Restoring Trump may start with decertifying one "elected" 2020 U.S. Senator

Dr. Franklin | July 20, 2021 | Dr. Franklin

[Dr. Franklin]

Challenges to the presidential electors for GA, MI, NV, and WI all failed when the House members making the objections failed to gain the support of a single U.S. Senator. Together these states comprised 48 EV, which was more than enough to flip the election result. But what if a duly elected U.S. Senator was unable to participate in that process because a fraudulent pretender was wrongfully certified in his/her place? Would that make the entire Jan. 6-7th certification of Joe and Ho's "victory" null and void in either a quo warranto action, or reopening of that certification by Congress?

[DoodleDawg]

I just gave two logical ways.

You gave us your wish list.

[Political Junkie Too]

As used in the Twentieth amendment "shall have failed to qualify" means not yet elected, e.g., didn't get enough votes in the contingent election in the House.

The 20th amendment was passed in 1933. Prior to 1933, the closest elections were:

• 1916: Wilson received 52.17% of the EV (277/531).
• 1876: Hayes received 50.14% (185/369).
• 1824: Adams received 32.18% (84/261).

Between the passage of the 12th and 20th amendments, the average EV vote percent of the winner was 69.3%. I don't think they were overly concerned about the House election to resolve ties. "Failure to qualify" must have meant something else. Likely, it meant defective Electoral College votes, but it could have meant a deadlocked Congress trying to resolve a tie. It could even mean that the winner lied about his age or duration of residency. If Congress is deadlocked, then how would the rest of the 20th be resolved (naming an acting President) while Congress is still sitting to break the initial tie?

I suspect that SCOTUS would weigh in favor of the Biden regime, if states start decertifying Biden's electors, but don't flip them to Trump due to the fraud. That would require more states to decertify electors to get to the point that it delegitimatizes the current Biden regime. It's the whole issue of requiring a majority of possible EV vs. a majority of EV counted, and I expect Roberts and SCOTUS to go with the latter if it becomes an issue.

The plain text of the 12th amendment says:

The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed;

The word "appoint" is used many times in the Constitution:

• Article I Section 6: No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created...
• Article I Section 8: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers...
• Article II Section 1: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
• Article II Section 2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
• Amendment 17: When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
• Amendment 23: The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

It is clear throughout the Constitution that the use of the word "appoint" and its derivatives mean the filling of a seat with a person, not the creation of the seat. Roberts would have to twist the language to such an extreme to interpret the 12th amendment in way that does NOT mean that the majority of Electors who voted is what determines the President, not the person who gets at least 270 votes.

If a number of states revoke their certifications due to systemic fraud that puts their state's results into doubt, they do not have to name a winning candidate. They just have to claim that a winner is undeterminable and withdraw their Electors entirely. This reduces the majority threshold to those Electors who remain, and the President is the person who received a majority of those votes.

-PJ

[Political Junkie Too]

The only way would be if President Trump were named by Congress in 2022 to be Acting President under the 20th amendment (a very looooong shot, if at all).

Being appointed as Acting President would not be an election, so it wouldn't count towards his allotment of two. It would count as years, though, but would still fall within the allotment of 10.

However, I don't believe (though I've argued for it) that Congress or SCOTUS would accept a retroactive invocation of the 20th amendment, even if it took two years to discover and prove the fraud, meaning in hindsight that the President-Elect had failed to qualify and covered it up.

-PJ

[Dr. Franklin]

The plain text of the 12th amendment says:
The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed;

Again, the lacuna is that the Constitution calls for presidential electors to be appointed by the legislatures, but the legislatures no longer appoint the electors. Thus, we have the whole debate about governor's certifying a particular slate of electors, and the need to decertify them. I believe that all of this points to the need to amend the constitution to fit the modern practice, and improve the result. Hopefully, this all leads to a round of needed reforms.

[DoodleDawg]

The only way would be if President Trump were named by Congress in 2022 to be Acting President under the 20th amendment (a very looooong shot, if at all).

There are "long shots" and there are "ain't never gonna happens". The idea that the Republicans in Congress would appoint Trump Speaker of the House even if they take control in 2023 falls into the latter category.

