The Battle Will Come After the Voting is Over!

Written by Nick Licata

Even if Biden had clearly won enough electoral votes after the November election, Trump’s attorneys are prepared to go nuclear. 

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Two recent Citizenship Politics columns dealt with the slowdown of mail-in ballots by USPS (past the deadline for them to be counted) and President Donald Trump’s strategies for capturing the electors.

The Trump Campaign will try to disqualify as many mail-in ballots as possible. Trump has personally implied through his public statements that armed civilians should monitor polling stations. Armed militias have already made statements that they will not allow the Democrats to steal the election from Trump. The public has no way of knowing the full scale of these efforts. But their intent is clearly to discourage people of color and other members of the Democrats’ base from voting.

Since a number of key states will not reach a final tally of mail-in ballots until the end of the week.  Trump may have a majority of the popular vote that’s been counted on election night — something known as the “red mirage.” Most mail-in votes will be added later in the week. Trump will say they are fraudulent and that counting them would be unlawful.

This situation drives Trump to say that the Supreme Court will decide the election. His strategy after Election Day will rely on (1) invalidating as many mail-in ballots as possible; (2) blocking enough states from certifying their electors that the election is thrown into the House of Representatives; and (3) asking the Supreme Court to rule on which slates of electors must be accepted.

If no candidate receives “a majority of the Whole number of Electors appointed” — as specified by the 12th Amendment — the House will vote on Jan. 6 among the top three candidates (probably Trump, Biden, and Libertarian Party candidate Jo Jorgensen). Each state delegation will get one vote (not one per representative). This one-state-one-vote rule is another advantage granted to rural states, in addition to those states having extra weight in the Electoral College.

At the present time, Republicans hold a majority of House delegations in 26 states. Democrats hold a majority of delegations in only 22 states, and two other states have tied delegations. If that is still true when the new House members meet on Jan. 6, the winner would be Donald Trump, 26–22, with 2 states tied and not counted.

If Biden earns a majority of electors based on each state’s popular vote, Trump’s strategy will be to hold up enough state counts in court so that a few states are barred from certifying any electors by Dec. 14, when the Electoral College convenes in state capitals.

For the sake of this discussion, let’s say Trump on Dec. 14 received 268 electoral votes while Biden received only 250. (Imagine that a state, like Pennsylvania, with 20 electoral votes was prevented by a court from appointing any electors for Biden.) Trump’s 268 electors would be fewer than 270 — an absolute majority of 538 — but his 268 would be 51.7% of the 518 electors who managed to be appointed by Dec. 14.

The Supreme Court would decide. Does “a majority of the Whole number of Electors appointed” mean the number who were legally appointed by Dec. 14 or does it mean the number who could have been appointed? With Amy Coney Barrett on the court, the conservative majority could vote 6–3 that the phrase means the number who were legally appointed by Dec. 14. Of course, they would justify their decision by saying that they took the wording of the constitution literally, i.e. they were not acting as activist judges. Trump would win the Electoral College, 268–250, or 51.7%. Even if Chief Justice John Roberts joined the liberals to make the decision only 5–4, Trump would win.

The 26 House delegations that have a majority of Republican representatives would vote on Jan. 6 to follow the Supreme Court’s ruling. Trump would be re-elected, no matter how small his popular vote was.

The voting on Jan. 6 will involve the newly elected members of Congress, not the old lame-duck members. Could Democrats flip enough US House seats on Nov. 3 to control 26 state delegations on Jan. 6?

The answer is almost certainly, “No.”

There are currently only four US states that could change from a US House delegation that is Republican-majority or tied to a delegation that is Democratic-majority or tied (assuming one seat in each state flips from R to D). Pennsylvania and Michigan currently have tied delegations. Florida has a one-seat majority for the Republicans, and Wisconsin has a two-seat Republican majority:

• Pennsylvania’s delegation is currently tied, with 9 R’s and 9 D’s. As of Oct. 21, the nonpartisan Cook Political Report rates only one seat in Pennsylvania as a toss-up: Rep. Scott Perry’s seat in Congressional District 10.

• Michigan’s delegation is currently tied, with 7 R’s and 7 D’s. Cook rates only one seat in Michigan as a toss-up: Rep. Justin Amash’s seat in CD 3. (Note: Amash switched from Republican to Libertarian earlier this year, but he is not running for re-election. The seat has been held by a Republican, including Amash, for more than a decade.)

