`We find four arguments particularly persuasive:
•Textual Analysis and the Framers' Intent - The Constitutional Convention considered and rejected (on September 5, 1787) language that would have allowed a simple majority of those voting to elect the President. The Convention then chose to amend the language of Article II to use the words "a Majority of the whole Number of Electors appointed" to emphasize that an absolute majority of possible electors was necessary. In the same section of the Constitution, the appointment of electors by each state was made mandatory, whether or not the electors actually voted.
Joseph Story's Commentaries on the Constitution of the United States (1833), which remains one of the foremost authorities on the Constitution, supports this conclusion: "The number of electors is equal to the number of senators and representatives of each state . . . . The person, having a majority of the whole number of votes, is to be president."
•Federal Statute Law - The provision of the United States Code (3 U.S.C. § 3) governing presidential selection makes the point clear, providing that "the number of electors shall be equal to the number of Senators and Representatives to which the several States are by law entitled."
•Historical Practice - No president, even during the Civil War, has ever been elected by the Electoral College with less than an absolute majority of the whole number of possible electors.
•Common Sense - Mainstream popular and academic opinion outside of the Washington beltway, based on longstanding tradition and widespread acceptance, regards the correct number to be a majority of all the states' votes.
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This is old, but I find this relevant to our current situation.
It appears to me that ONE of the efforts in this recount is to deny a sufficient number of Electors for a Trump outright win and throw it to Congress. I don't believe this will work as I believe both Houses and Governorships of the states now targeted, are in the hands of Republicans. If the recounts go past December 13th, the Legislators and or Governors can elect/certify the Electors of their choosing. One would hope they would follow the will of the voters.
The only OTHER way is to manufacture/flip enough actual votes to reverse the already certified results. That's a lot of votes, and it would have to happen in all three states. I don't think that is going to happen, but that said, who knows?
I always knew the reversal of our march to socialism was going to be tough, lets just hope and Pray we can do this peacefully.
Is there a ‘times up/ you lose’ provision in these state recounts? They have been certified already, for instance, in Michigan.
Hand counting millions of votes? Seems a backdoor way to deny the voters of that state the opportunity to vote.
Isn’t some showing of fraud necessary to even challenge the results?
Quite ironic Hillary and her MSM shills were lambasting Trump as a threat to the Republic when he wouldn’t admit he’d agree to the results. They didn’t bother to ask Hillary the same question.
It looks like WI, where Trump now leads by 27,000 votes, will be the first to finish the process. In addition to the governor and legislature being Republican, the state supreme court is also majority Republican, meaning there’s a strong chance WI will get its electoral votes in on time and for Trump. If so, he’ll have the 270 EVs he needs and win.
If no one candidate receives an absolute majority of the electoral votes because a state's electors were prevented from casting their votes (or for some other reason) then, under the process of contingent election set forth in the Constitution, the President would be elected by the House of Representatives and the Vice President would be elected by the Senate. Both chambers are ruled by the Republicans.
Either way, Trump wins. The ONLY way it won't happen is if a recount produces a truly massive number of new votes for Clinton or illegal(mistakes) votes for Trump. Although anything is possible I believe it is a bridge too far.
If a state fails to satisfy its own laws for appointing electors, then it fails to appoint any electors. And the Constitution only requires a majority of votes by appointed Electors, not a majority of votes from all Electors who could have been appointed, but weren't because one or more states failed to do so.
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.
The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. 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 shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing 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. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President "
So is the ne electoral college majority 270 for a dem and 300+? for everybody else?
Thank you for posting this. While “old”, the document’s well-considered conclusions are still valid IMHO since the Constitution has not changed in the last 16 years-—despite the apparent wishes & misconceptions of some FR posters.
Pennsylvania is the firewall here. Stein has to show proof in court that fraud or miscounting occurred, and she has already admitted she has none, as has the Hillary campaign. Game over.
Almost correct. Pennsylvania has a Democratic Governor. But the Constitution is clear that the legislature determines the rules for selecting electors.
The Convention then chose to amend the language of Article II to use the words "a Majority of the whole Number of Electors appointed" to emphasize that an absolute majority of possible electors was necessary.
The whole sentence from Article II reads: "The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President." (Emphasis added.)
I haven't done the math to see how there could "be more than one who have such Majority, and have an equal Number of Votes", but it doesn't seem to me that they were trying to "emphasize...an absolute majority of possible electors..." if they conceived of more than one with a majority.
And they didn't write "possible electors", they wrote "appointed electors".
In the same section of the Constitution, the appointment of electors by each state was made mandatory, whether or not the electors actually voted.
It says "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors....". If the Legislature's direction is not adequate for an unforeseen circumstance , a State may not be able to follow it to appoint Electors, so we fall back to "a Majority of the whole Number of Electors appointed" not "an absolute majority of possible electors".
Regarding Federal Statute Law:
Last I heard, Federal Statue Law is void if it doesn't agree with the Constitution. Admittedly, many of us might disagree with the courts who decide a particular law is in agreement with the Constitution.
Regarding Historical Practice:
No president, even during the Civil War, has ever been elected by the Electoral College with less than an absolute majority of the whole number of possible electors.
So what? No president has been convicted after impeachment either. That doesn't mean it couldn't happen. Things change.
Regarding Common Sense:
Who gets to decide what's Common Sense?
PLURALITY
“Majority of the Whole number”
o is NOT an over half majority, NOT Absolute majority
o IS a plurality
Plurality is written in the Constitution. Constitutional Lawyers who wrote election law were EXTREMELY IGNORANT.
Two attempts and still a mess.
lol. Great opportunity to write a clear book on the matter, but my plate is too full. LMAO :-p
In 2000 Gore had to flip just 2 electors.
How did he do?
Cankles needs 37.
Meese, et al, were making a meretricious argument, which they knew full well all along. Of their four "particularly persuasive" arguments, the last three do not even support their contention; they are neutral, and the first actually destroys their claim, since it makes clear by requiring "mandatory appointment" the Framers intended the Constitution to mean exactly what it means: a majority of the electors appointed by the states and NOT a majority of the electors eligible.
Meese, et al made this argument because if Florida failed to appoint its electors, Bush would lose. Florida was not one of three states that would give Bush a majority of appointed electors. It was the only path to a Bush victory at all. Thus it was imperative to the Bush team that Florida's EV's must be counted. They needed the safe haven provision to force Florida to appoint electors by the legislature, or to guarantee all votes were counted and certified by the safe haven day.
Like many lawyerly arguments -- especially in Constitutional cases -- it sounds superficially convincing, but it is not what the law actually says.
This recount is being requested by someone who won less than 1% of the vote, who’said name wasn’t even on all the states ballots. These states have the potential of missing the electoral college thus disenfranchizing millions of voters.
These votes need to be certified. If Jill Stein wants to satisfy her curiosity she can pay for it after certification.