There are claims of massive fraud on one side and no fraud on the other. What happens next is key. Unless Cyber Ninjas or Lindell take their claims to court then nothing is going to happen, and indeed it's an indication that they don't have a lot of faith in their findings.

[Political Junkie Too]

Again, the lacuna is that the Constitution calls for presidential electors to be appointed by the legislatures, but the legislatures no longer appoint the electors.

That is not true.

The Constitution calls for the legislatures to "...appoint, in such Manner as the Legislature thereof may direct, a Number of Electors..."

The legislatures don't have to appoint directly, but they could if they wanted to.

I think the only modernizations that we need is in voting technology. Let Visa or Mastercard run the elections with credit-card-like voter IDs and point-of-sale-like voting machines.

The financial companies have no trouble validating a credit card purchase within seconds anywhere in the country, so they should have no trouble tabulating votes across the country, either.

Their fraud departments should be able to tell if a voter card was used more than once, or if forged cards were being used.

-PJ

[Political Junkie Too]

I didn't say to appoint President Trump as Speaker, I said to use the power of the 20th amendment to name Trump as Acting President.

But it's true that that is also in the "ain't never gonna happen" department.

-PJ

[Theodore R.]

Remember how gracious he was in the v.p. debate.
He may not have understood the ramifications of what was coming.

[Dr. Franklin]

As soon as you see the words "fraud vitiates everything" in a post on FR, you know you're dealing with someone who would fail out of the first two hours of law school.

I never knew of a law school that gave its students exams on the first day. More likely, students fail final exams, which are frequently the only exams for the semester, because of the lack of experience taking them, knowing how to answer them, and what is expected. What transpires in the classroom is quite different from learning what is needed to write effective answers to "issue spotter" exam questions.

Civil Code jurisdictions try to predict every possible outcome, but frequently fail to anticipate novel fraudulent schemes. It's not surprising that New York and London are the financial capitals of the world. The common law is based upon some common sense. If the facts change, the result changes. No case is any better than its facts. Different judges have different opinions, and handle cases differently. So it's easy to confuse new law students with the Socratic method. AFAIK, the U.S. is the only common law jurisdiction that employs it in its law schools. Even here it is subject to much criticism:
Former Law Prof Says, ‘The Socratic Method Is A Sh**ty Method Of Teaching’

Personally, I think U.S. law schools would be much improved by requiring that its law professors actually have advanced legal degrees that require them to become experts in some area of the law and write and defend dissertations, and not just publish a lot of law review articles, about whatever they feel like writing about.

And with all of that stated, if enough fraud is demonstrated, the election in certain states will likely be decertified, particularly if there is substantial evidence of foreign interference. I expect a lot of media disinformation against Lindell's NSA type witnesses to the election hacking.

[Dr. Franklin]

That is not true. The Constitution calls for the legislatures to "...appoint, in such Manner as the Legislature thereof may direct, a Number of Electors..."

You understood my point.

The legislatures don't have to appoint directly, but they could if they wanted to.

The only way to know for certain that a slate of electors is properly appointed is for the legislatures themselves to appoint them. Otherwise, confusion results.

I think the only modernizations that we need is in voting technology. Let Visa or Mastercard run the elections with credit-card-like voter IDs and point-of-sale-like voting machines.

So we will just replace Dominion with banks to run our elections! What could go wrong with that? We just need more corporate control over our elections? I am of the opinion that we need to return to dumb elections with people counting ballots, and others watching them count them. First announce the total votes cast, then start counting them, and not vice-versa. Machines might be used to check that count for errors in particular batches of ballots, but should not be trusted exclusively, or primarily as at present.

The financial companies have no trouble validating a credit card purchase within seconds anywhere in the country, so they should have no trouble tabulating votes across the country, either.

Right, because they WANT to catch fraud. Those running the elections only want to catch fraud if its for an opposing candidate. Otherwise, they hide fraud for their favored candidate extremely well.

[DoodleDawg]

I didn't say to appoint President Trump as Speaker, I said to use the power of the 20th amendment to name Trump as Acting President.

My error.

The problem is than on January 20th a president was chosen and was sworn in. Even if all the claims of fraud are taken to court and are found to be valid that is not going to trigger the 20th Amendment. Nothing in the Constitution supports a do-over.

