Elie Mystal: That "Little Secret" Between Trump and Johnson? Here's What It Could Mean.

[Gaugamela]

Watch “MAGA” Mike Johnson on December 11. If he refuses to extend the election certification deadline on that date, then their plan is to gum up the works and throw it to the Supreme Court. Mystal goes into more detail, but that’s my tl;dr version.

A little Halloween reading:

If enough states refuse to certify the results of the election and submit a slate of electors—with the Supreme Court’s blessing—the math is not actually hard for Trump. Let’s say Vice President Kamala Harris wins the bare majority of Electoral College votes necessary, 270, but the Republican legislature in Wisconsin refuses to submit the state’s 10 electors by the deadline. In this scenario, the new total number of electors becomes 528, not 538—and Trump needs only 264 electoral votes to “win.” If you take Wisconsin and Nevada’s six electors out of the mix, Trump needs only 262 electoral votes to “win.” He’ll likely achieve those numbers without having to win one of the “blue wall” states.

It’s possible to play with the numbers until you find a “tie” scenario at which point the contingent election goes to the House of Representatives, but the far more likely situation is that Trump decreases the overall number of electoral votes available until he can claim a majority of the ones remaining.

And this is where Speaker Johnson becomes critical to the whole “secret” plan. In 2020, Nancy Pelosi was speaker of the House. If states had tried to get cute and not submit their electors by the December 11 deadline, Pelosi would just have extended the deadline. But Speaker Johnson surely won’t. If electors are not submitted by December 11, he’ll likely declare the process “over” and say that the electors appointed by that date are the only ones allowed to vote for president.

Crucially, Johnson can do this even if Republicans lose the House and Johnson is removed from power. The new House isn’t sworn in until January 3. As the violent MAGA people in your family already know, January 6 is when the House certifies the results of the Electoral College, but that is just a ceremonial day. By the time we get to January 6, the electors are supposed to have voted. December 11 is the deadline for appointing electors, December 25 the deadline for voting. Mike Johnson will still be in charge on both of those days.

https://www.thenation.com/article/politics/little-secret-trump-johnson-election/

[Fiendish Thingy]

1. Mystal joins the ranks of supposed experts embarrassing themselves in public

First of all, the article gets the dates wrong.
Safe Harbor date (deadline for states to certify EV’s): December 8
Date the the Electors meet to cast their votes: December 17

https://spectrumnews1.com/ca/southern-california/politics/2024/10/01/key-dates-to-know-this-election-season

Johnson has no authority to declare the election “over”, or extend deadlines, and the ECRA requires all court challenges to be resolved by the safe harbor date in December.

It is unconstitutional for states to fail to send electors to congress, and five of the seven swing states have Democratic governors, who are the final authority in appointing electors.

https://protectdemocracy.org/work/understanding-the-electoral-count-reform-act-of-2022/

Michigan just replaced two elections officials who were planning to defy orders and hand count all ballots in their district.

All the swing states have measures in place, most of them tested in previous elections, to deal swiftly and effectively with officials who refuse to certify results.

In most swing states, officials who violate their oaths and defy court orders to verify results will go to jail.

https://www.citizensforethics.org/wp-content/uploads/2024/08/ElectionCertificationUnderThreat-2.pdf

[Gaugamela]

3. Actually, Mystal got the dates right. The dates you're using are for California.

By December 11, 2024—States issue Certificates of Ascertainment

(at least six days before the meeting of the electors)

Your State's Executive prepares seven Certificates of Ascertainment. Immediately after the election results in your State are certified, the Executive sends one of those original Certificates of Ascertainment to the Archivist.

December 17, 2024—electors vote in their States

The electors meet in their respective States and vote for President and Vice President on separate ballots. The electors record their votes on six Certificates of Vote, which are paired with the six remaining Certificates of Ascertainment. The electors sign, seal up, and certify six sets of electoral votes. A set of electoral votes consists of one Certificate of Ascertainment and one Certificate of Vote.

December 25, 2024—electoral votes arrive

Electoral votes must be received by the President of the Senate and the Archivist no later than the fourth Wednesday in December. If votes are lost or delayed, the Archivist may take extraordinary measures to retrieve duplicate originals.

https://www.archives.gov/electoral-college/key-dates

[Fiendish Thingy]

5. The deadlines are the same across the country

Spectrum must have used the 2020 dates and just recycled them.

