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]