"There is always a philosophy for lack of courage."—Albert Camus

Monday, November 28, 2016

How The Recounts Pose A Risk To Mike Pence

At American Thinker, Richard Baehr explains:

The recount in Wisconsin, and the coming ones in Michigan and Pennsylvania will not change the outcomes in any of the states. No recount ever changes thousands of votes. I do not think that is the purpose.

The recounts, if done by hand, which can be demanded, may take longer than the last day for completing the official counts in a state and directing Electoral College voters. If all 3 states miss the deadline, Trump is at 260, Hillary at 232.  No one hits 270.

Then this goes to Congress, where the House voting 1 vote per state elects Trump, and Senate selects Pence. This would be first time this happened since 1824, but in that case, John Quincy Adams won in the House, though he had fewer electoral college votes than Andrew Jackson.

If this goes to the US House and Senate, and the result is the same as result from the Electoral College without the recounts, why do it?  The answer is to make Trump seem even more illegitimate, that he did not win the popular vote  (he lost by over 2.1 million), he did not win the Electoral College (did not reach 270), and was elected by being inserted into the presidency by members of his own party in Congress.

Richard Baehr, The Democrats’ real strategy in launching recounts, American Thinker (Nov. 27, 2016), http://tinyurl.com/gllh85f. Baehr is right, but the Stein-Democrat recount strategy only works if all 3 states fail to recount their states’ votes in time and fail to appoint a Trump-slate of electors. As long as 1 of the 3 states completes a timely recount, Trump-Pence are home-and-dry.

Still if all 3 states fail to make a timely recount and fail to appoint their slate of Trump-Pence electors…then the presidential race will be thrown into the House where each State has one vote. Under Article II and the Twelfth Amendment, Trump has to carry a majority of state delegations (26 of 50). There is a separate quorum requirement: 2/3 of the States (34 of 50) must have one or more members present. Trump can probably meet this bar: 32 of the state delegations in the 115th Congress will have Republican majorities (albeit some are narrow majorities), and 11 other state delegations have 1 or more Republican members. So the Republicans should be able to reach a quorum of 34 States with one or more members present.

However, if all three 3 states fail to make a timely recount and fail to appoint their slate of Trump-Pence electors…then the vice presidential race will be thrown into the Senate. Under Article II and the Twelfth Amendment, Pence will need a majority of the “whole number” of senators. The Republicans have such a majority. But the Twelfth Amendment also has a quorum requirement: “two-thirds of the whole number of Senators.” [2/3 is 67 of 100 senators, assuming all elected Senators are alive and sworn during the proceedings to select a Vice President.] The Republicans cannot meet this bar, at least not absent Democratic participation. By absenting themselves, the Democrats can block the narrow Senate Republican majority from selecting Pence.

Worst or best case situation…depending on your point of view…the Senate fails to elect a Vice President and the House fails to elect a President. How could the latter happen? Paul Ryan will be in the chair. Ryan might delay the vote or he might allow the vote to be delayed by dilatory opposition motions. If something like that should happen, and if no President and no Vice President are elected by the House and by the Senate, respectively, then the Presidential Succession Act of 1947 kicks in…and the acting presidency will fall to…the Speaker of the House (if he chooses to take it), and if the Speaker fails to take it, then to the Senate President Pro Tempore (“SPPT”) (if he chooses to take it), and if they fail to take it, then to cabinet members. By this time, most (perhaps, all) of President Obama’s cabinet will have already resigned, and so the acting presidency might fall to someone not holding a highly significant cabinet post.

There is now a significant academic literature suggesting that it is unconstitutional for the acting presidency to fall to House and Senate officers, such as the Speaker or SPPT. (I note that I do not share this view, which is now a commonplace in academia.) Based on this view, should the Speaker or SPPT (as opposed to Donald J. Trump) succeed to the (acting) presidency, it is likely that an outgoing Obama-era cabinet member would sue to displace (as in “replace”) the Speaker or SPPT who is acting as President.

None of the eventualities described above would be good. 


Twitter: https://twitter.com/SethBTillman ( @SethBTillman ) 

My prior post: Seth Barrett Tillman, Where My Views Were Discussed, Quoted, or Cited: Volokh, Daily Caller, Bloomberg, New York Mag, NY Times, etc, The New Reform Club (Nov. 22, 2016, 12:58 PM). [here


bflat879 said...

If this is the strategy then it's just wrong. I can't think of a better way to make a bad situation worse than pulling a stunt like this. Is the Constitution going to become a suicide pact in the hands of Democrats? They seem to find loopholes and exploit them, and not for the benefit of the country.

It's time to send these people packing and I don't mean by violent means, but at the ballot box. If the Democrats go along with Stein on this, they should be sent packing the next election. Luckily, we don't have far to go.

William said...

Under your scenario of Pence not being confirmed using election procedures per the 12 Amendment, what would stop Trump from waiting until the next Congress and nominating Pence under provisions of the 25th Amendment which just requires simple majorities in both houses and has no quorum requirement?

Bob Ellison said...

Fascinating analysis. Thanks.

