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Mail-in ballot count behind schedule in Pennsylvania
03:45 - Source: CNN

Editor’s Note: CNN host Van Jones is the CEO of the REFORM Alliance, a criminal justice organization. Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School and the author of the book They Don’t Represent Us: Reclaiming Our Democracy. The views expressed in this commentary are their own. View more opinion on CNN.

CNN  — 

Election night is over, but the election is not. And given the unexpectedly tight race, Pennsylvania’s 20 electoral votes may be those that decide who wins the White House. To be sure, Biden still has a path to victory that doesn’t involve Pennsylvania, but he could end up needing the state if he suffers reverses elsewhere.

Van Jones
Lawrence Lessig

The key for Pennsylvania to have an orderly and complete vote count is for the state to take its time. And the key precedent that should show Pennsylvania that it may take its time is not Florida in 2000, but Hawaii in 1960. Even though Richard Nixon said it should not be a precedent, what he did in 1960 should be the model for this election in 2020.

In 1960, Hawaii’s vote was incredibly close. On the first count, Nixon had beaten John F. Kennedy by 141 votes. On November 28, the acting governor certified a Republican slate of electors. They met on December 19 and cast their ballots for Nixon.

But a recount showed that, in fact, Kennedy had won the popular vote by an even closer margin of 115 votes. That recount had been completed on December 30, 11 days after the Republican electors from Hawaii had cast their votes for Nixon. Five days later, the governor sent Congress a new certification of electors, this time naming the Democratic electors as the electors properly chosen by Hawaii’s voters. That certification arrived in Congress on January 6, the day that Congress was to count the electoral votes. When then Vice President Nixon, who the Constitution had set as the custodian of the electoral votes, began to “open all the certificates” as the Constitution directs him, and came to Hawaii in the list of states, he announced that there were two slates of electors from Hawaii, one Republican and one Democratic.

This was not the first time that Congress had been sent multiple slates of electors from a single state. In 1876, because of fierce partisan conflict, a handful of states had each sent two slates of electors to Congress, triggering a constitutional crisis that could easily have triggered a second Civil War.

Eleven years later, Congress enacted a statute to resolve such conflicts. In the election after the enactment of the Electoral Count Act of 1887, Oregon sent a second set of returns as a joke. This time, the second slate was discarded without any fear of civil war. (The record does not indicate whether anyone laughed at the joke.)

But Hawaii is the only case since 1876 when a state, with sincerity, sent the votes of more than one slate of electors to Congress. And while the three votes from America’s 50th state would ultimately not matter to the result, they could have. Had the tight Illinois race – which Kennedy won by around 9,000 votes – gone for Nixon and shifted a few reluctant Democrats in the Dixiecrat south, Hawaii’s votes could have flipped the result from Kennedy to Nixon.

In the days leading up to January 6, Nixon’s team had tried hard to engineer such a result. But it was clear on the morning of the 6th that they had failed. Nixon accepted his fate and chose not to allow any Congressional challenge of the second slate of Democratic electors from Hawaii. As he is 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 here is this: The Constitution specifies that it is Congress that sets the day on which the electors must meet in their own state to cast their ballots. That day must be the same across the United States. The framers’ design was meant to avoid any possible coordination by electors from different states. Modern communications technology was just one more innovation the framers never anticipated. So if the Hawaii Democratic slate was only certified on January 4, how could they have voted more than two weeks earlier, on December 19, 1960?

The key – and this is the critical fact for 2020 as well  –  is that the Democratic slate had also met on December 19, and had also cast their ballots in the manner specified by the Constitution. When they voted, no one knew whether their votes would matter. But at least someone recognized that the only way their votes could matter was if they were cast on the day that Congress had set. History does not record who had that genius legal insight.

That insight shows what should happen this year on December 14, 2020, when the electors are to meet to cast their ballots. On that day, assuming the final count of the popular votes has not yet been certified, both slates of Pennsylvania presidential electors should meet in Harrisburg. Both slates should cast their votes by ballot. And Pennsylvania Gov. Tom Wolf should await the final resolution of the popular vote count before he certifies which slate should represent the state. So long as that certification happens before January 6, there is nothing that should stop it from being counted by Congress.

Some might worry that this can’t be done because of the Electoral Count Act’s “safe harbor” provision that was at the core of the fight in Bush v. Gore.

Under this provision, Congress promises to count the votes of any slate of electors that has been certified at least six days before the Electoral College is to vote, under laws that had been written prior to the election. Under the scenario we’re describing here, Pennsylvania’s slate would not achieve “safe harbor” status. But the critical bit that the Supreme Court seemed to miss in Bush v. Gore is that safe harbor is not the only path to a slate being counted  – as Hawaii shows. If the state’s governor has certified only one slate, the Electoral Count Act says that is the slate that Congress must count – regardless of when it was certified.

Gov. Wolf should make these facts clear to Pennsylvanians and the nation now. He should not permit the frenzy of a “safe harbor” deadline (this year December 8) to wreck the possibility of an orderly count of Pennsylvania’s votes. Wolf should declare that he will wait until there is a final certification, whenever that is. He should declare that he will assure that both slates of electors cast their votes on December 14, so that both slates may ultimately matter.

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    It will then be up to Congress to do the right thing. And in an odd twist of fate, the right thing is to do precisely what Richard Nixon did: Count the slate certified by the governor, on the basis of the final count of the votes by the people, after an orderly and careful count in the state has determined who in fact the people had chosen. As Justice Elena Kagan said in the close to her opinion in Chiafalo v. Washington, the Presidential Elector case decided in July holding that states could direct electors to vote as the people had voted, “here, We the People rule.” We’ll see whether that’s true.