relevant statute, 3 U.S.C. § 15.
INTRODUCTION .................................................. ........................... 310
I. FROM NOVEMBER 3, 2020 THROUGH DECEMBER 14, 2020....... 315
A. What Could Happen............................................ ......... 315
B. Analysis.......................................... .............................. 316
II. FROM JANUARY 6, 2021, THROUGH JANUARY 20, 2021........... 321
A. What Could Happen............................................ ......... 321
B. Analysis.......................................... .............................. 323
1. The Electoral Count Act........................................ 329
III. JANUARY 6, 2021, THROUGH JANUARY 20, 2021 ................... 335
A. What Could Happen............................................ ......... 335
B. Analysis: The Arizona Alternative ............................... 339
IV. THE ROLE OF THE SUPREME COURT IN POTENTIAL ELECTORAL
COUNT CONTROVERSIES .................................................. ..... 341
A. Before the Electoral College Meets on Monday,
December 14 .................................................. ............ 343
B. Between December 14 and January 6 ......................... 345
C. Between January 6 and January 20............................. 348
CONCLUSION........................................ ......................................... 350
APPENDIX .................................................. ................................... 351
A. Text of the Electoral Count Act.................................... 351
B. Existing Interpretations of 3 U.S.C. § 15..................... 356
C. Other Ambiguities Concerning 3 U.S.C. § 15 ............. 358
D. The Consequence of Not Counting Any Electoral Votes
from a State? .................................................. ............ 359
E. Completion or Incompletion of the Electoral Count?.. 360
F. The Relevance of the Twentieth Amendment? ............. 361
INTRODUCTION
It is Election Night 2020. This time it is all eyes on Pennsylvania, as
whoever wins the Keystone State will win an Electoral College majority.
Trump is ahead in the state by 20,000 votes, and he is tweeting “The race
is over. Another four years to keep Making America Great Again.”
The Associated Press (AP) and the networks have not yet declared
Trump winner. Although 20,000 is a sizable lead, they have learned in
recent years that numbers can shift before final, official certification of
election results. They are afraid of “calling” the election for Trump, only
to find themselves needing to retract the call—as they embarrassingly did
twenty years earlier, in 2000. Trump’s Democratic opponent, _________
(fill in the blank with whichever candidate you prefer; I will pick
Elizabeth Warren since at the moment she is the front-runner according
to prediction markets),1 is not conceding, claiming the race still too close
to call. Both candidates end the night without going in front of the
cameras.
In the morning, new numbers show Trump’s lead starting to slip, and
by noon it is below 20,000. Impatient, Trump holds an impromptu press
conference and announces:
I’ve won reelection. The results last night showed that I won
Pennsylvania by over 20,000 votes. Those results were complete, with
100 percent of precincts reporting. As far as I’m concerned, those
results are now final. I’m not going to let machine politicians in
Philadelphia steal my reelection victory from me—or from my voters!
Despite Trump’s protestations, the normal process of canvassing
election returns continues in Pennsylvania, and updated returns continue
to show Trump’s lead slipping away. First, it drops below 15,000. Then
10,000. Then 5,000. As this happens, Trump’s tweets become
increasingly incensed—and incendiary. “STOP THIS THEFT RIGHT NOW!!!”
“DON’T LET THEM STEAL THIS ELECTION FROM YOU!!!”
Protestors take to the streets, in Pennsylvania and elsewhere. So far,
the demonstrations, while rancorous, have remained nonviolent. Amid
police protection, the canvassing process in Pennsylvania has continued,
and Trump’s lead in the state diminishes even further.
Then, several days later, the lead flips. Now, Warren is ahead in
Pennsylvania. First by only a few hundred votes. Then, by a couple of
thousand votes. Although the AP and networks continue to declare the
race “too close to call,” it is Warren’s turn to take to the cameras declaring
victory.
Trump insists, by tweet and microphone, “THIS THEFT WILL NOT
STAND!!!” “WE ARE TAKING BACK OUR VICTORY.”
So begins the saga over the disputed result of the 2020 presidential
election.
