Unfortunately the votes for President and VP are separate, under the 12th amendment. So you'd have to legally "take out" Biden separately. Meanwhile he would be *acting* President. See amendment XX.
Since the Kenyan got the most electoral votes (and not Biden), I should think that those votes would be thrown out and McCain/Biden would step in. I can’t see succession withint a fraudulent ticket.
Unfortunately the votes for President and VP are separate, under the 12th amendment. So you’d have to legally “take out” Biden separately. Meanwhile he would be *acting* President. See amendment XX.
***
This is why the whole thing is screwy ...
Obama/Biden had 538 individual elector candidates that were pledged to them as a ticket ...
McCain/Palin had THEIR OWN 538 individual elector candidates that were pledged to them as a ticket.
That was a total of 1076 POTENTIAL electors vying for 538 slots in the Electoral College.
As it turns out, 365 Obama electors were selected and 173 McCain electors were selected.
The final tally was 365-173 for Obama.
Those SAME electors voted 365-173 for Biden.
Now, let us assume that Obama is found to be ineligible, for the sake of argument.
If you throw out Obama’s electoral votes due to ineligibility, do you keep Biden’s votes ???
Maybe, maybe not ...
Since the voters in each state voted a ticket, who is to say if a voter would have picked someone else running at the top of the ticket with Biden say Hillary/Biden) or if the voter would have picked Biden running at the top of the ticket with someone else as the VEEP ???
No one can be sure - therefore the Obama/Biden ticket is tainted for BOTH slots. Obama by ineligibility and Biden as a casualty of the “Fruit of the Poisonous Tree” doctrine.
You also cannot allow someone to assume the office of POTUS under the 25th Amendment by way of fraud ...
So, what do you do ??? There are 3 ways to resolve this issue.
1. You can replace the DQ’d Obama electors with the McCain electors who weren’t picked - it would assure 538-0 McCain as POTUS. This is not in the Constitution.
OR:
You could throw out the Obama elector’s votes (365) and have the election decided by the remaining votes for POTUS, but this would assure 173-0 for McCain. This is also not in the Constitution.
Now, since those DQ’d Obama electors were ALSO Biden electors, do you allow them to vote for VEEP? You cannot be sure since his election at the state level is tainted.
If those DQ’d electors were allowed to vote for VEEP, Biden would win 365-173.
But, what about Palin ???
It could be claimed that since Biden’s electors were tainted, their votes should also not count for VEEP. In this case, it would either be 538-0 or 173-0 for Palin as described for McCain, above. This is also not in the Constitution.
OR:
2. You can have a do-over election, but this is also not in the Constitution.
OR:
3. You can invoke the 12th Amendment and declare that the Electoral College DID NOT choose POTUS or the VEEP.
The selection for POTUS would devolve to the House. They would be limited to a choice of up to 3 from the list voted for by the Electoral College. But there were only 2 voted for and, since Obama was DQ’d, they would have a choice of 1 (McCain). The House votes as States, so McCain would need 26 votes to be elected (which he would probably get).
The selection for VEEP would devolve to the Senate. They would be limited to a choice of up to 2 from the list voted for by the Electoral College. This would be Biden and Palin. The Senate votes individually, so 51 votes would be needed for election.
Given the current make-up of the Senate, Biden would in all probability win.
So, there you have it ... McCain/Biden ...
FYI:
If the voters in each State voted separately for POTUS and VEEP, NONE of these 3 remedies would be even remotely applicable, since Biden would assume the Presidency under the 25th Amendment *
* This is assuming that McCain did not challenge in the Supreme Court. If he did, remedy #3 would likely apply.
But I can dream, can’t I?
Not that I’d want McLame in there . . .