Skip to comments.The State Legislatures Can Still Rescue the Presidential Election (Or Not)
Posted on 12/20/2020 8:11:43 AM PST by Kaslin
Anyone who thinks he knows how things will develop when the Electoral College votes are counted on January 6 is probably smoking something. In theory, since all the electors have been “certified,” there’s nothing the legislatures can do now. To quote Porgy and Bess, “It ain’t necessarily so.”
Article II, Section 1 of the Constitution says, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…” The date is set by Congress in 3 USC 7. 3 USC 15 sets the January 6 date for counting the electoral votes. Neither date is in the Constitution. The only date in the Constitution is noon on January 20, which is when the term of the president ends.
The Supreme Court plainly stated in Bush v. Gore that the power of the legislatures is presidential elections is “plenary.” That means that the legislatures can do pretty much anything they want. The Florida legislature can, after the fact, declare that Florida’s EC votes for Donald Trump will be thrown out and votes will be cast for Joe Biden. Or vice versa in Georgia and so on. And they can do it at any time before the actual count in DC. That’s a pretty radical thought, but fully supported by the case law cited in Texas v. Pennsylvania. The state legislature is the final authority. If the voters in the state get mad, there’s another election coming for them to settle that score.
If the Georgia Legislature wants to change the certification of electors and their vote, they have to get together to vote before Congress meets on January 6. In Georgia, the governor ordinarily has to call them into a special session, and Governor Kemp has shown no inclination to do so. But the US Constitution, under which the state constitution operates, says otherwise.
“Wait!” you say. The US Constitution doesn’t have any language about how legislatures are called into session. That’s true, but completely irrelevant. Under Bush v. Gore, that “plenary” power of the legislature over electors means that they can call themselves into session, sua sponte. They don’t need the governor to do anything.
Put bluntly, every state legislature can do this. It doesn’t have to be just the contested six or seven. But those are the ones with a motivation to act. In Pennsylvania and Georgia, they may have a particularly strong incentive, since the governors and secretaries of state in both states were frankly hostile. In Georgia, it was an illegal consent decree that gutted safeguards for absentee voting. In Pennsylvania, it was a lawless suit that led to complete disregard for all standards established for the election.
But why would they bother? The electoral vote in each state has been certified. This brings us back to the 12th Amendment. “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.” This sounds pretty simple. Open all the envelopes of electoral votes and count. But there’s a hitch here. In seven states (GA, AZ, WI, PA, MI, NV, NM) two slates of electors have sent certificates of their votes. Only one slate was certified by the Governor, but there will still be two envelopes. If both envelopes are opened and counted, 270 votes won’t be a majority. Joe Biden would have 306, and Donald Trump would have 316. That’s an impossible result, and there are confusing procedures on how to handle it, with the governor’s certification as the tie-breaker.
What if VP Pence decides to open only the Trump votes, declaring that the Biden votes were contrary to the will of the legislature? Again, the uproar would reverberate around the world. The VP has the authority, but martial law might be the short-term outcome.
What would happen if the legislatures met and voted? There are three major possibilities. First, they may choose to ratify the certified vote so that Biden wins. They could choose to certify the Trump electors so that Trump wins. The protests would again be impressive. Or they could choose a third route, simply voting to declare the election “in dispute.”
Declaring the election “in dispute” would countermand the certification of the Democrat slate made by the governor. Again, complaints would be deafening, but the legislature would be acting according to the facts in play. Several have held hearings where testimony of material malfeasance has been presented. So a contested election would be both the legal and factual truth. And the legislature would be saying that the state would present zero electoral votes to be counted because it’s not possible to determine which slate is correct.
The drama that follows on January 6 could follow several paths, almost all of them doomed to loud complaints. The simplest is count the “certified” votes and elect Joe Biden. But if some of the legislatures declare an election dispute, things get interesting.
If AZ, GA, MI, NV, PA, and WI all declare a dispute, the remaining vote is 232 to 222 in favor of Donald Trump. The president of the Senate, VP Pence, could then declare that Trump has won, since he has a majority of the actual votes. If he chooses to be less political, he could choose to say there is no winner, since no one has 270 votes. This would send the election to the House as a contingent election, where presumably the 27-23 Republican lead in states will re-elect Trump.
