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StarfishSaver

(18,486 posts)
Fri Jul 3, 2020, 07:01 PM Jul 2020

Earlier today, I posted a Newsweek story with a doomsday scenario about the election. Taking it back

Last edited Fri Jul 3, 2020, 08:52 PM - Edit history (1)

https://www.democraticunderground.com/100213692442

After reading some posts here and doing more research, I think the authors' premise is flawed. Here's what they said:

Newsweek: How Trump Could Lose the Election--And Still Remain President

For Trump, there are two broad pathways to maintaining power. First, we can already see very clearly a strategy designed to suppress voter turnout with the purging of registration rolls of large numbers of mostly urban voters; efforts to suppress mail-in ballots, which are more necessary than ever, given COVID-19; a re-election apparatus that is training 50,000 poll watchers for the purpose of challenging citizens' right to vote on Election Day; and significant efforts to make in-person voting in urban areas as cumbersome as possible in order to have long lines that discourage people from exercising their voting rights.

The second pathway to subverting the election is even more ominous—but we must be cognizant of it because Trump is already laying the groundwork for how he can lose the popular vote, and even lose in the key swing states necessary for an Electoral College victory, but still remain president.

Something like the following scenario is not just possible but increasingly probable because it is clear Trump will do anything to avoid the moniker he hates more than any other: "loser."

Trump actually tweeted on June 22: "Rigged 2020 election: millions of mail-in ballots will be printed by foreign countries, and others. It will be the scandal of our times!" With this, Trump has begun to lay the groundwork for the step-by-step process by which he holds on to the presidency after he has clearly lost the election:

Biden wins the popular vote, and carries the key swing states of Arizona, Wisconsin, Michigan and Pennsylvania by decent but not overwhelming margins.

Trump immediately declares that the voting was rigged, that there was mail-in ballot fraud and that the Chinese were behind a plan to provide fraudulent mail-in ballots and other "election hacking" throughout the four key swing states that gave Biden his victory.

...

Trump indicates this is a major national security issue, and he invokes emergency powers, directing the Justice Department to investigate the alleged activity in the swing states. The legal justification for the presidential powers he invokes has already been developed and issued by Barr.

The investigation is intended to tick down the clock toward December 14, the deadline when each state's Electoral College electors must be appointed. This is the very issue that the Supreme Court harped on in Bush v. Gore in ruling that the election process had to be brought to a close, thus forbidding the further counting of Florida ballots.

All four swing states have Republican control of both their upper and lower houses of their state legislatures. Those state legislatures refuse to allow any Electoral College slate to be certified until the "national security" investigation is complete.

The Democrats will have begun a legal action to certify the results in those four states, and the appointment of the Biden slate of electors, arguing that Trump has manufactured a national security emergency in order to create the ensuing chaos.


The issue goes up to the Supreme Court, which unlike the 2000 election does not decide the election in favor of the Republicans. However, it indicates again that the December 14 Electoral College deadline must be met; that the president's national security powers legally authorize him to investigate potential foreign country intrusion into the national election; and if no Electoral College slate can be certified by any state by December 14, the Electoral College must meet anyway and cast its votes.

The Electoral College meets, and without the electors from those four states being represented, neither Biden nor Trump has sufficient votes to get an Electoral College majority.

The election is thrown into the House of Representatives, pursuant to the Constitution. Under the relevant constitutional process, the vote in the House is by state delegation, where each delegation casts one vote, which is determined by the majority of the representatives in that state.

Currently, there are 26 states that have a majority Republican House delegation. 23 states have a majority Democratic delegation. There is one state, Pennsylvania, that has an evenly split delegation. Even if the Democrats were to pick up seats in Pennsylvania and hold all their 2018 House gains, the Republicans would have a 26 to 24 delegation majority.

This vote would enable Trump to retain the presidency.

https://www.newsweek.com/how-trump-could-lose-election-still-remain-president-opinion-1513975


Here, in my opinion, is the flaw in the premise: "The Democrats will have begun a legal action to certify the results in those four states, and the appointment of the Biden slate of electors, arguing that Trump has manufactured a national security emergency in order to create the ensuing chaos."

However, I don't believe it's necessary for the Democrats to have to try to force any state to certify the results in order for the Electoral College to elect a president.

The Constitution, as amended by the 12th Amendment provides:

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; -- The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; -- 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 ...

... and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.


