Old law could leave 2020 presidential race in stalemate (electoral college, competing electors)

roll call ^ | June 1, 2020 | Ruger

[doug from upland]

The problems start if a state submits two different election results and the House and Senate clash on which results should be tallied. More later on all the dominoes that would have to fall for that to happen in 2020.

But if that does happen, there are conflicting interpretations of what the law requires Congress to do, Foley said. It’s an ambiguity that he calls the Achilles’ heel of the Electoral College system and Congress’ role in counting votes.

[doug from upland]

There is some unknown territory here. If a key state such as Michigan would be the deciding factor, what if two sets of electors are sent to DC because the GOP-controlled state legislature had the guts override the massive fraud. From what I have read, each House must agree on which set is accepted. If we hold the Senate, Trump gets the electors. The House would obviously vote for Biden electors. If they can't agree, I believe the Governor's slate prevails or the state simply does not get to count its electors. This may be critical for the Supreme Court to finally clarify. Each state has laws to determine its legislative power to declare electors. Would the Court interpret the state law in play to determine that the ultimate power rests with the legislature? It is not clear.

[wiseprince]

State legislature sends the electors

[doug from upland]

In our history, there have been competing electors sent. Read the article.

[x]

From what I have read, each House must agree on which set is accepted. If we hold the Senate, Trump gets the electors. The House would obviously vote for Biden electors.

I'm not sure, but the House may decide which presidential electors are legitimate and the Senate which electoral votes to count for vice president, so Biden and Pence might be chosen. Also, there may be defections in one house or the other.

Again, I'm not sure about the details, but I think the Founders would have avoided requiring both Houses to agree on which electoral votes to count, something that would only add to the mess of a disputed election.

[AndyJackson]

I am fine with no majority for either candidate. Then it goes to the house where they vote by state. Trump wins.

[SmokingJoe]

We control the state legislatures in WI MI AZ and PA.
We need to act like it.
If the Dem SOS in these states are stealing the elections for Biden, the GOP state legislatures HAVE to send in their own delegates. Period.

[Meatspace]

Move to suspend the States that have been called for Biden from the Union. Suspend them from the Union from now until the Electoral College meets in December.

[libertylover]

The way I read Article II of the Constitution, the State Legislatures send the electors. Not the Governor. Period. For a long time the State Legislatures have sent electors that are determined by the presidential vote in their respective states. However, there is NO Constitutional Right to directly vote for the President.

Article II states, in part, "Each State shall appoint, in such manner 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; ..."

[x]

Or maybe you’re right. A joint session of Congress is supposed to certify the results. I’m too out of it to sort out how it’s supposed to work, but somebody else will.

[Pete from Shawnee Mission]

In the unlikely event we end up with Biden-Pence that would be a victory since “The Big Guy” would probably not get through 4 years and we would get a President Biden.

(We are not to this point yet.)

[100%FEDUP]

There is no conflict! A vote will be held of the state delegations to elect the POTUS. 1 vote for each state, the vote is decided by a majority of members of congress from each state. The Senate votes to decide who will be Vice President! Once again NO CONFLICT!

[Redmen4ever]

The state legislature should declare that the election was not conducted in according with law.

The Constitution doesn’t say the state legislature appoints the Electors. It says the legislature determines the process by which the electors are appointed. Governors, being the executive officers of their states, then administer that process. But, what if the Governor change the process (as they did)?

Here’s what is supposed to happen: the courts resolve the conflict. For example, disallow counting votes that arrived after election day (if the law says they’re supposed to arrive by that day). For example, order votes to be recounted in the presence of inspectors. For example, void the election.

There actually is plenty of time. Pennsylvania and any other state whose election cannot be resolved retrospectively can have a do-over. Or, just go with the vote total on election day that had Trump well out in front. Those votes we know arrived by election day.

Same thing with all the down ticket offices not able to be resolved retrospectively.

[doug from upland]

Yes, the legislature sends the electors. The governor presents to them the certified results from the Sec of State. That is when the legislature may take action to declare their own slate of competing electors. I don’t know if it will get that far. There will be an audit and hand count to determine legal votes in possibly several states. SCOTUS may well decide that any vote received after 8pm election night is not a legal vote.

[Froggie]

If the house and senate get involved, there are no electors chosen. The house with one vote per state chooses the President and the Senate picks the VP with each Senator getting one vote. So, assuming no defection in the ranks, the R’s control 26 states and the D’s control 24, so Trump would win. As long as the R’s keep 51 Senators Pence would be chosen.

I think the Supremes should order a recount and throw out any contested ballots not verified to be legitimate and timely or order another revote in contested states, or just disqualify electors from that state if the state can not or won’t comply. Then neither side has 270 and the decision goes to Congress. To let a highly contested, likely fraudulent election to stand if there is sufficient of vote tampering and fraud would further widen the divide and destroy the UNITED States.

[doug from upland]

https://www.lawfareblog.com/how-resolve-contested-election-part-2-how-congress-counts-electoral-votes

The below does not look good if GOP legislature sends it’s own competing electors. Both Houses have to agree on which slate to accept. It is by each full body, not each state getting one vote to determine which slate to accept. They do not hold a joint session to choose which slate to accept. If we hold the Senate and they hold the House, there will be no agreement. Unfortunately, it looks like it goes to the Governor’s slate.

So it seems that the state legislature is not going to have the power to stop the steal. It looks like the only thing that can stop the steal is an audited hand count that eliminates the illegal ballots.
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While clumsy, this formula does present some obstacles for those who may wish to manipulate states’ electoral votes. Consider a hypothetical case in which a state legislature tries to appoint a state’s electors instead of assigning them on the basis of election results—a scenario discussed at length in the last post in this series that some fear could arise in 2020. If the state’s governor were opposed to the legislature’s actions or believed them to be unlawful, he or she might well proceed with appointing a separate set of electors based on the election results. If doing so qualified for the safe harbor at 3 U.S.C. § 5, then the governor’s slate of electors would be the one whose votes would be given priority under the Electoral Count Act—not the one appointed by the state legislature. This is because the state legislature’s actions cannot qualify for the safe harbor as they all take place post-election. And even if this governor-backed alternate slate of electors failed to qualify for the safe harbor, in a situation where the two chambers of Congress cannot agree on a way forward, the governor-backed electors’ votes would still be favored by virtue of having the governor’s certification.

[doug from upland]

A joint session meets and it is one vote per state IF NEITHER HAS 270 CERTIFIED ELECTORS. If there are competing electors, each body votes by majority (not each state getting one vote). If we hold the Senate, there will be no agreement with the House and the slate sent by the Governor will prevail.

[doug from upland]

As I have subsequently stated, competing electors from the legislature is not going to work. Trump’s only path to victory is audits and hand counting to remove illegal votes. SCOTUS is going to have to rule that any ballots received after election day, no matter when postmarked, cannot be counted.

[freespirit2012]

Controlling the process, is the same thing as controlling who the electors are in this case. A simple vote by the legislatures to declare the process to be that:

In cases where the legislature has lost faith in the voting process, the legislature itself shall vote for and be sole determiner of the electors.

[Froggie]

Yes, I see that ... good point

[Froggie]

Yes, I see that ... good point