Mark Medish, president at TMG, co-authored a new article for Just Security: “Navigating a Contested Election, the Electoral Count Act and 12th Amendment: How to Ensure a Fully Counted Outcome.”
With co-author Charles Curtis, Medish argues that governors and the Speaker of the House could take unconventional yet entirely lawful actions to help preserve constitutional order — and that it is entirely right to do so in the face of unconventional threats to our current election.
The 12th Amendment to the Constitution, adopted in 1804, states the relevant law for the Electoral College – the process for selecting our President. Unfortunately, the wording of that amendment is confusing and, as a consequence, presents difficulties. Congress attempted to cure those difficulties in the Electoral Count Act of 1887. This one-hundred-and-thirty-three-year-old act has been roundly scorned by scholars as almost unintelligible. But that act is what will govern our process for determining who becomes President, if the result is contested in particular ways.
Let’s play out some scenarios, focusing on four swing states: Pennsylvania, North Carolina, Wisconsin, and Michigan.
Read the whole thing at Just Security now.