According to my reading of this clause, it is the majority of the electors actually appointed and certified - not the number of electors overall - that determines the winner. So, if one or more states refuses to certify electors, for whatever reason, they're just left out and the other states who have appointed electors move forward with the vote and the majority of THOSE states determine who will be president.

Not only would the election not be thrown to the House of Representatives, but in all likelihood, Biden would get a larger majority as a percentage since states that Trump won would be left out of the equation.

For example, assuming 539 electoral votes total, suppose Biden wins states with 300 electoral votes and Trump wins states with 239 electoral votes. Under normal circumstances, Biden would win the election with 56% of the Electoral College. Now assume that four of Trump's states representing 40 electoral votes refuse to certify their electors. The Electoral College would still meet, just without those 40 electors. Biden would still get 300 electoral votes while Trump would get 199 - meaning Biden would win with 60% of the vote.

The only way this would ever even get to the House of Representatives would be if the Electoral College vote ended up in a tie. In that case, each state would be given one vote and the doomsday scenario the authors pose would kick in with the House of Representatives voting for the winner, with one vote per state. But even then, there would have to be a 2/3 quorum in the House and as a DUer pointed out in a different thread, the Democrats could force the absence of a quorum.

But this is all highly unlikely since it's improbable that the Electoral College will end up in a tie and there is nothing that Trump or Barr could do to force that to happen.

So, unless my analysis is off, I think the Newsweek piece is not cause for tremendous alarm - although it IS an important reminder that we have to watch these people like hawks and be ready to push back hard if it even looks like they're up to no good. Because the fact that this particular avenue might not work doesn't meant they're not coming up with all sorts of other ways to steal the election.

Thoughts?

ON EDIT: I assumed that the states withholding their electors voted for Trump, but Elad pointed out below that the Newsweek scenario assumed that Biden won four swing states controlled by Republicans - Arizona, Michigan, Wisconsin and Pennsylvania - and that those states refused to seat their electors. In that case, if the election were close and Biden received fewer than 297 electoral votes, taking away those states' 56 votes could give the election to Trump.
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Earlier today, I posted a Newsweek story with a doomsday scenario about the election. Taking it back (Original Post) StarfishSaver Jul 2020 OP
Great analysis. I think you are correct...makes sense. Demsrule86 Jul 2020 #1
Alarm sells, calm doesn't Maeve Jul 2020 #2
Great post! Thank you for it. Squinch Jul 2020 #3
Based on your analysis, I'd say you're correct. CaptainTruth Jul 2020 #4
In the Newsweek scenario, the 4 states that don't certify are Biden states, not Trump states. Elad Jul 2020 #5
So in that scenario, Foolacious Jul 2020 #6
That's a good point StarfishSaver Jul 2020 #7
I also should note StarfishSaver Jul 2020 #11
Thanks for the clarity, but the four states mentioned in the article would subtract from Biden's #'s Fiendish Thingy Jul 2020 #8
Yes - Please see that I edited my OP to say that StarfishSaver Jul 2020 #10
In Mi., each candidate selects a group of 16 electors and submits that list to the SOS who is a Dem Kaleva Jul 2020 #12
Thanks! I've wondered about the SoS vs. Legistlature Fiendish Thingy Jul 2020 #15
In Michigan, the candidates themselves appoint the electors. Kaleva Jul 2020 #17
I've been saying this for awhile and use the elections of 1864 and 1868 as examples. Kaleva Jul 2020 #9
So, are you saying the House could reject electors appointed by GOP state legislatures? nt Fiendish Thingy Jul 2020 #16
Both chambers would have to agree to it. Kaleva Jul 2020 #18
It is more likely that Trump Chainfire Jul 2020 #13
No offense but aren't you limited to four or five paragraphs on an excerpt? lostnfound Jul 2020 #14

Elad

(11,395 posts)
5. In the Newsweek scenario, the 4 states that don't certify are Biden states, not Trump states.
Fri Jul 3, 2020, 08:13 PM
Jul 2020

Your analysis looks at 4 Trump states not certifying.

No other opinion on this, just pointing out.

Foolacious

(497 posts)
6. So in that scenario,
Fri Jul 3, 2020, 08:30 PM
Jul 2020

the Traitor retains 238 (not 239) electoral votes and Biden has 260 out of the 498 certified electors (out of a max of 538). Biden still wins, by this analysis. But suppose it's closer: the Traitor has 258, Biden would have had 280, but 40 ostensible Biden electors sit out because their Republican-controlled state governments force them to. Then the Traitor ends up with 258, Biden with 240. So we're still counting on Republican-controlled state governments to do what is right in the case of a close election.

