Clinton Lawyer Marc Elias

An hour before the deadline for doing so expired last Friday in Wisconsin, Hillary Clinton's campaign general counsel, Marc Elias, joined a recount filed by Green Party presidential candidate Jill Stein. The Clinton campaign's top lawyer, hinting that the filing ultimately would prove futile, nevertheless wanted supporters to know they were leaving no stone un-turned.

With deadlines approaching this week, Mr. Elias indicated the Clinton campaign also would file challenges in Michigan and Pennsylvania. The central focus of the Clinton campaign was to use the opportunity to scan for any improprieties in the vote-count that could point to vote tampering by Russian hackers; a news story during the campaign that would not die.

Vote Recounts, Challenges and Audits

With Clinton winning the popular vote by more than 2 million votes and counting, the narrow margins in all three so-called swing-states [just over 100,000 votes] are ripe for thorough review due to their crucial impact on the electoral college.

Even Clinton's own campaign, however, admits that no evidence of hacking or other impropriety has been demonstrated. President Obama indicated the 2016 election was free of any outside interference. President-Elect Trump characterized the re-count effort in a Twitter rant as "ridiculous" and a "scam", claiming Clinton only won the popular vote because so many people voted illegally.

Elias used the occasion to post an essay to the website Medium, touching on themes of foreign interference, "fake news" and the Russians. Also, Elias explains that as general counsel, he is merely performing due diligence as it pertains to the laws of vote recounts, challenges and audits.

The Electoral College

Five times in our history, the electoral college has selected a president that did not win the popular vote: two of those times occurred this Century, the most recent was this past month. The other time was in 2000; that election was resolved via the SCOTUS decision in Bush v Gore.

All of this has us over here at the Law Blogger re-examining the indirect method by which we select our president through the electoral college.

The electoral college is rooted in Article II of the United States Constitution, as fine-tuned by the Twelfth Amendment. Each state determines how their electors are appointed; each state has a number of electors equal to the number of senators and representatives they send to Washington, D.C. Presently, there are 538 electors.

The modern practice is for each state to elect their respective electors. Each elector gets two votes: one for president, the other for vice president. Each states' slate of electors have their votes pledged to a particular candidate based on the popular vote. A candidate must receive an absolute majority of the electoral votes cast in order to be duly elected president.

All but two states -Maine and Nebraska- utilize a winner-takes-all method of pledging their respective electors' votes: the candidate that wins the popular vote in that state gets all of the electoral votes available in the state. [Instead of the statewide system, Maine and Nebraska use the "congressional district" unit of measurement for determining popular vote elector pledges.]

These challenges will be the proverbial flash-in-the-pan and will, of course, go nowhere. Looming in the fast-approaching distance will be the next constitutional challenge for the POTUS: President-Elect Trump's web of international business interests and their conflicts with the interests of the United States of America.

Post Script 

12/16/2016 - The Russian hacking story is getting legs along with the prevalence of so-called "fake news".

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