This scenario is certainly plausible. Pennsylvania is, indeed, a pivotal
state in the 2020 presidential election—and potentially poised to be the
single state upon which the entire election turns. That role could also fall
to Wisconsin, or Florida again, or even Arizona. But it just as easily could
be Pennsylvania.2
Moreover, if the idea of a 20,000-lead on Election Night evaporating
entirely during the canvassing of returns seems implausible, think again.
Trump’s lead over Hillary Clinton in Pennsylvania did not disappear
completely, but it did drop by over 20,000 votes—23,659, to be precise—
between Election Night and the final, official certification of the result in
the state.3 Nor was that a fluke. In 2018, the Democratic candidates for
both governor and United States senator in Pennsylvania increased their
leads over their Republican opponents by over 28,000 votes during the
equivalent canvassing period in that midterm election.4 Moreover, in
each of the three presidential elections before 2016 (2004, 2008, and
2012), the Democratic candidate gained over 22,000 votes in
Pennsylvania between Election Night and final certification of the official
results.5
Thus, it is not unreasonable to expect Trump’s Democratic opponent
in 2020 to gain on Trump by over 20,000 votes in Pennsylvania during
the period between Election Night and the final, official certification of
the canvass. The key question is whether this kind of gain simply extends
a lead that the Democratic candidate already has, comparable to what
occurred in two statewide races in 2018. Or whether, instead, it cuts into
a lead that Trump starts with on Election Night—and, if so, whether it is
enough of a gain for Trump’s Democratic opponent to overcome Trump’s
Election Night lead. In 2016, Hillary Clinton’s gain of 23,659 votes
during the canvassing process was not enough to flip Pennsylvania to her
column. Instead, it reduced a Trump lead of 67,951 in the state to “only”
44,292.
6 But in 2020 a comparable gain for the Democrat could erase
entirely a 21,000-vote Election Night lead for Trump, converting the
result into a 2,500-vote margin of victory for the Democrat.
Pennsylvania is hardly aberrational in producing this kind of gain for
Democratic candidates during the canvassing process. Although this
phenomenon is still not widely understood by the electorate generally,
scholars and even the media have begun to take notice. In 2014, I
published an article entitled The Big Blue Shift to draw attention to this
development, hypothesizing that it is best explained as an unintended
byproduct of electoral reforms adopted in the wake of the 2000 fiasco,
most specifically the advent of provisional ballots and the increased use
of absentee voting.
7 (One possible factor is that provisional ballots, which
became nationally mandated by the Help America Vote Act of 2002 and
which are necessarily counted during the canvassing process after
Election Night once their validity has been verified, tend to be cast by
voters of demographic groups who support Democratic candidates. But
while this factor undoubtedly contributes to the phenomenon, the number
of provisional ballots generally is not large enough to account for the
entirely of the “blue shift” phenomenon, and the remainder of the
explanation is still uncertain.) Whatever the exact causal mechanism—
we are still in the early stages of studying the phenomenon—this kind of
“overtime” gain by Democrats, after Election Night and before final
certification of the canvass, achieved national salience in the 2018
midterms.8
Indeed, this blue shift flipped the result of one major election: the
Arizona US Senate race. Martha McSally, the Republican candidate, held
a lead of 15,403 votes a day after Election Day.9 But by the time the
canvassing of returns was complete, her Democratic opponent, Kyrsten
Sinema had won by 55,900—a gigantic overtime gain of 71,303 votes
during the canvassing process.
10
But most consideration of the blue shift in 2018 focused on Florida.
Both the United States Senate and governor’s races in that perennial
battleground ended up extremely close. A day after Election Day, the
Republican candidates were ahead in both, but by only 30,264 votes in
the Senate race and only 50,879 in the gubernatorial election.11 As the
blue shift started to erode these leads, Republicans became fearful that
their leads, like McSally’s in Arizona, might disappear completely.
Trump himself took to Twitter, proclaiming: “The Florida Election
should be called in favor of Rick Scott and Ron DeSantis in that large
numbers of new ballots showed up out of nowhere, and many ballots are
missing or forged. An honest vote count is no longer possible-ballots
massively infected. Must go with Election Night!”12
Ultimately, the GOP held on to win both these statewide races. The
Democratic candidate for Senate, incumbent Bill Nelson, gained 20,231
votes during the canvass, but that still left Rick Scott with a narrow
10,033-vote margin of victory.
