Gaming The 1887 Count Act

After noting that Ted Olsen, who argued Bush v. Gore for the Bush team, got together for a reunion op-ed with David Boies to state the obvious, that Biden won, some wag replied to me with utmost sincerity that we need to let the legal process play out. That struck a nerve with me, despite the fact that the myriad suits brought, and bizarre claims twitted, fail to meet the minimal requirements of plausibility, evidentiary support or adequacy to sustain the relief sought.

It’s not enough to raise questions. Is it possible that Men In Black is a documentary? I guess it’s possible, but are we willing to bet the Republic on it? I know, some of you are, but you also need to unzip your fly to count to 21. The burden of proof is on the party seeking relief, and while there is the outlier bad vote, the evidence has conclusively failed miserably to suggest any possibility of changing the election outcome. And so more claims, more outlandish claims barren of evidence, get spewed. Why? If there’s no plausible cause of action, no evidence, why not let the legal process play out?

Meet the Electoral Count Act in 1887. Obviously, Trump knows nothing about the nuts and bolts of the law, as he’s demonstrated conclusively over the past four years, but somebody around him did the research after he demanded that they come up with a way for him not to be humiliated. This became the scheme.

With the Electoral Count Act in 1887, Congress established the basic procedures for litigation over votes in a presidential election. A key component of the law, colloquially called the “safe harbor” provision, specifies that Congress will consider “conclusive” the “final determination” of “any controversy or contest concerning the appointment” of a state’s electors if two conditions are met.

First, this “final determination” must be made using the state’s “judicial or other methods or procedures” adopted by state laws on the books before Election Day. In other words, no changing the rules or procedures for counting ballots after they have been cast. Second, “such determination” must occur within five weeks of Election Day. With the 2020 election, that means Dec. 8.

If a state meets those two conditions, its “final determination” regarding matters involving electors will be deemed “conclusive” by Congress. The Supreme Court so ruled in Bush v. Gore when it refused to permit any recount to continue after the safe-harbor deadline, which was Dec. 12 that year.

Jam up the works. Throw anything and everything against the wall to see what sticks, or if nothing sticks, at least get the courts to have to wait to find out and say so. Maybe a judge will be sufficiently malleable to issue a TRO, delay the count or order some change in process to “assure” accuracy, and preclude the states from certifying their electors.

Trump has long held the view that judges he nominated were “his” judges, worked for him, did his bidding. This has been bolstered by the left making the same claims, not because they agree with Trump but because they want to undermine the legitimacy of the judicial branch so when a decision comes down with which they disagree, it will confirm their cries that it was rigged and judges are just partisan hacks.

If it occurs to you that these attacks at the integrity of the judiciary are just the other side of the same coin, you’re right. the Times’ Linda Greenhouse and Slate’s Mark Joseph Stern can take comfort in knowing that Team Trump thanks for them for their service.

If the Safe Harbor is blown, if the electors aren’t timely certified, if the electoral college fails to elect a president, the election is thrown into the House of Representatives, where each state gets one vote. Assuming a party line vote, this would give the election to Trump. Odd as it may seem, each state delegation would vote for the state, and Republican representatives have the right numbers and placement to control the outcome, even though there are more Democratic representatives overall. Democracy, right?

There are a lot of moving parts to this Rube Goldberg machine, but given that Trump can’t bear the humiliation of failure, was born without a gracious bone in his body and will burn every norm necessary to avoid the agony of defeat, he’s got no other choice.

So let the legal process play out?

Ordinarily, this would be the default position. After all, Trump, like anyone else, has a right to challenge the election, the tabulation, any improprieties that might give rise to a different outcome. Were the Dominion machines created by an evil cabal of communists to throw millions of votes cast for Trump to Biden? The allegation has been made by Trump’s new election law team member, Sidney Powell, conflict notwithstanding. It’s an astoundingly bizarre claim, without a scintilla of evidence behind it, but the mere claim of nefarious overarching conspiracies has legs with those who want to believe.

With claims like this of massive fraud, claims that there is evidence “coming through a firehose,” how can we possibly deny them the opportunity to present their evidence, refuse something so earth-shattering its day in court, let the legal process play out?

Saying so doesn’t make it so. It’s not the “truth” because Sidney Powell said so. If there’s evidence, show it and subject it to scrutiny such that it’s not like the evidence claimed up to now, which has proved a spectacular failure. But spinning yarns doesn’t cut it when the law provides a framework for a peaceful transition to power.

Let the legal process play out? It is and has, but like all legal processes, there are time limits involved. Come December 8th, they’ve either got the goods or they don’t. If I’m not losing sleep, or changing my mind, based on this claim, it’s only because it’s so ridiculous, the propounders are so lacking in credibility and they have been such a fabulous failure up to now.

But if they have something, they show it, they subject it to scrutiny and do so before the Safe Harbor runs out, I’m willing to change my mind. I go where the evidence takes me. I respect the legal process. What I don’t respect is baseless, frivolous, incredible claims played to try to game the law. There is no legal process to play out unless and until they show they’ve actually got something. Thus far, they haven’t.

16 thoughts on “Gaming The 1887 Count Act

  1. Jim Cline

    All I know is that after seeing Jenna Ellis on the Bill Maher show last week is should I ever need an attorney to passionately present my dubious but bound to fail claim she’ll be at the top of the list. Not so sure she’d do well in court but the press wouldn’t have a prayer.

  2. Rxc

    I know that I am not qualified to do so, but [Ed. Note: Deleted. If you’re not qualified to do so, don’t.]

    Interesting times.

  3. Richard Kopf


    I sincerely compliment you on this on this post. I knew absolutely nothing of the Electoral Count Act of 1887. (It also help to read the Counting Electoral Votes – CRS Reports, (2016).)

    Thanks for making me less dumb. All the best.


  4. AH

    I know nothing about this topic but needed to comment to commend you on this: “you also need to unzip your fly to count to 21.” I have never heard that before, but I’m already planning to steal it.

    1. JohnM

      In my life, this statement was often preceded by “Son, I swear to god you couldn’t…”

      SHG: Thanks for doing the legwork here. I feel smarter, and dare I say, sexier now that I know this.

  5. KP

    “Were the Dominion machines created by an evil cabal of communists to throw millions of votes cast for Trump to Biden?”
    Of course they were! It was proved Russia ran the elections 4years ago, ask any Democrat.

    Besides, all is fair in love and war, if it goes to your Congress & Trump wins, he won (mostly) fairly. If it doesn’t and Biden wins, he won mostly fairly too. I don’t see either of them are clean and wholesome.

    Either way, it won’t be any worse than it has been, rule by Twitter or war with China.

    1. SHG Post author

      Have you notice my intolerance of stupid today? Do you know how many comments I’ve trashed already today? Do you?

      1. KP

        Skink, I’m sure Jesus wasn’t a lawyer, like me.. I’ve never even employed a lawyer, its a completely foreign land. I come here because I enjoy the Boss, even if he is particularly curmudgeonly today!

  6. Markham Shaw Pyle

    Oh, I’d love to see the legal process play out. “You get a 12(b)(6) and Rule 11 sanctions! And YOU get a 12(b)(6) and Rule 11 sanctions! Everybody gets a 12(b)(6) and Rule 11 sanctions!”

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