Ran across an interesting wrinkle today... which is worth addressing. This post will present the argument... I’ll address it in the next. From comments at:
Sydney Powell isn’t blowing smoke up our aces:
1. “Who won” goes to the Supreme Court.
2. The Supreme Court dumps the problem on the House of Representatives.
3. One state, one vote for President; Trump won 30 States, Biden won 20.
4. Trump wins!....not so fast.
5. If those 20 states refuse to vote, then we still don’t have a winner [see 12th Amendment below].
6. It goes to the Senate where one of the VP candidates is elected President until the House votes.
7. President Kamala or President Mike?
The Democrats could deny Trump the win for 2 years and try to take the Senate in 2022...we could have 2 years of Kamala or Pence.
[The 12th Amendment]
But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.
(A quorum is the minimum number of members of a deliberative assembly necessary to conduct the business of that group)
(Minimum of 33 states must vote and 26 votes for 1 candidate decides the winner.)
https://constitution.congress.gov/constitution/amendment-12/
The poster is correct... that a quorum for the Congress to decide who the President is... requires “a member from two thirds of the states”. Except, the operative word there is “a”... as in a single member from a state being required to be present.
Here, as always, one guy reading some of the document and taking one part of a rule and reading it wrongly and out of context causes great error.
Let’s start with context in the awareness, perhaps important later, that the clause in question is in the 12th Amendment... and that what the 12th Amendment modifies is Article II, Section 1, and NOT Article I ? The definition of how Presidents are selected is not a Constitutionally defined roll (Article I, Section 7 Legislative Process)or a specified (Article I, Section 8 Powers of Congress) power of Congress... it is instead a Constitutionally defined DUTY for Congress... which is conducted under the management of the President of the Senate... with others present... but subject to his administration of the proceedings.
The rest of the 12th Amendment also conditions the context... and in that instance the operative word is “immediately”...
“The Electors shall meet in their respective states and vote... and transmit sealed to the seat of the government of the United States, directed to the President of the Senate...”
“; — now my favorite new use of keyboard characters
“; — The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; — 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; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose IMMEDIATELY, by ballot, the President.”
“But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.”
Let’s start with the realization that this is Article 2 we’re talking about... so a quorum to conduct the SPECIFIC business at hand isn’t properly defined anywhere else... and since it IS defined here... uniquely ? Then, that is the rule... one person from a state... fully represents that state well enough.
To make it clear, the poster is right that the Constitution requires in a quorum that 33 states be represented... but it also requires that it is the President of the Senate who holds the gavel and runs the show, the Speaker of the House won’t hold the gavel and can’t control the proceeding, while the Constitution requires only A MEMBER from each state be present... to meet the requirements of a quorum.
If Democrats refuse to show up... ?
First, then, even California will vote for Trump... because Nancy telling Democrats to stay home... won’t stop Devin Nunes from showing up to represent California ? For that plan to succeed... every state with a mixed delegation would need to have every Republican refuse to attend the counting of the votes... to prevent the required quorum.
Note that as... political parties don’t actually have a Constitutional role... but Representatives of States do.
Second, if somehow other efforts “succeeded” in trying to prevent that quorum ?
Article I, Section 5: Powers and Duties of Congress contributes a few other important elements, considered in reverse order:
“Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.”
The Senate actually controls the ability of the House to abscond... some interesting US history there, too... as its not like some of this hasn’t happened before ? But note carefully... “nor to any other Place than that in which the two Houses shall be sitting”... since that’s the context the Constitution defines as the requirement for its conduct of the Article II duties.
Otherwise, yes...
“Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members,and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.”
Pelosi might try to not seat Republicans on January 2nd... in order to prevent Devin Nunes showing up to Represent California ? But, that would have to happen BEFORE this event the Constitution defines to select the President ? Pretty hard to pull that off... on January 2nd... when the vote in question was held well prior to that...
Just not very realistic... and it may become much less so as we see election fraud investigations put even more Democrats at risk of losing seats.
Defined by law, Dec 14th is the day electors vote. Certificates recording the electoral vote results in each state must be received by the President of the Senate (and the archivist) no later than Dec. 23. The new Congress are then seated on January 2nd, before the official results of the electoral votes are sent to the newly elected Congress, which meets in a joint session on Jan. 6, 2021, where they will count the electoral college votes and announce the result.
But, stopping that process to obstruct a quorum by not seating the members of the new Congress... to prevent the count occurring... obviously won’t work in states with majority Republican representation. But, that’s not all...
The Senate’s rules apply, with the Presdient of the Senate holding the gavel, so the Senate can COMPEL the presence of those whose participation is required... as the 12th says is required...
So they can’t stop a quorum happening anyway...
And, then... as it is the SENATE and not the House whose rules will be applied in managing the event... Pelosi doesn’t have a gavel to swing to disrupt it...
But, a last wrinkle... if there is no quorum at the event because Democrats in Congress somehow engineered that, and enough Republicans went along with it ?
In the meeting of the Senate and the House... with the compelled presence of a few members as required... Republicans who are present could simply hold a vote and with a simple majority toss the old Speaker of the House out on her ass... and proceed to do whatever else it is they want to do... with all but a few Democrats having decided to stay home and let them do it...
I judge the odds of that are slim... but, in case it does happen... Republicans should have a legislative agenda ready to go...