13 Likewise, the Democratic candidate for
governor, Andrew Gillum, gained 18,416, leaving Ron DeSantis with a
somewhat more comfortable 32,463-vote margin.14
Still, 2018 made this much clear: If the blue shift in a prominent
midterm election can cause Trump to tweet about sticking with the
Election Night tally in order to preserve a Republican lead, it is easy to
imagine him doing something similar in the context of his own reelection
effort in 2020. Thus, if Pennsylvania were to end up the pivotal state in
the presidential election, and if Trump were to have a narrow lead there
on Election Night, we can expect him to do whatever he can—tweeting
and more—to freeze that lead in place and prevent a blue shift from
erasing it.
We can endeavor to contemplate all the different ways Trump might
try to stop an Election Night lead from slipping away, whether through
litigation or otherwise. Fundamentally, however, it makes sense to focus
on the possibility that there remains a basic conflict over the outcome of
a pivotal state, like Pennsylvania. On the one hand, Trump keeps insisting
that only the Election Night results, which show him in the lead, are valid.
On the other hand, if the canvassing process does show that lead
evaporating, thereby putting Trump’s Democratic opponent ahead (or
even just potentially so), then the Democrats will insist that the results
shown by the canvass are the valid ones. The key question, then, is how
this basic dispute plays out—and ultimately gets resolved.
I. FROM NOVEMBER 3, 2020 THROUGH DECEMBER 14, 2020
A. What Could Happen
Despite protests and counter-protests, and lawsuits and counterlawsuits—each side accusing the other of attempting to steal an election
that is rightfully theirs—Pennsylvania’s election officials certify the
result as a miniscule 2,500-vote victory for Warren, based on the strength
of the “overtime” votes counted during the canvassing process. This
official certification, of course, is not technically that Warren herself has
won Pennsylvania’s electoral votes, but rather than the slate of
presidential electors pledged to Warren have won, based on the popular
vote, the right to serve as the state’s electors. Pennsylvania’s governor so
certifies pursuant to state law.15 Also, as required by Congress, the
governor sends this “certificate of ascertainment” to the National
Archives, thereby notifying the federal government who has been
officially appointed the state’s electors.16 These electors then meet on the
day appointed by Congress (Monday, December 14) and indeed cast their
20 electoral votes for Warren. These electors then dutifully transmit a
certificate of their votes to “the President of the Senate,” as well as
sending a copy to the National Archives, both submissions as specified
by Congress.17
But this is not all that happens in Pennsylvania during this time. At
Trump’s urging, the state’s legislature—where Republicans have
majorities in both houses—purports to exercise its authority under Article
II of the Constitution to appoint the state’s presidential electors directly.
Taking their cue from Trump, both legislative chambers claim that the
certified popular vote cannot be trusted because of the blue shift that
occurred in overtime. Therefore, the two chambers claim to have the
constitutional right to supersede the popular vote and assert direct
authority to appoint the state’s presidential electors, so that this
appointment is in line with the popular vote tally as it existed on Election
Night, which Trump continues to claim is the “true” outcome. The state’s
Democratic governor refuses to assent to this assertion of authority by the
state’s legislature, but the legislature’s two chambers proclaim that the
governor’s assent is unnecessary. They cite early historical practices in
which state legislatures appointed presidential electors without any
involvement of the state’s governor.
18 They argue that like constitutional
amendments, and unlike ordinary legislation, the appointment of
presidential electors when undertaken directly by a state legislature is not
subject to a gubernatorial veto.19
Although the governor refuses to certify this direct legislative
appointment of presidential electors, the Republican-pledged electors
who have been purportedly appointed by the legislature proceed to
conduct their own meeting on the day that Congress has specified for the
casting of electoral votes (again, Monday, December 14). At this meeting,
they cast “their” 20 electoral votes for Trump. They, too, purport to
certify these votes by sending a certificate to the President of the Senate
and a copy to the National Archives, according to the procedures
specified by Congress.
Thus, when Congress meets on January 6, 2021 to count the electoral
votes from the states, there are two conflicting certificates of electoral
votes from Pennsylvania. One submission, from the Democratic electors
and reflecting the governor’s certificate of ascertainment, records
Pennsylvania’s 20 electoral votes for Warren. The other, from the
Republican electors and reflecting the legislature’s purported direct
appointment, records Pennsylvania’s electoral votes for Trump.
