Posted on 09/08/2020 4:38:27 PM PDT by LS
There has been a lot of discussion, especially here on FR, in disjointed threads on other topics. Would some of you who have commented on this please weigh in here.
This is my understanding of the Constitution and Statutory Law that supports elections. *There is an "Election Day" stipulated in the Constitution. *States are on their own as to HOW they "certify" their electors *There is no Constitutional date given for when the electors must be certified. *In (I think) the 23rd Amendment the date for delivering the elector slates to the Joint Session of Congress to be counted (2 counters from each house) is now Jan. 6. Remember in the 1800s, due to transportation limitations, the date was early March. *Statute law has fixed Dec. 14 (this year) as the date by which the states must "certify" their electors. *The certified elector lists must be delivered to Chuck Grassley, the Pres of the Senate, on December 23.
As best I can tell, there is no penalty for NOT delivering an elector slate. The Founders (and everyone else, apparently) though it ludicrous that any state would voluntarily not take part in an election & deny its citizens the right to vote.
In Bush v. Gore, a 5-4 ruling held that FL could NOT recount statewide ballots because it would have missed the Dec. 12 (as I recall) deadline that year. The USSC ruled that it was a violation of the "one man, one vote" to only partially count and SINCE they couldn't count the whole state, Gore's partial recount was invalid.
The Supreme Court implied that the state can count up to the point of the Dec. 14 (12th in 2000) deadline.
What is NOT clear is, what if a state simply refuses to certify its count/electors and doesn't submit at all?
Some of you have argued that there is a "quorum" and the 270 number would be adjusted downward relative to the number of states that did submit. THIS SEEMS THE MOST LOGICAL CONCLUSION, GIVEN THAT IN THE ELECTION OF 1864 Congress only counted the votes of those states still in the Union; and 17 electoral votes from reconstructed parts of LA and TN voted, submitted electors, but were not allowed to be counted.
This seems to suggest that the "quorum" is not "all available states" but all states that submit electors. And while Congress has the precedent of not accepting some electors, it apparently has never forced a state to vote or submit electors. This it APPEARS that if, say, CA decided to withhold its electors, the quorum would drop by 55 electoral votes, and the number needed to win would drop to 191.
However, another interpretation is that ALL states must have their electors counted. I cannot find this in the Constitution or in Statute law.
Finally, it would seem that there would be a major constitutional issue from the citizens of such a state in that they would be denied their civil rights to vote due to the governor's/state legislature's decision to withhold a final count. Given the wordage of Bush v. Gore, it would seem this would be a big deal and that a state could NOT withhold its electoral count just to "tie up" the election.
As I say, neither the Founders nor almost anyone since ever dreamed of such venality that a state would try to tie up an election out of hatred for a president, but here we are. Comments and analysis welcome.
Feel free to chime in.
I did run some of this by a former U.S. Senator, who said, “McConnell (Yertle) has good lawyers,” and said he’d forward my question to one of them.
Also, my Supreme Court expert, Zen Master, who has yet to miss a single call including the Flynn result so far, said that he thought the USSC would uphold Bush v. Gore. Even if Roberts wanted to screw Trump, courts don’t overturn themselves, and this decision is quite fresh. Also, the “one man, one vote” thing would really run counter to overturning the deadline.
If California withheld it’s elector votes I believe it would go to the Supreme Court to make up some new “Constitutional” law. That would not be good for America with the Supreme’s liberal/RINO majority.
Did court specifically say that they weren’t attaching and precedent to Bush V Gore?’
That is one interpenetration of this sentence:
“Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”
Think back to Al "Feeley" Franken.Lost on election night. Lost the first recount...but "won" the second recount by a few hundred votes.Imagine the same happening in PA,MI,WI...and even FL and NC.
In '16 it can be said that a few thousand votes in two or three states won it for the President. It wouldn't take much fraud to flip it to the Rats.
I'd wager that this will reach SCOTUS. But I wouldn't bet a nickel that they'll rule correctly.
if a State fails to submit its electors on time, they are not counted.
the crisis would occur if a State sends two sets of electors representing two different candidates
The USSC decision in Bush v. Gore was actually a bad ruling. Florida should have been left to their own devices, and if the place was so badly run that they couldn’t certify a slate of electors then their electors shouldn’t have been counted. That scenario has taken place at least a couple of times since the country was founded.
I’m not sure what the Democrats would expect to gain by withholding a certified slate of electors in a state that Biden wins by a wide margin.
I think this is what you're looking for.
The Constitution lays this out in two parts.
Article II Section 1 says "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."
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..."
If a state fails to appoint electors, then the majority of appointed electors goes down. If Pennsylvania (20 EV) fails to appoint its electors, then the number of appointed electors drops to 518, and the majority becomes 260 EV to win.