 

StarfishSaver

(18,486 posts)
7. That's a good point
Fri Jul 3, 2020, 08:47 PM
Jul 2020

Those states have a combined 56 electoral votes.

If the election is close, Biden is ahead by 56 electoral votes or less and all four of those states refuse to certify electors, Trump could win with 242 electoral votes.

But I still don't see a scenario for the election to go to the House of Representatives unless there's a tie. And I think the assumption that "without the electors from those four states being represented," it's possible that "neither Biden nor Trump has sufficient votes to get an Electoral College majority" and therefore the vote would be sent to the House is wrong. The Constitution requires that one of the candidates gets a majority vote of the electors certified, meaning a majority of those voting. The only way that would happen is if there's a tie. Otherwise, whoever gets a majority of the votes of those voting would win.

 

StarfishSaver

(18,486 posts)
11. I also should note
Fri Jul 3, 2020, 09:11 PM
Jul 2020

That in many states, the legislature doesn't certify the election - the chief state election official does. For example, in Michigan, the Secretary of State certifies the elections, not the legislature - and the Secretary of State is a Democrat.

Fiendish Thingy

(15,369 posts)
8. Thanks for the clarity, but the four states mentioned in the article would subtract from Biden's #'s
Fri Jul 3, 2020, 08:57 PM
Jul 2020

Not Trump’s. Your example subtracts from Trump’s total - what states would refuse to certify electors if Trump won?

The article mentions AZ, PA, MI and WI as being states that Trump would potentially challenge if Biden won, and whose legislatures could hypothetically refuse to appoint electors.

If Biden wins FL, NC and NH he would get 270, which would make him the winner, no matter what other states refuse to certify their electors.

I agree this scenario is unlikely to succeed, but I don’t rule out the Trump campaign trying it.

Kaleva

(36,147 posts)
12. In Mi., each candidate selects a group of 16 electors and submits that list to the SOS who is a Dem
Fri Jul 3, 2020, 09:11 PM
Jul 2020

"Presidential candidates on the Michigan ballot submit a list of 16 qualified electors to the Secretary of State's Office. The 16 electors whose candidate wins Michigan's popular vote will participate in the Electoral College at the State Capitol in December."

https://www.michigan.gov/sos/0,4670,7-127-1633_8716-27662--,00.html

Fiendish Thingy

(15,369 posts)
15. Thanks! I've wondered about the SoS vs. Legistlature
Sat Jul 4, 2020, 12:26 AM
Jul 2020

How the rules differ from state to state regarding the appointment of electors.

I guess in some states, such as Michigan, the electors are appointed based on the certification of the popular vote by the SOS, but in other states, the legislature appoints them?

Does anyone know of a handy compendium of information regarding each states’ procedure for appointing their electors?

No wonder each campaign has hundreds of lawyers on hand...

Kaleva

(36,147 posts)
17. In Michigan, the candidates themselves appoint the electors.
Sat Jul 4, 2020, 04:04 PM
Jul 2020

Each candidate on the ballot submits a list of electors to the SOS. The candidate who is certified by the SOS (who happens to be a Dem in Mi.)to have won the popular vote in the state then has his or her electors appointed as such. The state legislature has nothing to do with who serves as electors.

Kaleva

(36,147 posts)
9. I've been saying this for awhile and use the elections of 1864 and 1868 as examples.
Fri Jul 3, 2020, 09:08 PM
Jul 2020

Last edited Sat Jul 4, 2020, 04:06 PM - Edit history (1)

In the election of 1860, a candidate needed to win at least 152 electoral college votes in order to be declared the winner. In 1864, a candidate needed to win at least 118 electoral college votes in order to be declared the winner.

In 1864, Louisiana and Tennessee both participated in the national election and appointed electors but the votes of the electors were rejected by Congress and the number of those electors were not included in the total in determining the threshold a candidate must meet in winning a majority.

Chainfire

(17,308 posts)
13. It is more likely that Trump
Fri Jul 3, 2020, 09:43 PM
Jul 2020

once the defeat has become apparent to him, will take all of his toys and walk of the job before the end of the year, if not before the election day.

lostnfound

(16,139 posts)
14. No offense but aren't you limited to four or five paragraphs on an excerpt?
Fri Jul 3, 2020, 10:45 PM
Jul 2020

You might want to copy your thread in case it gets deleted and/or edit the Newsweek article down to a few paragraphs

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