Mystal omitted December 17 as the date for the Electors to meet and cast their votes, saying voting stops on December 25, which isn’t true- all voting is held on the same day.

Dates aside, Mystal is wrong about Everything else regarding Johnson’s power etc.

[Gaugamela]

6. The state deadlines are determined by each state and vary. Mystal is citing the federal deadlines.

[Fiendish Thingy]

8. The electoral college deadlines are the same nationwide

That is, the safe harbor date, electoral college voting date and transmittal deadline are the same for every state. Those are dictated by federal law and the constitution.

What may differ are the dates each state has for certifying election results, etc.

And Mystal still misquoted the federal deadlines for this year.

[Gaugamela]

9. Anyway, we'll see how it works out in 2 or 3 weeks. I have zero doubts the MAGA crowd

will do everything they can to try to steal this.

[Gaugamela]

4. As for the ECRA, which is over 4000 pages and I have no intention of reading:

In 2022, Congress passed the Electoral Count Reform Act. This is the only thing our government actually did to address the failed coup attempt launched by Trump after the 2020 election. Its most important provisions essentially provide a legal fast track for election-certification challenges, which would take these disputes out of partisan legislatures and meandering state courts and put them in front of federal judges.

That might sound comforting, but it shouldn’t. Putting any of these challenges in front of federal judges sets them on a collision course with the Republican-controlled Supreme Court. As John Roberts and his cabal of antidemocratic goons (and their wives) have repeatedly shown this year, the Supreme Court is willing to do Trump’s dirty work. In 2020, the Supreme Court rejected almost all of Trump’s various nonsensical claims to overturn that election. But I wouldn’t be so sure they’ll do so again, especially because this time the Trump people will not necessarily be asking the court to overturn the results of a state’s election. They’ll just be asking them to delay certification of those results, until some later date. In addition to ruling for the Trumpers outright, the court could simply delay hearing the case for as long as the delay is helpful for Trump. The Supreme Court can put its thumb on the scale for Trump simply by pretending to “stay out of it” and allowing the “process” to play itself out.

https://www.thenation.com/article/politics/little-secret-trump-johnson-election/

Mystal is a graduate of Harvard Law.

[Fiendish Thingy]

7. Here's a one pager summary for your convenience

https://protectdemocracy.org/work/understanding-the-electoral-count-reform-act-of-2022/

The ECRA stipulates all challenges must be adjudicated by the safe Harbor date.

If SCOTUS does what Mystal suggests, the country will be in flames before Christmas, and the markets will collapse.

Either that, or the governors will move ahead with signing the certificates of Ascertainment according to the timeline established by law, despite any ruling from the court (who and what army will stop them), at which point SCOTUS will see their authority evaporate. They will have no further role in the process once the certificates are transmitted, as it then becomes an internal congressional process.

We shall see if the MAGA majority on the court wish to engage in a game of brinkmanship, or if they will follow the law.

Aside from Clarence, this court has no personal loyalty to Trump, so I think it’s more likely they will follow the law as written, which follows the constitution and other existing law.

[lees1975]

10. I love the creativity of all of the convoluted twists and turns of devious ways Republicans are going to try to steal

the election. It shows exactly how serious the threat is, how little confidence we have in a corrupt and crooked Supreme Court, and in the fact that the GOP is no longer committed to American constitutional democracy.

Congress has nothing to do with the appointment of electors, or with conducting the electoral vote. That is done in the states, and the certification of the electoral votes is done in the states. Only Georgia and Nevada, among the battleground states, have Republicans in the state legislature who would be in charge of certification. You'd have to check and see what each state's laws say about who and how electoral votes are certified, but I think they're all the same as or similar to Arizona, where the deadlines are clear and where the Secretary of State certifies the popular vote first, which elects the electors, then certifies the electoral vote and sends the ballot to Congress for the Jan 6 ceremony. Legally, at that point, the electoral votes are certified, which completes the constitutional responsibility of the state to hold an election. What happens in the newly elected Congress is a ballot count. The Vice President conducts that. I don't see Johnson getting a two thirds vote to stop any votes from being counted, which is all he could do, especially not if Democrats win back control of the House. Hakeem Jeffries will be speaker on January 6th.

There could be federal court challenges to the vote count, and those might actually make it to the Supreme Court, though in 2020, without evidence, they went nowhere and we have the same 6 dumbasses on the bench as we did then.