It depends not only on how they rule, but when.
If the final ruling comes before the Electoral College votes, there are several possibilities. IMO, the most likely outcome of that would be President-elect Biden, though McCain is a possibility.
If they rule after the EC votes, but before 1/20/09, then we would have Acting President Biden on Jan 20. There doesn’t appear to be any enabling legislation giving authority to qualify a President if that were to happen, so we’d probably have Acting President Biden for four years. There also doesn’t appear to be any way for an Acting President to choose a VP.
But, and this is a huge but, if the USSC rules AFTER 1/10/09 that Obama is not qualified, then I have no idea what happens. THAT would be a true Constitutional crisis.
Most of this comes from Amendment XX, BTW.
It is only a constitutional crisis if the Constitution is not followed.
If the right falls to the House and they fail to choose a President, Biden would become President (full, not acting) on March 4th. 12th Amendment.
Of course, the same could be done with votes for Hillary ....
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.