I understand why people are anxious. But Biden will be president on January 20th.
Any worst-case scenario falls short.
The conservative Justices are not insane, nor are they bad at math.
They already have a 6-3 arch-conservative majority locked it. Why burn it down now?
1/
Any worst-case scenario falls short.
The conservative Justices are not insane, nor are they bad at math.
They already have a 6-3 arch-conservative majority locked it. Why burn it down now?
1/
2/ Let’s start with one worst-case scenario: Non-certification.
Even if Trump blocks the certification of ALL five close states, Biden still have a lead of 233-232 among appointed electors, and wins the electoral college under the 12th Amendment:
Even if Trump blocks the certification of ALL five close states, Biden still have a lead of 233-232 among appointed electors, and wins the electoral college under the 12th Amendment:
3/ Let me add that this isn't going to happen. Michigan has a Democrat as Sec of State (see below) and is going to certify its electors. So will the other states...
But let's play this out anyway... https://twitter.com/jedshug/status/1329445557929185284?s=20
But let's play this out anyway... https://twitter.com/jedshug/status/1329445557929185284?s=20
4/ You still have to believe that some combination of 3 or 4 elected state legislatures will override a clear majority of their voters...
after saying there's no way they would...
provoking massive non-violent shutdowns of each state, and probably worse.
after saying there's no way they would...
provoking massive non-violent shutdowns of each state, and probably worse.
5/ And you'd still need five Justices on the Supreme Court to go along with this interpretation of Article II and "manner" as allowing post-election day coups by legislatures, with no role for gov veto, to reverse the election rules set in advance...
6/ If you say "Bush v. Gore" and Kavanaugh, there's nothing in Bush v Gore or in Rehnquist's concurrence or in Kavanaugh's or Gorsuch's recent opinions coming even close to permitting such a *post-election* legislative override.
7/ SCOTUS will not overturn these state counts.
Zero chance (0.000000%) there are 5 votes on the Supreme Court to make Trump president by judicial fiat. There isn't even one vote.
But let's play it out and imagine - utterly implausibly - it still gets thrown to the House.
Zero chance (0.000000%) there are 5 votes on the Supreme Court to make Trump president by judicial fiat. There isn't even one vote.
But let's play it out and imagine - utterly implausibly - it still gets thrown to the House.
8/ Yes, I've written about 12th A's rule: “In choosing the President, the votes shall be taken by states, the representation from each state having one vote.”
Yes, GOP would have a majority of state delegations... if the Dems let them all get seated... https://time.com/5889013/absentee-mail-votes-recounts/
Yes, GOP would have a majority of state delegations... if the Dems let them all get seated... https://time.com/5889013/absentee-mail-votes-recounts/
9/ If somehow all of those state Republicans and Senate Republicans have shredded democracy by what I call "constitutional beanball," not just hardball...
Attempting a coup deep into January...
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3326275
Attempting a coup deep into January...
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3326275
10/ Pelosi and the House Democrats have at least one beautiful hardball pitch to make in January:
Refusing to seat Republican House members-elect until after Biden is inaugurated.
I call it the chutzpah rule... https://columbialawreview.org/content/hardball-vs-beanball-identifying-fundamentally-antidemocratic-tactics/
Refusing to seat Republican House members-elect until after Biden is inaugurated.
I call it the chutzpah rule... https://columbialawreview.org/content/hardball-vs-beanball-identifying-fundamentally-antidemocratic-tactics/
11/
Chutzpah Rule: If a state refuses to certify electors b/c it claims its presidential vote is not clear, it has no claim to rely on its vote for House delegation. The House Majority can delay seating some of their members...
Chutzpah Rule: If a state refuses to certify electors b/c it claims its presidential vote is not clear, it has no claim to rely on its vote for House delegation. The House Majority can delay seating some of their members...
12/ By using democratic hardball jiujitsu, Pelosi & House Dems can flip the bad-faith Republican arguments about vote counts against their own GOP House Members-Elect.
The House Dems can make sure there are 26 state delegations to elect Joe Biden President around Jan 6th.
The House Dems can make sure there are 26 state delegations to elect Joe Biden President around Jan 6th.
13/PS:
Some say Powell v McCormack forces House to seat such Members-Elect.
1. Chutzpah: Seating Members still depends on election results. These members dispute their own election!
2. Oath of “faithful discharge” & “uphold constitution” bars bad faith abuse of office.
Some say Powell v McCormack forces House to seat such Members-Elect.
1. Chutzpah: Seating Members still depends on election results. These members dispute their own election!
2. Oath of “faithful discharge” & “uphold constitution” bars bad faith abuse of office.
14/PS there is precedent for the political flexibility of which delegations get seated in Congress based on their conduct and legitimacy.
See Reconstruction and the adoption of the Reconstruction Amendments...
See Reconstruction and the adoption of the Reconstruction Amendments...