And so, the controversy over Pennsylvania has reached Congress.
B. Analysis
It might seem far-fetched to think that the Pennsylvania legislature
would attempt to negate the popular vote of the state’s electorate in the
2020 presidential election. Even with Trump urging Republicans to make
this move, it might be too much of a power grab. One would hope that
American politics have not become so tribal that a political party is
willing to seize power without a plausible basis for doing so rooted in the
actual votes of the citizenry.20
Thus, ultimately, the likelihood of this scenario occurring may depend
upon how much doubt can be cast upon the officially certified canvass of
the popular vote—and thus the plausibility of the claim that the blue shift
in the overtime count amounts to a theft of an Election Night victory that
was rightfully Trump’s. If during the canvass itself, Trump can gain
traction with his allegation that the blue shift amounts to fraudulently
fabricated ballots—along the lines of his 2018 tweet about Florida—then
it becomes more politically tenable to claim that the legislature must step
in and appoint the state’s electors directly to reflect the “true” will of the
state’s voters, who otherwise would be deprived of the result they
mandated as reflected on Election Night. (In 2000, Florida’s legislature
was preparing to take this kind of step, which became unnecessary once
the Supreme Court halted the recount.)21
Unless and until we are in the midst of the situation itself, we can only
speculate the kind of allegations that might be raised in an effort to cast
doubt on overtime votes counted during the canvass. Presumably
provisional ballots would be attacked as ineligible for counting, as would
any absentee ballots not previously counted, because when one is ahead
and attempting to preserve a lead, the goal is to shut down the counting
process as much as possible. Heavily Democratic precincts would be
closely scrutinized for any voting irregularities. An effort might be made
to invalidate entire precincts, especially in urban areas, based on slight
discrepancies—as often occur for innocent reasons—between the number
of voters who sign the precinct’s pollbooks and the number of ballots cast
in the precinct.22 Drawing upon the historical legacy of improper
practices conducted by big-city machine politicians, including in
Philadelphia, one can easily imagine Trump and his Republican
supporters pointing to any evidence that might support a narrative of
Philadelphian misdeeds undermining his victory. It would not take much
to set this tale spinning. Remember what happened in Florida in 2018,
specifically in Broward County: There, the local election administrator
acted improperly with respect to the handling of ballots, and that became
a potential basis for challenging the entire result statewide. If something
similar happened in Philadelphia, one can imagine that Republicans
would invoke it as grounds for discarding the results of the canvass and
substituting instead directly appointed presidential electors.
Undoubtedly, Trump would go to court in an effort to prevent
certification of the canvass based on the blue shift “overtime” vote. He
would certainly be in a more favorable posture if a judicial decree blocked
the counting of these extra votes and required, instead, that the canvass
be certified with a result showing Trump having won the popular vote in
the state. Even better, from Trump’s perspective, would be a court order
requiring the state’s governor to certify a popular vote victory for his
Republican slate of electors. Then there would be no need for the state
legislature to appoint the Republican electors directly, and no conflicting
submissions to Congress of two separate certificates of electoral votes
from Pennsylvania. Instead, the President of the Senate would receive a
single submission, based on this judicial decree, showing only Trump to
have won the state’s 20 electoral votes. Thus, Trump almost certainly
would try to obtain this kind of court decree, either from state or federal
court—or even both.
But Trump need not win in court in order to press his case to Congress.
As long as he gets the state legislature to appoint his presidential electors
directly, and those electors submit their purported electoral votes to the
President of the Senate—who happens to be his vice president, Mike
Pence—he has a fighting chance. His position is much weaker than if
Pennsylvania sends Pence only one certificate of electoral votes that
supports him. But Trump has no chance at all if Pennsylvania sends only
one certificate that supports Warren.
23 Thus, if Trump cannot get a court
to block the governor’s certificate of ascertainment showing Warren’s
electors as duly appointed based on their popular-vote victory, then it is
imperative from Trump’s perspective that the state legislature purport to
supersede this popular vote with its own direct appointment of the state’s
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