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I have just read the Atlantic article which describes a possible constitutional crisis in the USA in aftermath of the current presidential election.

Prevention of the election result certification in the appropriate battleground states is mentioned as a possible strategy to ensure Donald Trump re-election. My question below is most relevant for Michigan, Pennsylvania and Wisconsin, all having D-Governor and R-Legislature.

Does the certification of the election results before December 8th 2020 really prevent the legislature of these states from appointing an alternative slate of electors?

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    I think having these 2 questions together is too broad. Better to ask the second one in a separate question
    – divibisan
    Nov 12, 2020 at 17:14
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    In lieu of voting to close, I've removed the second question and upvoted, since otherwise it's too broad. Feel free to ask that one again, though I think that might be too broad, even on its own
    – divibisan
    Nov 12, 2020 at 17:23

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The December 8th date is known as the "Safe Harbor" deadline. It was created after the disputed election of 1876 to prevent a situation where states submit multiple competing slates of electors. If a state certifies their results before that date, then that slate is final and there's no possibility of competing slates of electors:

Federal law (3 U.S. Code § 5) frees a state from further challenge if it settles legal disputes and certifies its results at least six days before the Electoral College meeting, which occurs this year on Dec. 14.

“Whatever final decision that state reached by (Dec. 8) — that’s conclusive and final and binding and nobody has any right to second guess it,” explained Adav Noti of Campaign Legal Center, a nonpartisan, nonprofit organization that focuses on voting rights, campaign finance, anti-gerrymandering work and government ethics.

If the deadline comes and goes and state officials submit conflicting electoral votes, Congress must agree on which to accept, according to the Congressional Research Service. If the U.S. Senate and House don’t agree, the votes certified by the state’s governor win.

Safe harbor deadline: Here’s why Dec. 8 matters in the 2020 election

If a state does not certify before then, there is the possibility of the legislature and the Governor submitting different slates of electors, requiring Congress to decide which one to accept. If the results are certified before then, however, there is no issue and the results will be final.

The Atlantic article poses a scenario where Congress would deadlock on which slate to accept. The wikipedia article on the Electoral Count Act goes into a bit more detail on this issue. The issue is whether the governor's tiebreaker applies just to a scenario where there are no electors appointed by the safe-harbor deadline, or also to a scenario where there are multiple slates appointed before the deadline.

So if there is only one certified slate of electors, or if no slate of electors is certified by 12/8, then the slate of electors certified by the Governor will win. The deadlock occurs if 2 slates are "certified" before the safe harbor deadline. In that case, there are multiple possible interpretations on whether the Governor's slate should be accepted, or whether neither should be.

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  • "If the U.S. Senate and House don’t agree, the votes certified by the state’s governor win." Are you sure about this? The article in the Atlantic insists that this rule is arguable and alternatively both slates can be discarded. In this case the President will be elected by the contingent election in the Hause of Rep., where the Republicans hold the majority.
    – user
    Nov 12, 2020 at 17:50
  • @user The wikipedia article on the Electoral Count Act goes into a bit more detail on this issue. The issue is whether the governor's tiebreaker applies just to a scenario where there are no electors appointed by the safe-harbor deadline, or also to a scenario where there are multiple slates appointed before the deadline. So if there is one certified slate or no slate by 12/8, then the governor's slate wins. The deadlock occurs if 2 slates are "certified" before the safe harbor deadline
    – divibisan
    Nov 12, 2020 at 18:05
  • Thank you for the clarification. However I do not quite understand how the legislature can "certify" their slate. And what happens if such appointment or "certification" is sued. But probably this should be clarified in my follow-up question.
    – user
    Nov 12, 2020 at 18:29
  • @user That's beyond my knowledge, and possibly is an issue that would have to be resolved in court. I would assume that the legislature would "certify" their slate by passing a bill doing so, though I'm not sure how they'd get around a veto (assuming they don't have a supermajority), and a lawsuit might count as a "contests or controversies", which would prevent the safe-harbor certification, but I'm really not sure. Probably good fodder for another question
    – divibisan
    Nov 12, 2020 at 19:56

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