What do you think about this hypothesis that I posted in another thread:
-PJ
Actually, there is one Constitutional avenue to pursue that nobody has discussed yet. It is a longshot because it involved unique interpretations.It's Amendment 20 Section 3:
If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.An argument can be made about the nature of "failed to qualify." What if this failure to qualify isn't discovered until after the President's term begins? Is that President still unqualified via the 20th amendment?
If so, and if both Biden and Harris are found to not have qualified under the 20th amendment, Congress can then "declar[e] who shall then act as President." Furthermore, Congress can determine "the manner in which one who is to act shall be selected," perhaps meaning a special election, a vote in the House (either by delegation or member), or even reinstalling the prior President.
However, this would involve SCOTUS to interpret that "fail to qualify" is permanent, and doesn't expire at the oath of office even though the election was provably stolen by the new President who would otherwise have failed to qualify if the theft had been uncovered sooner.
You might make a better case through the 9th and 10th amendments.I think the difference between 9-10 and 20 is that 9 and 10 are generalized statements of states rights while 20 is a specific procedure.
The question with the 9-10 approach is "then what?" If a state was denied a fair election due to bad-faith actors, then what? If a state can revoke certification, then what?
Part of the answer to "then what?" is the procedure in 20. If it is found that certification was based on falsified ballots, falsified counts of legitimate ballots, counts of illegitimately received ballots, etc., then we enter "failed to qualify" territory.
The question then becomes, must these failures of qualifications be discovered before the safe-harbor date for the Electoral College, be discovered before the Congressional count, or be discovered before the oath of office to be valid for the 20th amendment? If so, it rewards cover-up by any means by the very same bad-faith actors.
If it can be retroactively applied via the 20th amendment, then both Biden and Harris can be removed and Congress can appoint an interim President while a new President is chosen via a means established by Congress.
Unfortunately, Nancy Pelosi will become acting President while Congress dithers over this. On the other hand, Pelosi would have to resign from Congress in order to succeed the Presidency. On the other other hand, Congress could retain Pelosi as Speaker if they act quickly to name a different acting President via the 20th amendment, declaring that the rules of succession don't apply in this case.
Very interesting.
“Failed to qualify” though...
Once the Constitutional requirements are met, I see no basis to claim someone “failed to qualify” for reasons other than Constitutional ones. And Biden meets those.
The popular vote has a role in Presidential elections- the role it is given by the states and Congress.
Interesting view, but we do not elect Presidents by popular vote.