Session 2: From Meeting of Electors (Dec 14) to Joint Session of Congress (Jan 6)
Hypothetical Scenario 2.2: Michigan also sends two conflicting sets of electoral votes to Congress, but raising different issues than Scenario 2.1
In the aftermath of Scenario 1.2, Michigan sends Congress two conflicting sets of electoral votes. One purports to derive from the state’s popular vote, including “late-counted” ballots, as certified by the state’s election authorities including the Secretary of State. The set of electoral votes claims “Safe Harbor” status under 3 U.S.C. § 5 as being consistent with state law in existence prior to Election Day and being timely. The second set of electoral votes claims authority from the state legislature’s repudiation of the state’s popular vote as unreliable and purported direct appointment of the state’s electors. Which of the two, if either, should Congress accept pursuant to 3 U.S.C. § 15? Does the answer to this question depend on whether or not the federal judiciary has invalidated the second set of electoral votes on the ground that the state legislature’s attempt to appoint electors directly violates the Due Process Clause of the Fourteenth Amendment?