People are stuck on the number 270, but that assumes a FULL Electoral College. If a state fails to certify, and fails to APPOINT its electors, then they simply don't participate in the Electoral College. In that case, the Electoral College is not bound by a 270 threshold. That threshold is reduced to a majority of the APPOINTED Electors who do participate.
This is where Article II offers the remedy:
If a state thinks it's in risk of defaulting on its Electoral College participation, then the legislature can exercise its plenary power to call a special session and choose to directly appoint their Electors, regardless of how the state's citizens voted.
-PJ
...
I just wanted to throw this in the mix.
I feel that election ballots must be counted within so many hours after the close of the voting polls. If these states take days and weeks to count, I suspect massive fraud as do most of us here. Something needs to be done. States know well in advance when an election is and they should be held accountable by getting the job done.
This is my rant for the day but I believe we must have some rules in place as well.
In the Senate, only one-third of the seats are up for election. If those same states can't certify a Senator (apparently for the same reason they couldn't appoint Electors), the governor MUST appoint a replacement to fill the vacancy because Article V says "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." The Governor can choose to not appoint a Senator, leaving the state with reduced Senate representation.
And, since the entire House is up for reelection, there will be no House on January 3 to select a Speaker. More likely, the Republican states that do not use mail-in ballots will have ordinary elections and send their Representative to the House; they will not be affected by counting delays. It will be the Democrat states that can't count and certify their elections that will leave vacancies in the House. The Republican majority of those present will choose their Speaker.
-PJ
This is an easy one. There is NO Constitutional right for the populace to choose the electors. That's a matter for the states. The California legislature, for example, could decide to allow the Governor to appoint the electors, or for the state senate to vote on who the electors from that state will be. So there's no US Constitutional enfranchisement to begin with, and thus no disenfranchisment.
"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors"
I was here and I disagree as it was the Florida Supreme Court (FSC), 7 Democrat Appointees, that was delaying a certification already signed by the FL Secretary of State and validated by the Florida House. The FSC kept extending the scope and since Gore was having no luck in his selected 'D' counties, they were discussing a hand recount of all Florida Counties.
The USSC waited until the final day allowed by the US Constitution for the state's Electors to meet, vote and transmit to DC. This is first Monday after the second Wednesday of December and in 2000, that was 18 December and that was when the USSC ruled 7-2 that the FSC was DONE!
So the USSC ruling was to stop an inferior court from delaying a certification of Electors, a normal action within the overall US Judicial System. This year of 2020, the Elector Voting day is 14 December and I just hope it is clean and concise!
Here’s where there could be real trouble. Suppose a state narrowly goes for Trump. But that state has a Democrat Secretary of State. That person might refuse to certify his state’s results.
I never would have dreamed of such a possibility before this year. But many Democrats don’t just dislike Trump. Thanks to the media, they have an irrational, white-hot hatred of him. Anything is possible now.
My fear is that since a Georgia judge ruled that so-called mail-in ballots can have Election Day postmarks to be counted, that manufactured ballots for east coast swing states (e.g., Georgia, Florida, Pennsylvania) will be mailed from California after the polls close on the east but before post offices close on the west.
I don't recall hearing that the ballots must be postmarked in the state where the ballots are being cast. Once the MSM starts reporting on east coast election returns, Democrats can manufacture the needed votes in the west (maybe even Hawaii), and get them postmarked in time to mail to the east coast states.
According to the website 270toWin, here are the 2020 poll closing times for certain states:
This leaves plenty of time for ballots to be postmarked in California after poll returns begin to be reported in the east.
They don't even have to wait for all the polls to close. If they fear a Trump wave is coming, they can start postmarking ballots for central time zone states, too.
-PJ
You read my mind as I was thinking the same thing!!!
Nov. 14 - Electors cast their votes
Jan. 6 - Congress counts the Electoral votes
Per Federal Law - the new Congress assembles
Per federal Law - the popular vote is to be cast by the Tuesday after the first Monday of Nov. (in practice, mailed ballots must be postmarked by this day but may be received sometimes later; for overseas military, the received by date is set by Congress) Mail-in states are a head ache to count.
The Constitution says that, to be elected President, a candidate must receive a majority of all electors appointed. So, if Gore could have delayed the appointment of electors from Florida, he would have won. The 2000 Florida recount was about NOT APPOINTING electors by Dec. 14th. The Supreme Court thwarted the effort.
This year, Republican-controlled states will be quick to count, as will Democrat-controlled states that Biden wins. BUT ... Democrat-controlled states that Trump wins, if Trump is re-elected, will have delayed counts so as to prevent the Electors from being appointed. This is the plan. This is this year’s Democrat plan to steal the election.
However, if we win the House and keep the Senate, we can steal the election back in January.
And, the Supreme Court will be sympathetic to any plea to require the appointment of electors once the attempt to delay appointment becomes obvious.
Per Federal Law - The new Congress assembles Jan. 3
Thanks for the ping and your information.
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