TO: James R. Troupis FROM: Kenneth Chesebro DATE: December 9, 2020 RE: Statutory Requirements for December 14 Electoral Votes
Here is a summary of the requirements under federal law, and under the law of the six States in controversy, concerning what is required for presidential electors to validly cast and transmit their votes. Obviously, there are party leaders and/or officials in each State who are familiar with the relevant details who would deal with the logistics, most of whom have handled such details in past elections. This memo merely supplies a general overview.
It appears that even though none of the Trump-Pence electors are currently certified as having been elected by the voters of their State, most of the electors (with the possible exception of the Nevada electors) will be able to take the essential steps needed to validly cast and transmit their votes, so that the votes might be eligible to be counted if later recognized (by a court, the state legislature, or Congress) as the valid ones that actually count in the presidential election. (On why this could work, see here and here.) And, they can do so without any involvement by the governor or any other state official (except, in some States, where access to the Capitol Building is or might be needed, or where the Governor must approve a substitute elector or, in Nevada, where the Secretary of State is involved).
It is important that the Trump-Pence Campaign focus carefully on these details, as soon as possible, if the aim is to ensure that all 79 electoral votes are properly cast and transmitted – each electoral vote being potentially important if the election ultimately extends to, and perhaps past, January 6 in Congress. The National Archives has a very helpful checklist, here.
I. FEDERAL LAW
The federal-law requirements for the December 14 electors’ meeting are set out in 3 U.S.C. §§ 6-11 (copy here).
! Under federal law, the Trump-Pence electors must all meet, together, on December 14, “at such place in each State as the legislature of such State shall direct.” 3 U.S.C. § 7.
! In most States there is no requirement that they meet in public. It might be preferable for them to meet in private, if possible, to thwart the ability of protesters to disrupt the event. Witness, via this video, what happened when the Trump-Pence electors met in public in Wisconsin in 2016, even though the Trump- Pence victory had not been contested. Even if held in private, perhaps print and even TV journalists would be invited to attend to cover the event.
M E M O R A N D U M
Source: Elections - nytimes.com
