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3 USC § 5 – Determination of controversy as to appointment of electors

imageIt’s somewhat murky what the birthers expect, should they actually win any of their court cases against the Electoral College. Two losing elector candidates in Minnesota are suing the Secretary of State of California in Grinols v. Electoral College. If Grinols has any standing at all, it must be his injury at not being in the Electoral College because, as he alleges, the winning party’s candidate was ineligible. How the California Secretary of State does anything for a Minnesota elector is unknown.

It’s too late anyway. There is a law, 3 USC § 5, that says any controversy over the electors must be resolved 6 days before the date the Electoral College votes on December 17. The Grinols suit was filed 5 days before.

If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.

The National Archives explains it this way:

States must make final decisions in any controversies over the appointment of their electors at least six days before the meeting of the Electors on December 17, 2012. This is so their electoral votes will be presumed valid when presented to Congress. The deadline for resolving any controversies is December 11, 2012.

Here is how attorneys for President Obama applied this statute in Florida in the Voeltz case, and the Plaintiff’s response.

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22 Responses to 3 USC § 5 – Determination of controversy as to appointment of electors

  1. avatar
    John Reilly December 13, 2012 at 9:35 am #

    So I suppose we will soon see Dr. Taitz claiming that some unnamed paralegal working part-time for her called some unnamed clerk and was told that filing on December 12 would be timely.

  2. avatar
    MN-Skeptic December 13, 2012 at 10:18 am #

    It’s not obvious from Orly’s lawsuit – of course – but Grinols is a pediatrician from Minnesota. He would have been an elector for Minnesota if Romney would have won Minnesota (fat chance of that happening!).

  3. avatar
    PaulG December 13, 2012 at 10:37 am #

    MN-Skeptic:
    He would have been an elector for Minnesota if Romney would have won Minnesota (fat chance of that happening!).

    This is true of the other elector as well, as far as I can see. Why Minnesota?

  4. avatar
    MN-Skeptic December 13, 2012 at 10:48 am #

    PaulG: This is true of the other elector as well, as far as I can see. Why Minnesota?

    Corsi had an article in WND in September quoting Grinols in wanting to see Romney’s birth certificate, so Grinols has been an outspoken idiot of this foolishness. (http://www.wnd.com/2012/09/eligibility-challenge-arises-in-electoral-college/)

  5. avatar
    Scientist December 13, 2012 at 10:54 am #

    PaulG: Why Minnesota?

    Just for fun, pretend that Orly were to win and the court were to order the Secretary of State of California to put different electors in place in Minnesota. How exactly would that work?

  6. avatar
    The Magic M December 13, 2012 at 11:41 am #

    MN-Skeptic: quoting Grinols in wanting to see Romney’s birth certificate, so Grinols has been an outspoken idiot of this foolishness

    Well, you gotta give him credit for at least pretending it’s not all about the scary black dude. After all, most birthers have no problem claiming “I don’t need to see anybody else’s BC because nobody doubts where other people were born” – with a straight face, I assume.

  7. avatar
    The Magic M December 13, 2012 at 11:46 am #

    Scientist: How exactly would that work?

    In Orlylaw, such an order would then be enforced by some magical “superpoena dulcis vademecum” which would force the Minnesota SOS to obey the order of the California SOS. Also, It-would-blow-this-whole-thing-wide-open[tm].

  8. avatar
    Bob December 13, 2012 at 12:08 pm #

    “It’s somewhat murky what the birthers expect . . .”

    I think they’re hoping for a nomination for Grand Imperial Wizard.

  9. avatar
    Rickey December 13, 2012 at 1:53 pm #

    John Reilly:
    So I suppose we will soon see Dr. Taitz claiming that some unnamed paralegal working part-time for her called some unnamed clerk and was told that filing on December 12 would be timely.

    Probably, but I don’t believe that the filing date makes any difference. The statute says that any controversies have to be resolved at least six days prior to the date that the Electoral College casts its votes.

  10. avatar
    nbc December 13, 2012 at 2:42 pm #

    Scientist: Just for fun, pretend that Orly were to win and the court were to order the Secretary of State of California to put different electors in place in Minnesota. How exactly would that work?

    Invasion… Pure and simple!!!

  11. avatar
    Scientist December 13, 2012 at 2:58 pm #

    nbc: Invasion… Pure and simple!!!

    Californians invading Minnesota in the winter? Wandering around in snowdrifts in shorts and flip-flops? No way!

  12. avatar
    misha marinsky December 13, 2012 at 3:31 pm #

    Scientist: Californians invading Minnesota in the winter?Wandering around in snowdrifts in shorts and flip-flops?No way!

    They’ll wear parkas for the occasion.

  13. avatar
    JPotter December 13, 2012 at 4:40 pm #

    misha marinsky: They’ll wear parkas for the occasion.

    Parkas, shorts, and flip-flops. In snow drifts. Nothing can go wrong.