• Florida’s delegation is currently majority-Republican, 14 R’s, and 13 D’s. Cook does not rate any seats in Florida as toss-ups. Therefore, none of the seats are likely to change parties.

• Wisconsin’s delegation is currently majority-Republican, 5 R’s and 3 D’s. Cook does not rate any seats in Wisconsin as toss-ups. Therefore, none of the seats are likely to change parties.

Even if the D’s somehow flipped one seat in three delegations — Pennsylvania, Michigan, and Florida — 25 states would then vote for Trump/Pence and 25 would vote for Biden/Harris. This would be a tie, producing no winner.

In that case, the Senate would cast one vote per senator (not per state) for the position of vice president. If Republicans are still a majority of senators on Jan. 6, the Senate would vote for Trump to become vice president. But Trump would immediately become president, because the office of the presidency would be vacant, due to the House’s tie vote. However, if the Senate did flip over to a 51–49 Democratic majority after the election — which would require a net gain of four seats — the new senators would be voting, and Biden would win.

As if all of this weren’t already too mind-boggling, the president of the Senate on Jan. 6 will still be Mike Pence, since his term doesn’t expire until Jan. 20. This provides Trump an opportunity to have his vice-president determine how the Senate rules will determine the electors for selecting the next vice-president.

Should Republicans retain control of the Senate, the Democratic senators could conceivably boycott the Senate vote, thereby depriving the body of the two-thirds quorum that is required by the 12th Amendment. If the House were tied, and the Senate had no quorum, neither the House nor the Senate would legally have made any decision. Most likely the Republican Senators would meet and vote anyway, claiming victory. The Supreme Court could then rule on which candidate had enough electoral votes to win.

Even if Biden had clearly won enough electoral votes after the November election, Trump’s attorneys are prepared to go nuclear with one last tactic. Before the House can formally vote to accept the Electoral College votes in January, Republican-controlled legislatures could convene November special sessions in states where he lost the popular vote. The R legislators could declare that there was “massive fraud” in a state’s mail-in ballots — for example, millions were printed and mailed by Ukraine — and appoint the legislature’s own slate of Trump electors. This is arguably permitted under the US Constitution, which provides that electors shall be appointed “in such Manner as the Legislature thereof may direct.” Changing the manner of elector selection after the votes have been counted might violate existing state laws, but guess who would decide on this — the Supreme Court.

Trump might lose the popular vote in five states rated “toss-up” by 270toWin’s 2020 Consensus that happen to have Republican legislatures and governors. They are Florida (29 electoral votes), Ohio (18), Georgia (16), Arizona (11), and Iowa (6). If all five legislatures acted, a total of 80 electoral votes would shift from Biden to Trump. That would be a highly controversial move. It would also require a lot of coordination among state Republican leaders. Nevertheless, it is 2020, and many unbelievable things have happened already.

Four other toss-up states have R-majority legislatures but Democratic governors. They are Pennsylvania (20), Michigan (16), North Carolina (15), and Wisconsin (10). Under the US Code (3 USC §5), governors may submit their own slate of electors by Dec. 8, 2020, if electors in a state are contested. A Democratic governor’s slate would compete with a Republican legislature’s slate when the US House votes on Jan. 6 whether to accept each state’s electors.

If Republican legislatures “went rogue” and appointed their own electors, could states with Democratic legislatures and governors play “tit-for-tat, replacing Trump electors with Biden electors? Not really, because the Democrats only control Maine that has both a Democratic-controlled legislature and a Democratic governor.

The Supreme Court would decide which slates were the legitimate ones. The conservative majority of the court could side with the legislatures’ slates. The court could also bar the US House from considering competing slates that were based on the popular vote. Trump would win a majority of electors.

With the slew of attorneys that are now working for the Trump Campaign and the Republican National Committee, the above possibilities are serious legal mechanisms that Republicans may fully intend to use. On the other hand, neither strategy would work if Biden won such a huge majority in the Electoral College that even switching the electors of several states from D to R would not get Trump re-elected.

For the good of the nation, the path to a peaceful and normal transition to a new presidency would best be secured by a Biden landslide. That would not be necessary if Donald Trump had not repeatedly claimed that fraud and cheating were the only possible reasons why he would lose.

Hold on tight for the battle that will begin on Nov. 4.

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