January 6, 2021 – how is this going to play out? There are many scenarios, some much easier paths for Trump than others. But, the one that is on track to occur today if nothing changes is messy. Is there anything that can be done to smooth that path? Thread:

2 The cleanest path is for Pence to refuse to count the electoral votes from AZ, GA, PA, MI, NV & WI. There is precedent for a VP to make determinations about electoral votes (HI 1961).

3 He would be correct in doing so as the votes are not properly certified under sections 5 and/or 6 of the Electoral Count Act.

4 We don’t need dueling electors in this scenario. If Pence refuses to count improperly certified votes, neither candidate would get to the minimum number of electoral votes needed to secure the election and the vote goes to Congress.

5 Then what? Well, I think Pelosi would run to SCOTUS. And I think they would sit on their hands given their recent history of staying out of the election even when they should act. No one would get the min number of electoral votes & the election would be decided in Congress.

6 Here’s the issue, I’m not sure Pence is going to do that without some bombshell proof (more than we already have) coming to light. That is a BIG move with a HUGE precedent and I just don’t know that it is going to happen.

7 The other easier path would be for the state legislatures to certify the republican electoral votes that were cast in those states. Then, we would have a bona fide dueling electors situation.

8 Pence could say without an objection that he is unsure which votes to count & then the Houses would have to both agree to the correct set of votes. Or, he could suggest a set of votes to count or merely say he would count the dem set of votes to which there would be objection.

9 I’m not going to discuss those different options now. I’m more interested in the argument that will occur in any of those situations.

10 With a cert from a state congress of the republican set, it certainly makes the job of our representatives and senators easier. The Constitution gives the state legislatures power over elections, so it is an easy sell to say the electoral votes they certify should “trump” ...

11 ... any electoral votes certified by a state executive. They have a strong argument that the republican votes should be counted. It makes it easier for the cowardly ones to take a stand and harder for the RINOs to refuse.

12 But right now, we don’t have two sets of “certified votes.” We have one set wrongfully & inadequately certified by the state executives & one set not certified.

13 We have state legislatures that say they’d like a special session to certify the republican set of electors in many states, but state executives who will not call the session. The state legislatures should call it themselves, but they’re not doing it.

14 So, can electoral votes that have not been certified be considered? I argue they can and, in fact, must be. But would they have any effect? They could.

15 Here’s the messy path. Section 15 of the ECA discusses the possibility of dueling electors and objections. The ECA states that,

16 “Two tellers … shall be handed, as they are opened by the President of the Senate, ALL the certificates & PAPERS PURPORTING TO BE certificates of the electoral votes, which certificates & PAPERS SHALL BE OPENED, presented, & acted upon ...“

17 “Purporting to be” and “all … papers” are the important phrases for my argument here. The ECA does not say the VP will open the certified votes, it says “all the certificates AND papers purporting to be certificates of the electoral votes.

18 Notably, the votes sent by the republican electors are certified by the electors, though not the governor. Getting hung up on “certified” is misguided. The powerful words in that sentence are "all" and “purporting.”

19 At least these votes purport to be electoral votes, so they can and must be considered. So, discussion and debate will occur in both Houses separately. And here again is the problem of the cowards and the RINOs. They need a little sugar to help the medicine go down.

20 Here is the action item. The state legislatures should send a letter to every Republican US senator and representative referencing Article II Section 1 of the Constitution & say at least one, but preferably both, of the following:

21 the democratic set of electoral votes sent from our state were not made in the Manner this legislature directed; and/or

22 each person who signed this letter would have voted to certify the republican set of electors presented to Congress if the governor would have granted our request to call a special session.

23 As to #1, the letter would make the argument to refuse to count the democratic votes much easier. As to #2, with enough signatures, Congress can see that a certification would have been given to the republican set of electors.

24 Still, the Houses won’t agree to the republican set of votes, but not counting the votes in these states pushes the election to the Houses where the cowards and RINOs would be hard-pressed to vote against Trump, especially with a letter like this in hand.

25 It doesn’t make the election a sure thing, but it would certainly help. And we can take all the help we can get.

@threadreaderapp please unroll