The cleanest answer comes from state legislatures acting to declare disputes. This would mean that VP Pence would not be an interested party making decisions that benefit himself like Thomas Jefferson did in 1800. But will the six state legislatures all vote? Not likely. This brings a different possibility into view.
I simply do not see VP Pence opening both sets of votes from contested states. That would lead to the House and the Senate separately voting on which set of electors to accept. While Republicans hold the majority in both houses, guaranteeing a Trump decision in each case is foolhardy. It’s possible, but very uncertain. But Pence has a different path available as president of the Senate, the ultimate authority in this situation.
Suppose that VP Pence chooses to declare the dispute on his own. He would be justified in doing so, since there is testimony to major malfeasance in all six states. He can declare that since election officials failed to follow state law, they did not conduct an election. If there is no election, then there are no electors. If Pennsylvania has dueling slates of electors, “certification” does not matter. Neither slate is legitimate. If a state has not submitted a valid slate of electors, then it has no votes to submit. VP Pence can then throw the certificates in the trash, leaving zero votes for Trump and zero for Biden from that state.
The potential scenarios would be enough for Alice to cry “Curiouser and curiouser!”
If it happens it has to have a big buildup. this is water torture.
Too many chickens roosting in the state legislatures.
Praying that the cowardly Republicans can come through for us
I firmly believe that every judge,every elected official and every civil service employee in the country has those riots in the *front* of their minds...not the back. That would mean that everybody was called upon to address the Rat Party fraud would say to him/herself "if I do the right thing here there will be thugs following my family and thugs throwing firebombs at my house".
Other than the President himself I don't think there's a single person in this country who's prepared to pay that price to do what's right.
I Agree, and have said since the beginning of this nightmare that the individual Legislatures can DECLARE the Certified Electors VOID and send New ones or tell Congress the State is in a deadlocked dispute and NO Electors will be Appointed.
They don't want Trump back. They are happier than anyone at the outcome of the election.
And they CERTAINLY won't be doing anything along the lines suggested in this piece.
Most of the state legislators are as afraid to defend their Republic as many former American “men” remain frightened senseless of the “scary virus”.
That includes conservatives, politicians or not.
“ While Republicans hold the majority in both houses, guaranteeing a Trump decision in each case is foolhardy. ”
Article was good until that point.
State legislatures will do NOTHING - they have no guts and/or are compromised. Next question: does Mike Pence have the guts to toss the votes of those 6 states, or just count the Trump slates; I think not.
This must be understood. With strong Republican support, Trump would never have found himself in this position. If he is not the man sworn in on January 20th, the Republican Party is to blame.
Pence will follow the Constitution. The slate of electors by the GOP-led majority will be the only ones counted. The House will vote and Trump is your next president.
It isn’t that hard. Riots? We already have them. Then the Insurrection Act comes into play and the grass gets mowed.
“Other than the President himself I don’t think there’s a single person in this country who’s prepared to pay that price to do what’s right.”
Very true! BUT, he has the power to do something about it (send in the troops).
Too many problems contained within the article.
First, the Constitution is clear that Congress alone has the authority to set the date the Electors meet and vote. That date has passed. 2nd issue is that the author gives Pence, as president of the Senate, far more powers in this matter then he actually has and the fact that only the votes from the electors certified by the states will be opened and counted. Each state has laws in place that spell ut how, where and when their Electors meet on the day appointed by Congress. No votes from slates of “electors” that fail to met state law will be counted. Furthermore, it is the House and Senate, not VP Pence, that settles all disputes.
It is rather disconcerting that people here who are supposedly in favor of limited government would like to invent in a state legislature the power to override a concuded vote.
If he is not the man sworn in on January 20th, the Republican Party is to blame.
The gutless Repukes aren’t going to lift a finger to save the Republic... they want it destroyed just the same as the Demonic Party; sadly they’re too stupid to see that once they go along with the Demonic scum, they’re next.
It read like horrible fan fiction, the type of gushing fantasy crap that liberals used to write about RBG.
The Supreme Court has denied it took place and we still don't have a name of the anonymous staffer who claims to have heard it. Lin Wood, naturally, claims to possess physical evidence of this conversation but again, unsurprisingly, is not releasing it.
Yes, that’s probably true.
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