Thread by @lessig

Thanks for the careful reply.

https://twitter.com/questauthority/status/1339228101948153860

I am sorry if my essay created fear. But against the background of endless articles describing what they are not actually trying, it seems fair and right to describe what they are actually trying — §2.

IF (all caps intended) they can get legislatures to act (which having alternative slates vote buys them time to try), their whole fight will be §2 vs §15.

In that fight, they'll argue §2 is clearly constitutional (since implementing Congress' power to set the "time" when electors are appointed.

And they will argue §15 is not constitutional — ala scholarship.law.unc.edu/nclr/vol80/iss…

And yes, under the (constitutional) §15, conflicting slates go with the governor. Only GA has a GOP governor, even if a perhaps less committed GA governor, given the abuse from Trump.

But in the conflict between §2 and §15, is it implausible the VP would say, "the chair does not view §15 as constitutional, but does view §2 constitutional, so the chair will ..."

I don't think the VP has that power. Others have worried he does. digitalcommons.law.yale.edu/fss_papers/120/ But listen to the episode about the VP's power with one of the authors of that essay, in which he suggests history favors Congress, not the VP: equalcitizens.us/another-way-to…

(BTW: That's episode 9; there are 10 episodes about all of this, including an episode about §2).

(& BTW: The point of Ned's article was not to point to the particular conflict he enumerated, but rather that gaps in the law about the VP's power.)

SO: Having plausible arguments on the table (about the constitutionality of §15) plus the alleged ambiguity of the role of the VP is the recipe for danger with §2.

Again, while I believe that the correct view of the law says the safe harbor slates get counted, and Biden gets elected, the whole premise of the other side is not "find the correct view" but "find a possible view" of the law.

That's what others have called "constitutional hardball" — a game McConnell has been playing for some time. en.wikipedia.org/wiki/Constitut…

That's the game the other side will play.

But given that my concern is and has always been about how the politics plays out, the most important reason not to worry is what McConnell said yesterday after I wrote my essay. If he is trying to shut this game down, the game is shut down.

And re political questions: yes, §2 is a statute, and if someone had standing to force an interpretation of it, it wouldn't be a PQ. But the count of the EC vote is committed by the Constitution to Congress. No Court is going to enjoin Congress to vote differently.