Cheney

[Douglas Laycock]

        I agree with Rich that it would make sense for the Joint Session of
Congress to review disputes about certified votes.  But there is no express
provision for that.  Nor is there an express statement that the
certification of each state's electors is final.  It reads as though it did
not occur to them that there might be a dispute about certified votes.

        I have not checked, but I think the problem in 1876 was two sets of
electors in each of three states, and thus two sets of certified votes.
That makes it obvious that someone must decide which set of certifications
to accept.  This is a slightly harder case.

        As I think about it, the way it arises is that Al Gore opens the Texas
envelope, and whoever are serving as tellers report 32 votes for George
Bush and 32 votes for Richard Cheney.  At that point, someone objects that
these are unconstitutional votes.  And after that, they are on their own.

At 05:03 PM 07/25/2000 -0400, you wrote:
>In response to Doug, I'm not sure that the electors'  decision as to
>residence is authoritative.  I think that the sealing makes the certified
>votes authoritative that these are the votes of the electors, but I'm not
>sure it resolves  the residence issue.  Why wouldn't the authoritative body
>be whoever is supposed to count the votes, presumably the Senate or somehow
>Congress jointly?  (I don't think this matter was resolved in 1876, was
>it?)  Electors have a systematic interest in the matter (home-state
>interest), so it would make sense for some other entity to be the judge.
>
>By the way if the Republicans are worried about the problem, they could get
>their act together to halve the window in which it arises.  If I recall
>right, TX has 32 electoral votes.  So if apart from TX Bush gets 270 or
>more, or 238 or less, the problem doesn't arise.   If he gets between 254
>and 269 and they're risk averse, they should just split the TX delegation
>and both get elected without question.  Between 239 and 253, they'd have to
>choose either to elect Bush without question, leaving the election of the
>VP to the Senate, or go for an electoral victory for both candidates and
>face a potential issue in Congress.
>
>Rich Friedman
>


Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
        512-232-1341 (phone)
        512-471-6988 (fax)
        dlaycock at mail.law.utexas.edu