I have done a LOT of research into this recently:
The ONLY mention in U.S. Law is that electoral votes may be objected to when the votes are counted (United States Code, Title 3, Chapter 1, Section 15).
This is provided for in the U.S. Constitution Article I, Section 8, Clause 18:
“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
Every objection MUST be made in writing AND signed by AT LEAST 1 Senator AND 1 Representative.
The House and the Senate then adjourn to make a decision. Ther is NO mention on the rules for how the decision is made - but it is probably a vote.
Then, they come back and continue the electoral vote count.
HOWEVER:
NO WHERE in the U.S. Constitution is this method of procedure mandated. It is a law that Congress enacted.
IF the House and the Senate vote the objection on party lines, despite clear and convincing evidence that a candidate is not qualified, there is NOTHING to prevent them from doing so.
This has NEVER been tested as to constitutionality. SCOTUS MIGHT declare this process unconstitutional under the equal protection provisions of the 14th Amendment.
Therefore, SCOTUS would be the logical body to examine and
verify a candidate’s eligibility.
IMO, here are the most likely scenarios:
1. Pre-Electoral College
2. Post-Electoral College, Pre-Inauguration
3. Post-Inauguration
Per the Constitution, each Elector is technically able to cast a vote for anyone they want.
However, under the current system, 24 states have “faithless elector” laws that punish electors for NOT voting for whom they have pledged and SCOTUS has ruled these laws to be legal ... at least on the first ballot.
IMPORTANT POINT: There are 538 + 538 = 1076 possible electors (counting ONLY DEM and GOP in this exercise - there are actually many more).
Obama currently leads something like 350-188. However, if anyone’s electors are DQ’d, they are replaced with the runner-up’s electors.
1. Presumbaly, if SCOTUS DQ’d Obama prior to the Electoral College, his slate of electors would be DQ’d and replaced with the slate of the runner-up (McCain). McCain would be POTUS. (Constitution - Article II, Section 1, Paragraph 3).
SCOTUS would then have to rule if Biden’s electors (the same ones that were DQ’d for Obama) were qualified. They MIGHT do that. If so, Biden would LIKELY be VP. This MIGHT play out since POTUS and VP are voted separately and Biden is qualified to hold office (Constitution - 12th Amendment).
If not, Biden’s electors would be DQ’d (like Obama’s), his slate of electors would be DQ’d and replaced with the slate of the runner-up (Palin). Palin would be VP.
Or, SCOTUS could order a new election.
2. Presumably, if Obama was DQ’d AFTER the Electoral College, Biden would become POTUS-Elect and remain so until a qualifed POTUS could be chosen. If Jan. 20th came and went. Biden would be POTUS - at least for a while. (Constitution - 20th Amendment).
If SCOTUS ruled that the election was null and void, based upon a perpetration of a fraud, scenario #1 (above) would likely come into play.
Or a new election could be ordered.
3. If Obama was sworn in, and then DQ’d, Biden would become POTUS, at least for a while. He would then install his own VP, with Senate confirmation, of course. (Constitution - 25th Amendment).
However, if SCOTUS ruled the election null and void, scenario #1 COULD come into play again.
Or a new election could be ordered.
AND, lets NOT forget Hillary ... She MIGHT be able to get a new election ordered at any time in this process - claiming that her 14th Amendment rights were violated on the basis of fraud. She WOULD have been the DEM nominee, if not for Obama. However, I don’t think this bucket holds water.
Still, you'd better believe that Dems in the Senate and House would throw themselves into this in a way meant to be a wrench in the gearwork.
I don’t believe your #2 is supported by the language of the Constitution as amended. Specifically, what language supports your assertion?
I don’t believe the Constitution gives any authority for an election to be declared null and void, or a new election to be conducted. Where do you think it does?
But I can see the application of the 25th Amendment that you suggest. I had always assumed the language there (removal from office) referred to impeachment only.