The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Election 2020

Who Will Do the Right Thing on Wednesday?

The electoral votes will soon be counted. Not everyone will do their duty.

|The Volokh Conspiracy |

The final step of the process of electing the president is the formal counting of the votes of the presidential electors. Usually a rather dull ceremony, this year there are expected to be some fireworks. In the weeks since President Trump lost his bid for reelection, his supporters have offered increasingly unhinged legal theories and baseless claims of fraud deny the reality that Joe Biden will be inaugurated as the next president. I would like to think that the current attempt to derail the counting of the votes and the affirmation of Biden's victory will be a last ditch effort to continue Trump in office, but the last few weeks suggest that there will be more last ditch efforts after this one.

Some Republican members of Congress will forsake their constitutional duty in order to curry favor with a fickle president and his deluded fans. Others will do the honorable thing despite the political risks. The fact that we must have this conversation says nothing good about the state of the American constitutional democracy.

I have a piece out in Lawfare today that takes an extended look at the counting of the electoral votes and the likely objections to doing so. From the conclusion:

It has now been revealed that the president attempted to bully the governor of Georgia into changing the presidential vote count for no other reason than that the president wanted it. It is hard to imagine a more flagrantly corrupt action on the part of a losing president short of simply attempting to bribe presidential electors or forcibly seizing ballots. If Republican legislators object to the counting of electoral votes for Biden, it is this brazen effort to steal an election that they will be assisting. Their attempted assistance might be as practically futile as the president's phone call itself was. They might not actually succeed in stealing the election. But their objections to the counting of properly certified ballots can hardly be interpreted as anything other than a desire to do so.

You can read the whole thing here.