I'd like to see your comments on "...significant academic literature suggesting that it is unconstitutional for the acting presidency to fall to House and Senate officers..." The current order of succession seems mostly governed by Acts in 1947 and earlier. That's pretty flimsy. The Postmaster General is no longer in line, too, and he keeps delivering my mail, which makes him seem like a good guy, whoever he is.

Skipper said...

The recount in Wisconsin is reminiscent of the attempted recall of Governor Walker. How did that work out for the Democrats? They may try to cast doubt on Trump's legitimacy, but it may likely do the opposite, much like Walker receiving a larger vote in the recall than in the original election.

JPL17 said...

I HIGHLY doubt a recount will happen in Pennsylvania. Without Pennsylvania, the whole election-upset scheme fails.

This is because Pennsylvania law does NOT allow recounts by right. It instead requires the interested party to file a lawsuit alleging that vote fraud / tampering probably occurred, and then to prove same.

However, neither Jill Stein nor the Clinton campaign have ANY evidence suggesting that vote fraud / tampering occurred in Pennsylvania. Moreover, the deadline for the filing of such a lawsuit is TODAY.

So as noted, it's probably not going to happen.

Donald F. Linton said...

If the house elects Trump and the democrats in the senate refuse to show up what's to stop the sitting members of the senate for repealing anything they want for Trump to sign?

TPS said...


Call a press conference and in a 2-3 minute pithy statement explain to the "Average Joe" what the Democrats are doing, and why, and how it will disrupt their lives and our country, so hell can rain down on these people, now and in the next election.

He needs to get ahead of this so he steers the narrative.

And he needs to do this NOW.

Anonymous said...

It appears to me that both you and Baehr have not read the entirety of the 12th amendment.

It includes the following: "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" The same language is used for the VP.

So if any state fails to appoint Electors, then the majority is not 270, but some lesser number calculated by reference to the Electors actually appointed.

Trump & Pence will have a majority any way you look at it, unless the Electors being challenged are actually flipped to the Democrats. And even then, all three states have to flip. Pennsylvania won't.

Anonymous said...

Note that Baehr has updated his post to reflect the same thing that I just posted.

Clark said...

Twelfth Amendment: “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”.

If all 3 states miss the deadline, what is the “whole number of Electors appointed”? 538 or 492? If missing the deadline means failing to appoint electors, then the number would be 492 and the number it takes to win would be only 247.

This memo (from the 2000 election) suggests that the number needed would stay at 270: www.heritage.org/research/reports/2000/12/the-number-of-electors-necessary-for-the-election-of-a-president. There are no doubt memos to be written that conclude the opposite. As Anonymous 11:09 points out, Trump probably wins either way (in the EC or in the House).

Fidel said...

Do the Democrats want a civil war? Because this is how you get a civil war....

Blair said...

That's all very interesting, but it forgets one very important thing: States choose electors, not voters. The states in question are under no obligation to wait for the recount, at least not under the federal constitution. Bush vs Gore proved that. There will be electors for Wisconsin, whether the count is finished or not.

Anonymous said...

Umm. All three states have certified Trump as winner. Has has the 306 electoral votes now. The only thing the recount changes if Hillary finds enough votes to overturn(according to the Dems themselves, very unlikely). Right now, he is certified as winner, until something changes that

David said...

Um. I think you have missed something that would apply in Wisconsin, if not either of the other two states: the Republicans are in charge of all three components of the state government that would figure into this.

Article 2 clearly states that "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..." The legislature has presumably set a procedure in place, but--just as in Florida in 2000--there is nothing that prevents them from choosing an alternative method should time appear to be running out.

So I would guess that it's already being taken care of and that an alternate slate would be certified by the state legislature if the recount were to take too long.

As a secondary issue, there is the even more obscure statement in Article 2 that "...the person having the greatest number of [electoral] votes for President, shall be the President, if such number be a majority of the whole number of electors appointed..." If PA, MI, and WI all failed to appoint electors as per your scenario, there would be, perforce, 46 fewer of them: so "the whole number of electors appointed" would be ( 538 - [ 20 + 16 +10 ] ) = 492. A majority of that number is 247, a number which is obviously lower than the 260 electoral votes Trump has won that are not in play. So he would win right then, and the whole House and Senate business would never come into play.

John Cunningham said...

If the DemonRats carry through with this strategy, it seems like a good response would include shooting any DemonRat on sight.

Anonymous said...

The Demonrats just won't take their ball and go home! It's over! Hitlary, you LOST! You are a LOSER!

Anonymous said...

@John Cunningham
That looks like one of the answers to "I'll take 'how to start a civil war, for $100, Alex'.

Less bloody, but of the same sort would be to shoot Democrat senators, from States w Republican state houses, which get to nominate a replacement senator.

Much more effective, and no bloody mess created, would be for the House to impeach any Senator who refuses to attend to vote. Every senator has sworn to uphold the Constitution and in this case, the duty is to attend. Voting, or abstaining are possible responses. Absvonding so as to deny the Senate its legitimate power is not.
OK, there would be a mess o' schadenfreude at the prospect of an impeached senator faced with the catch 22 of attending to defend against the impeachment, by attending..
But no blood, although "civil" war might result in the Senate....