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.
Will fail bigly.
Let me explain it this way.
When you work out your biceps in a gym, there are “positive” reps and “negative” reps. But the funny thing is, YOU WORK YOUR MUSCLE EITHER WAY.
This is the same way with presidential/legislative/court power.
To truly have NOT been a precedent, the Court would have refused the case; but since they took the case, they exercised power and . . . SET. A. Precedent.
It doesn’t matter what they said, by their actions they created a precedent that any subsequent court will have trouble ignoring. And how many times do you see language like “well, we don’t mean this to be used THIS way” being completely ignored?
No, the court will pretty much be forced to act in accordance with precedent here, or make many or their current members look foolish. And no court does that.
Democrats know they have the fortitude to tough it out longer than Republicans. For them, the strategy often devolves into mucking up the Trump/Republican agenda for as long as possible. If Democrats can't win, then make sure the Republicans get as awful a win as possible.
If Democrats do win, it's because they kept the game going until the other side commits a grievous error that costs them the game. Conceding early takes away this opportunity for Republicans to cave.
-PJ
Yertle has not played this way at all.
Time to reassess and stop feeling defensive.
oh no, The Compromise of 2021
This is interesting.
Traitorous swine (if true, which isn’t hard to believe but OTOH woodward can’t be trusted)
Agree on all.
You need to read 106 as well.
Seeing more of the pattern.
WHAT?!
How does this, from reply 9, happen?
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.
Maybe you should read reply 106 as well.
My reply 106 says what happens when 270 isn't reached!
We have debated this at length. My congressional sources think that the number is 270, period. Not a majority of those submitted.
The enabling legislation for the Constitution does not allow for the non-submission of an electoral slate. We have never had this happen. In 1860, the South submitted its electors, then seceded when the wrong guy won, but the electors were in.
In 1876, the electors were sent in, but contested.
Apparently the 1887 legislation said that when there was a conflict between two sets of electors, the governor chose. I seem to recall more recent legislation, however, that put it back in the hands of the state legislature. I could be wrong.
At any rate, I don’t think you can just have a state “not submit.” If not in on Dec. 14 to the Senate, the US Senate can demand the slate; the US Archivist will demand the slate; and a state court can demand the slate. The law is mum on what happens if these demands are not met. There is a PENALTY ($1,000.00) for the PERSON (i.e., I guess the Sec State) who doesn’t deliver the slate to the Senate, but I cannot find any penalty for any state that doesn’t submit. Therefore, I see no enabling legislation that says that you can have a majority less than 270.
There's been some serious foolishness with this "it goes to 260" nonsense.
I will engage you in this debate, but not if you continue to use language like "you are so wrong it is ALARMING!" and "Are you actually this stupid, or are you just extremely ignorant?"
Why do I need to read 106? It assumes full participation; the Constitution did not.
Since you pinged my post you know that I cited the parts of the Constitution that shows the Electoral College requires a majority of appointed Electors, not a majority of *maximum possible* Electors. States that fail to certify their elections in time for the Electoral College do not participate because they failed to appoint Electors.
Do you disagree with that? If so, why?
-PJ
I agree. I understand.
Just telling you what I’ve seen in the statute law supporting the Constitution. Nowhere, no how do you see any punishment for a state refusing to hand over an elector slate. It’s unclear what would happen,except that while the Senate and Archivist can demand the slate, they can’t do anything. But a state court can and can order the arrest of people who do not submit on the grounds of contempt.
Violations of civil rights, sedition, insurrection, etc., do not need specific laws to prosecute. Failing to meet the requirements of federal elections can be prosecuted.
And you have to show, and prove in court that there were such specific violations.
Our Constitution doesn’t allow for the “it just feels wrong” approach.
That would be December 14, not November 14.
I think a State not submitting their votes is proof enough. No “feel” to that.
Noticed you quoted this morning on another site:
https://meaninginhistory.blogspot.com/
UPDATED: Trump Clearing The Deck?
Larry Schweikart is onto this, too:
Not gonna speculate, just observe.
Pres. Trump has just cleaned out the top ranks of the Pentagon.
Barrstool had a visit with Yertle, who suddenly looked like Conan the Barbarian.
Halspel also met with Yertle.
— Larry Schweikart (@LarrySchweikart) November 10, 2020
Also—Kash Patel is COS for the acting guy (?) at the Pentagon. Patel was Devin Nunes’ top Russia Hoax investigator and most recently was a top guy for John Ratcliffe at ODNI. This stuff can’t be coincidence. Some recent comments I’ve made:
Great comment Charles. Just before I got to enable your comment, I wrote this on another thread: Also, check out how Trump-supportive Lindsey Graham has been. Judiciary is oversight on FBI criminal stuff. And firing Esper and replacing with acting—the new acting chief of staff is Kash Patel, Nunes’ top investigator, but moving over now from similar position for Ratcliffe. Smacks of taking control of the military. With Barr talking to McConnell yesterday and turning USAs loose, Lindsey talking up the PA fraud today (and I don’t believe Mitch would let Lindsey go out on a limb like that), and Haspel called in to Mitch today ... something big has to be up.
Please explain how you force a state to submit electors.
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