Nothing Will Impede Wisconsin Electors From Voting For Joe Biden Says Legal Expert

Nov 18, 2020

Election Day was more than two weeks ago, the vote tally took longer than a normal year because a record number of people voted by mail. Yet once the votes were in, former Vice President Joe Biden was projected the winner, but President Donald Trump has not conceded.

The election results will be made official after two final steps in the election process. Each state needs to certify their results and the popular vote gets turned into the electoral vote. Once that’s complete, Wisconsin’s ten electoral votes can be cast.

President-elect Biden is ahead of President Trump by 20,608 votes in Wisconsin. And, the Trump campaign has requested a recount in democratic strongholds Dane and Milwaukee counties.

Adav Noti is senior director and chief of staff at Campaign Legal Center. He explains that according to federal law, states have until Dec. 8 to complete all recounts and settle all disputes to the election. Election officials don’t anticipate a recount taking that long

“As long as they do that by a certain date, which this year is December 8, and as long as they do it pursuant to whatever the laws and procedures were, that were in place on Election Day, that state's determination of who won its presidential election is conclusive. Its final, it can't be second guessed later at the federal level or anywhere else,” Noti explains.

That date is called the “Safe Harbor” date and, he says, even Florida in the 2000 election did not miss that date. Noti does not expect any state this year to go over the deadline.

The only way a vote certification can be stopped is through a court order, which is why Noti says the Trump campaign has continued to file lawsuits in courts across the country. But he says none have come anywhere close to slowing the vote certification. Even if the campaign could delay any state, Biden is expected to get 306 electoral votes, which means the delays would have to total enough of his votes to bring him under 270 to have any impact. That is something, Noti says, is basically impossible.

After certification, each state’s electors will meet within their state to cast their votes on Dec. 14. Those votes will be sent to a joint session of the U.S. Senate and House of Representatives to be officially counted on Jan. 6, 2021. Wisconsin gets 10 electors, based on population. This is the same number of U.S. senators and representatives in the state. Before the election, Democrats appointed 10 Democratic electors and Republicans did the same.

One scenario that had been floated around was that Republican-controlled legislatures, such as Wisconsin's, could decide on its own to bring the panel of 10 Republican electors forward, despite the popular vote.

However, Noti says federal law prohibits that. "So although state legislators get to decide on the front end how a state is going to allocate its electoral votes, and currently, all 50 states do that by popular vote. The winner of the popular vote wins the state's electoral votes, state legislators get to decide how the electors are chosen. But under the Constitution, Congress decides when the electors are chosen," he explains.

Congress has said for a very long time by choosing an Election Day, which this year was Nov. 3, that all states have to make a decision about how they choose their electors and who those electors are going to be.

"After that day has passed, the legislature has no more power to change how the state allocates its electoral votes. They could change it for a future election, a state could decide for 2024, the state legislature could decide, well, we're not going to hold a popular vote and more we're gonna appoint our members of the electoral college by some other method, but they can't retroactively change it for 2020."

If on Jan. 6 when Congress takes up the electoral vote there are disputes, such as if for some highly improbable reason there are two slates of electors, both Democratic and Republican, at the joint session of Congress, they leave the joint session and meet separately and vote on which set of electoral votes from that state are valid.

If the House and Senate agree, that's the slate that gets counted. If they disagree, there are tiebreaking rules. 

"If a state has complied with the Safe Harbor rule, meaning a state has certified its the results of its presidential election by Dec. 8 and done it pursuant to the laws as they stood on Election Day, then that slate gets counted and and another one that doesn't comply with those rules does not," Noti explains. "And then the backup provision is that if there's still a dispute about which set of electors from the state is valid, then the results that are certified by the governor of the state get the essentially the tiebreaker."

Even in this extremely unlikely scenario, in Wisconsin as in several other key states like Michigan and Pennsylvania, the governors are Democratic and will nominate Biden's slate.

“There’s really no doubt or uncertainty left about the results of the presidential election,” Noti says.