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.
Seth
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]
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.
ReplyDeleteIt'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.
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?
ReplyDeleteFascinating analysis. Thanks.
ReplyDeleteI'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.
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.
ReplyDeleteI HIGHLY doubt a recount will happen in Pennsylvania. Without Pennsylvania, the whole election-upset scheme fails.
ReplyDeleteThis 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.
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?
ReplyDeleteTRUMP NEEDS TO IMMEDIATELY
ReplyDeleteCall 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.
It appears to me that both you and Baehr have not read the entirety of the 12th amendment.
ReplyDeleteIt 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.
Note that Baehr has updated his post to reflect the same thing that I just posted.
ReplyDelete
ReplyDeleteTwelfth 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).
Do the Democrats want a civil war? Because this is how you get a civil war....
ReplyDeleteThat'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.
ReplyDeleteUmm. 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
ReplyDeleteIf the DemonRats carry through with this strategy, it seems like a good response would include shooting any DemonRat on sight.
ReplyDeleteThe Demonrats just won't take their ball and go home! It's over! Hitlary, you LOST! You are a LOSER!
ReplyDelete@John Cunningham
ReplyDeleteThat 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....