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!”
Every once in a blue moon a positive reply is posted. I thank you as I need the boast of confidence that PDJT will indeed be sworn in January 20,2021.
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
Have several of the state’s already done that ? At least 4 states are sending 2 sets of electors. That could swing it Trumps way I assume.
Republicans may be gutless, but it would be the end of their party if Biden is certified. Biden would stack SCOTUS and the Repubs would never again have any power. So the likely, scenario is that the Repub legislatures would remain gutless and shift the ultimate vote to Pence to be the fall guy. In either case there would be uncivil war.
Given the current situation, yours is a very doable, sensible scenario. Assuming Pence is not Brutus. (Et tu, Brute?)
> The Republicans are not cowardly. They don’t want Trump back. <
There is much truth in what you say there. Look at all the GOPe types who are falling over each other trying to be the first to tell Trump to give up. McConnell, Christie, Kasich, etc. The list goes on and on.
The Republican Party couldn't be happier with the way the 2020 elections turned out.
They picked up gains in the House and in statehouses. They're going to benefit from redistricting in 2021, and look likely to take the House back altogether in the 2022 midterms. Barring a catastrophe in Georgia, they'll likely keep the Senate.
And they got rid of Trump! Make no mistake, you'll have to look far and wide to find any elected Republican who is truly sorry at how this turned out.
Now they can sit around and do nothing except block Biden while drafting legislation they know he'll veto. It's a win/win the the GOP!
If you think they are going to rescue him now you need to put down the bath salts.
“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. “
It’s quite likely you are correct. It appears few to none thus far want to “pay that price”, which is not only to stand up for what is just, but to stand up to Antifa/BLM’s potential to burn and assassinate.
Here’s a different look at this. The same politicians, on the federal level, that are too gutless to stand up for what is right because they fear the MSM, BLM/Antifa or their own shadows will not hesitate to send US troops into a foreign land to get killed so these same jackasses can get rich off of their endless industrial/military complex wars.
I’d love to see a bunch of war vets band together, find these useless scum politicians, put them on a rail, tar & feather them, and run them out of DC.
That would be quite a precedent. Let us steal the election else we will riot. They'll riot, then threaten riot every time.
In a sane time and country, we would not allow that.
The state legislators don't want Trump? Nah.
They are low level politicians. Their constituents want Trump.
The problem will be that they are cowards.
“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.”
Volumes have been written about what will happen on January 6th and you have succeeded in spell it all out in two sentences. Your analysis is sound and of all possibilities, you have predicted what is by far the most likely outcome.
January 6th will be a great day and go down in the history books alongside July 4th.
“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.”
My recollection of China Mitch’s begging Senators to not debate the issue is the consequences of the RINO’s being labeled as RINO’s as well as the R party being doomed (or something to that effect)
The problem is they are doomed politically unless they do actually support Trump and toss those votes. In particular some of the red states will likely primary their RINO’s, or simply not vote at all and let their rat opponent win. Additionally, Pence’s career is shot, it’s over.
These politicians know America will be watching and at the end of the day will know exactly who’s naughty and who’s nice.
The threat of massive violence has certainly crossed the politicians minds, and know there will be violence regardless of how this mess turns out. They should be smart enough to know with a Biden presidency there will be guaranteed violence. The same goes with a Trump win. The difference is the Insurrection Act and that EO. They know Trump will use it and clean up this mess. They know Biden will let it fester into CWII.
If he is not the man sworn in on January 20th, the Republican Party is, to paraphrase John Cleese, an ex parrot gone to meet the choir invisible
Well 7 states have sent an alternative slate of electors so we shall see what transpires.
In most of these cases the fraud is due to black dominated urban centers. They been allowed to do these corrupt electoral practices for decades. If you object you’re a racist and politicians particularly Republican politicians go a cower in the corner when they hear those words. Most of these GOP state legislators have been in office a long time so they’re well practiced at cowering in the corner. Somehow they think that in continuing to do that they will retain office. Over time they will be squeezed out by Rats. Blind & stupid as much as cowards.
ff
I agree with your second two sentences but not the first. The Republicans are cowardly. It is just in this case, their cowardliness meshes with their desire.
They don't want Trump back. They are happier than anyone at the outcome of the election.
Please check my tagline.
Praying that the cowardly Republicans can come through for us
Me too.......some Republicans are as much of a threat as the Demonrats! Cowardly POS! Hope they know if they don’t do their jobs, there will be a backlash to have their jobs in their next campaigns!!!!
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