  14. avatar
    JJolly December 13, 2012 at 5:31 pm #

    I’m from California. We’ll wait for the snow to melt. Nothing to be in such a hurry to do. We are a bit laid back on the left coast.

  15. avatar
    Patrick McKinnion December 13, 2012 at 6:38 pm #

    PaulG: This is true of the other elector as well, as far as I can see. Why Minnesota?

    Well, the other elector was not only an elector for Gary Johnson, but is the chairperson for the Minnesota Libertarian Party

  16. avatar
    BrianH December 13, 2012 at 10:02 pm #

    I don’t think the 6-day provision in 3 U.S.C. 5 operates as a filing deadline; rather the statute creates a “safe harbor” under which a state can make resolution of any controversy binding on the Electoral College (and thus avoid federal interference with its state determination). The statute reads conditionally: “if” final resolution is made prior to the 6-day period, “[then] such determination . . . shall govern in the counting of the electoral votes . . . so far as the ascertainment of the electors appointed by such State is concerned.”

    If the state resolution occurs within the 6-day period, presumably the E.C. could take that into account, but would not be obligated to do so.

    This observation may shift Orly’s odds from about 0.00000001 chance of success to something more like 0.0000001. At best, there will be an application for emergency hearing or a type of injunctive relief, which will get shot down on the “likelihood of success on the merits” test or any of a host of other objections.

  17. avatar
    gorefan December 13, 2012 at 10:21 pm #

    BrianH: If the state resolution occurs within the 6-day period, presumably the E.C. could take that into account, but would not be obligated to do so.

    What if it would be impossible or unlikely that the final determination could be reached before the EC votes? In Voeltz v. Obama, the defendant has filed a notice of the “APPLICABILITY OF TITLE 3 U.S.C. 5″.

  18. avatar
    BrianH December 13, 2012 at 10:44 pm #

    What if it would be impossible or unlikely that the final determination could be reached before the EC votes? In Voeltz v. Obama, the defendant has filed a notice of the “APPLICABILITY OF TITLE 3 U.S.C. 5″.

    Courts employ expressions like “the inability to fashion effective relief” as justification for not hearing a matter (usually that language is found in the appeals context, though I think the basic concept has broader application). The general category is one of “mootness.”

    I can easily see a court looking at 3 U.S.C. 5 and concluding that the matter is effectively moot as resolution past the 6-day window means the legal (binding) significance of the ruling is lost. I don’t think that’s technically a correct reading of the statute, but it’s often an effective strategy to provide a judge who is otherwise inclined to dismiss a matter a facially-credible argument to hang his decision on.

  19. avatar
    gorefan December 15, 2012 at 2:05 pm #

    BrianH: I can easily see a court looking at 3 U.S.C. 5 and concluding that the matter is effectively moot as resolution past the 6-day window means the legal (binding) significance of the ruling is lost.

    Here is the defense’s notice:

    http://www.scribd.com/doc/116904912?secret_password=smdkidriajxw8vuqevc

    And the plaintiff’s response:

    http://www.scribd.com/doc/116905230?secret_password=dswt1gd3mhue49pab8z

    They were originally posted at the ObamaBalletChallenge website by George Miller

  20. avatar
    BrianH December 15, 2012 at 2:46 pm #

    gorefan: Here is the defense’s notice:

    The defendant’s reading of the statute tracks mine very closely. Pulling in the Florida case with its “Courts are not to render mere advisory opinions” language was a nice touch. I wouldn’t be surprised if the Judge’s opinion (what I might dub in advance the “Why We’re Not Going to Have a Hearing on Sunday Afternoon” opinion) adds to that idea the observation that while the statute allows the E.C. to still consider the Florida determination, giving Florida’s vote count to Romney wouldn’t change the outcome; so it’s moot on multiple levels. (Klayman is wrong in suggesting the decision would still be conclusive even if rendered within the 6-day period; and he puts that manifest error in bold.)

    Given Florida’s history in the 2000 election, there’s simply NO WAY anyone in Florida is going to put that state into the position of again being the kink in the process. In 2000 the need for a judicial decision resolving the Florida vote was compelling. This time, not at all.

  21. avatar
    Dr. Conspiracy December 18, 2012 at 12:41 pm #

    I do. The way I read it, any determination, whether judicial, or by law or by some rule, that is made by 6 days before the Electoral College vote “shall govern in the counting of the electoral votes.”

    Behind the scenes every state has legislation and processes in place that govern the manner in which the electoral votes are cast, by whom and on what date. Those determinations were made and as of 6 days before the Count, they were, as it were, “set in stone.”

    If whatever happens 6 days before governs, then nothing later than 6 days could alter, change, effect, or stay the counting of the votes.

    BrianH: I don’t think the 6-day provision in 3 U.S.C. 5 operates as a filing deadline;

  22. avatar
    Northland10 December 18, 2012 at 9:00 pm #

    PaulG: This is true of the other elector as well, as far as I can see. Why Minnesota?

    Because “all the women are strong, all the men are good looking, and all the children are above average.”