[Political Junkie Too]

The difference between Dominion and Visa/Mastercard is several:

1. With Dominion (or any) voting machines, local election officials are still in control of reporting the numbers from those machines.
2. Local election officials are also running ballots multiple times through their counting machines.
3. I'm talking about taking control of tabulating the vote away from partisan local officials and moving them to regulated enterprises that have accounting oversight (e.g., Price Waterhouse Coopers). Most of those process are hands-off.
4. I'm saying that we move the tabulating of the vote to businesses that have proven technologies that can handle national load within minutes of votes being cast.
5. And yes, I'm saying that these regulated companies (like Visa or Mastercard) have brand reputation to protect. They won't be motivated to manipulate the vote at the risk of their products being boycotted.

-PJ

[Political Junkie Too]

The problem is than on January 20th a president was chosen and was sworn in. Even if all the claims of fraud are taken to court and are found to be valid that is not going to trigger the 20th Amendment. Nothing in the Constitution supports a do-over.

It wouldn't be a do-over. It would be declaring the seat vacant due to the President and Vice President Elect having failed to qualify in hindsight due to fraud and coverup.

The Congress would then name an Acting President until a President shall have qualified. That could mean that the Acting President remains in office until the 2024 election, when a President will have qualified.

I was coupling this with the discussion of "fraud vitiates every thing" from the Supreme Court's Throckmorton ruling.

Even though the ruling in Throckmorton was against reopening the decision based on a late discovery of a fraudulent land grant, the opinion first laid out a series of conditions that must exist for a fraud to overturn a prior ruling.

The Court discussed whether the ruling bodies acted in good faith but simply didn't recognize the fraud, or whether agents with proceedings responsibility for one side or the other were active in perpetuating the fraud on the ruling body to get the result they wanted.

In the case of Fulton County, Georgia, from the video it looks like the elections officials were the ones who cleared the counting rooms of observers, then ballot stuffed and then used the authority of their positions to cover up the fraud.

We don't know the extent of the fraud in Arizona yet, or the involvement of election officials, as their report hasn't come out.

In Pennsylvania, election officials are still stalling on exposing what happened there.

Those are the kinds of actions that were alluded to in the Throckmorton discussion, where people in charge of the process were the bad actors in the process.

That begs the question of whether the 20th amendment can be interpreted to allow for after-the-fact discovery of fraud such that we found out later that the President-Elect and Vice President-Elect in reality failed to qualify but we didn't know it at the time.

If so, then let the rest of the 20th amendment allow for Congress to fix the situation until the next election qualifies a President.

-PJ

[Dr. Franklin]

Pence had no authority to do any such thing. As the presiding officer in a joint session of Congress he had no authority to do anything unilaterally except cast a tie-breaking vote in the Senate.

When the petition for a writ of quo warranto makes its way up to SCOTUS, watch Roberts join the liberals and write an opinion that it was Pence's job to send the electoral certifications back to the states if there was any fraud, and now it's too late to change anything.

[Steve Van Doorn]

"You gave us your wish list."
I still believe the system can work. What is the alternative? A completely broken system that can not be repaired?

[Dr. Franklin]

I still believe the system can work. What is the alternative? A completely broken system that can not be repaired?

The unspoken remedy of last resort.

[MayflowerMadam]

“Pence could have listened and sent it back to the state legislature to look into fraud for 10 days.”

That’s all they asked for. When it seemed like that might happen, the FBI put into action their entrapment scheme. Pence caved, and so did some feckless, despicable GOP Senators.

[MayflowerMadam]

“Pence had no authority to do any such thing.”

So YOU say. Actual Constitutional experts say Pence DID have that authority, up until January 20.

[MayflowerMadam]

“I think the main reason something won’t be done is because no matter what proof of fraud comes out the media won’t report it and social media won’t let it be posted.”

And the final fly in the ointment is that the majority of SCOTUS already have shown their true colors (yellow) when it comes to being fair to We The People. We know we’ve lost them, and we’ve simply lost everything.

[MayflowerMadam]

Interesting that you wimp out when it comes to fixing a fraudulent election, and then have the nerve to invoke our brave Founding Fathers in the same paragraph. They would have done something, and not rolled over so Pelosi could scratch their bellies.