What will happen if Wisconsin can't finish the recount in time?

  • As reported, the Wisconsin Elections Commission has accepted Jill Stein's petition for a recount of this year's presidential election.

    In a NBC article, it states:

    In addition, Wisconsin officials would need to scramble to finish the recount by the federal Dec. 13 deadline.

    The article also quotes Wisconsin Election Commission's Administrator Michael Haas saying:

    "The recount process is very detail-oriented, and this deadline will certainly challenge some counties to finish on time."

    So, what will happen if the recount can't be completed by Dec 13 since the electoral college votes on Dec 19?

    Ultimately, the federal Constitution makes it the job of the State Legislature to appoint electors by December 13th (this year). Presumably, the federal government could take legal action against any state that fails to do so.

    Look for the highly authoritarian GOP that controls the entire state to drag their feet as much as possible on the process, regardless of what they think the outcome will be.

    By itself, the inability of Wisconsin's electors to vote wouldn't change the outcome of the election, since Trump would still have 296 electors. The interesting question is: What happens if *all three* of the contested states (WI, MI, and PA) can't finish the recount in time, since this would bring Trump's total down to 260.

  • Brythan

    Brythan Correct answer

    5 years ago

    As per the Milwaukee Journal Sentinel:

    Perhaps the most important deadline is Dec. 19, when electors around the country must meet to cast their Electoral College votes, said Edward Foley, an expert in election law at Moritz College of Law at Ohio State University.

    "That is a hard deadline and if a state were to miss that deadline, it would be technically in jeopardy of not having its electoral votes counted," he said.

    The deadline for completing a recount is thirty-five days after the election, which is December 13th this year. The electors actually vote six days later, on the 19th. If they don't send the electoral college votes on that day, then Congress isn't required to accept the electoral votes from that state.

    Of course, it is a Republican Congress and Wisconsin went for the Republican candidate, so they might offer more leeway than they would for a candidate from another party.

    If all three recount states fail to send in their electoral college votes by the deadline, it is possible that there won't be enough electoral votes to make a majority. If neither candidate gets 270 votes, the election goes to Congress with the top three vote getters in the electoral college. Absent any faithless electors, that would be Donald Trump and Hillary Clinton.

    With a single faithless elector refusing to vote for Trump, Michigan (16 electoral votes) and Pennsylvania (20) failing to submit electoral votes would leave Trump with 269 electoral college votes. With seven, Wisconsin (10) and Pennsylvania would be sufficient. With eleven, Wisconsin and Michigan. And faithless electors would allow a third candidate to be considered, perhaps someone that could get Republican votes in Congress.

    Recounts taking too long makes the unlikely prospect of faithless electors more feasible. It would currently take 37 to throw the election to Congress. Or if the 232 Clinton electors join with 38 or more Trump electors, they could pick a compromise candidate. However, the only time that that many faithless electors existed, it was because their candidate died. Other than that, the next largest numbers of faithless electors were for the vice-presidential candidates. But if one or more Trump states fails to vote at all, fewer faithless electors are required to throw it to Congress.

    In Congress, if the third option were to be more palatable to select Republicans, they could join with Democrats to choose that person. Of course, Trump would still have the inside path. There are so few states where the Democrats are even close to having enough votes to flip the state. Their large leads in California and New York are wasted in a vote by states.

    Note that this is all really unlikely. The states will almost certainly all finish their recounts on time and only a scattered few electors will be faithless. Even if the vote did go to Congress, the House would almost certainly pick Trump. Particularly with people like DeVos and Priebus part of the administration.

    If a state fails to submit electors then shouldn't it change the number of votes needed to get a majority? E.g., if Pennsylvania (20 votes) does not submit electors, wouldn't the majority be 260 instead of 270?

    @SJuan76 No. It's a majority of the whole number of electors, not a majority of the electors who vote.

    Say hello to President Ryan!

    @SJuan76 is correct: it's a majority of the appointed electors. If the state fails to appoint any electors, then the number of appointed electors will be smaller, as will the number required to constitute a majority.

    @phoog No, that is not correct.

    Well it's the plain meaning of the words in the constitution, which speaks of states "appointing" electors and of the majority of appointed electors. If your going to convince me that I'm wrong you're going to need something more than a bare assertion of that fact.

    @phoog - I suggest asking a new question specifically about whether a state not choosing electors will change the number needed, rather than debate it in comments.

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Content dated before 7/24/2021 11:53 AM