Tuesday, September 29, 2020

If the House of Representatives selects the president, Trump Wins. But others questions remain. It could get real ugly.

by Rod Williams - I have never before been as concerned that an election for president may be messy and complicated as I am this election.   My worst-case scenario fear is that on inauguration day we have both Donald Trump and Joe Biden claiming to be the president.  I don't think we are, but I fear we may be on the brink of a civil war. I hope that is not the case but believe it is within the realm of possibility. 

Stepping back from the worst-case scenario, however, and consider something less drastic. What would happen in the event of a tie in the Electoral College.  Dr Larry J. Sabato of the Center for Politics at the University of Virginia lays out a scenario in which there could be such a tie (link). 

The Constitution provides that in the event of a tie in the Electoral College, that the House of Representatives selects the President. This is what Amendment 12 says, which amended Article 2, Section 1: 

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists 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 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. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President.-- [These dates were changed by the 20th Amendment.] The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

As you can see from above that despite Democrats controlling the House, each state gets only one vote. Democrats currently hold 233 seats to the Republicans’ 196.  However, that does not matter.  Each state gets one vote. Wyoming has 1 representative and California 57, but each gets only one vote. Currently there are 26 states with Republican majority delegations and 22 with Democrat majority delegations and 2 with split delegations. The delegations are unlikely to change significantly following the 2020 election.  In that case, unless something very unlikely has happened, the House will choose Donald Trump to be the next president. 

This addresses what would happen in a tie. But assume it is not a tie.  I have questions, but not answers.

Assume that in a certain state refuses to certify an election. In my wild imagination, it could happen like this. A battleground state used mail-in ballots.  By the deadline for accepting ballots, the Democrat governor or election commission or legislature says the deadline is extended for accepting of mail-in ballots. They justify this based on an allegations that the President used the U. S. Post Office to  cause a delay in delivery of the mail. The Republicans appeal to the court and the Supreme Court rules in favor of the Republicans. Democrats are outraged and simply refuse to certify the election results. What then?

Does the Electoral College meet without the votes from that state counted?  I doubt that would be the case. Does the Supreme Court compel the Secretary of State to certify the results and if he still refuses, order him jailed and declare the election results certified? That seems more likely but I don't know. 

What if anticipating the presidency will be decided in the House, the speaker persuades the house to refuse to seat the delegation from a couple Republican states.  That seems possible. The Constitution Article 1, Sec. 5 has this to say: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members." So could Nancy Pelosi refuse to seat the delegates of a couple states?  The Constitution is pretty clear. I see no remedy to stop this from happening.  If there is a constitutional expert or lawyer who knows how this action could be stopped, please share. I want to know. 

I am fully expecting Democrats to try to steal this election and if they are not successful at that, I expect them to be convinced that Trump stole the election. Many already believe that the 2000 election was stolen and that the Supreme Court unfairly handed the election victory to George W.  Bush, and they believe that the Russians engineered Trumps 2016 win. Many simple reject the system under which we operate and believe than anytime a president is elected who won the electoral vote but not the popular vote, then that win is illegitimate. 

We already have BLM and Antifa rioting across America, pulling innocent people out of cars and beating them, burning down businesses, assassinating police officers and intimidating people who are simply trying to enjoy a meal at an outdoor cafe.  Cancel culture rules and people who are not sufficiently "woke," are subject to being ostracized and may often lose their job.  It is dangerous to express one's support for president Trump in many places.  Never before has it been risky to put a candidates yard sign in your yard or a bumper sticker on your car.  With the anticipated Senate approval of President Trump's Supreme Court nominee, we will see a deeper level of liberal anger and intolerance for the Democratic process.  We have the perfect ingredients for turmoil. I fear many liberals will simply refuse to accept the results of the election should Trump win.  If in some Democrat states, state governors refuse to accept the results and declare Joe Biden the president, or the Democrats in the Congress do so, or units of the armed forces recognize Joe Biden as Commander-in-Chief, this could get ugly.  If someone tells them Trump tried to steal the election and his claim to the office is illegitimate, and that Joe Biden is the legitimate president, half the country will accept that. Many will act on that conviction. 

I am not a constitutional scholar and I have more questions than answers.  I would rather have knowledge than rely on feelings and I am looking for answers that will put my mind at ease, but I have a very bad feeling about this election. 

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1 comment:

  1. I believe the EC will have at least three states unable to end the count (by 13 Dec). I also will suggest at least ten to twenty House member races in the same 'mess'. The Supreme Court will be in the middle, and I think will compel the extension of the EC to late December (it'll shock people that think the hard date is absolute). Trump will get the same 30 states as in 2016, plus one or two.