Updated on Thursday 1 October: The old title of “The Great Civics Lesson: How the Winner of the Presidential Election is Determined” to “The Great Civics Lesson: How Trump will use the Electoral College to Steal the Election.” The lesson, as always, is I’m an idiot. The post, obviously, is about how to use the Electoral College to steal the election.
There has been a lot of angst poured across the tables, floors, and hearts of America about the Ol’ Pussy Grabber grabbing our election by the pussy. Here we’ll explore the way we determine the winner of the presidential election — spoiler, it’s a complex process — and how the Ol’ Pussy Grabber could and just can’t steal the election. Unsurprisingly, it explains the reasons he’s approaching the election as he is like his behavior at the first presidential debate.
The Determination of the Winner of the Presidential Election
This portion of the Great Civics Lesson is based on The 2020 Presidential Election Provisions of the US Constitution and US Code by the National Archives and Records Administration. It’s an exciting document if you’re concerned about the future of the country, but it ain’t everybody’s cup o’ Joe Biden, so I’ve read it and will summarize it here. You should read it, too. If you do, let me know in the comments — Hey, there’s a fun and cool idea, hunh?
As most of us know at this point is that presidential elections are unique since it is based on a two-tiered voting mechanism. Tier one: the electorate — that’s you and me — vote for president and vice president at our precinct in our state. Tier two: the state legislature appoints a slate of electors who will meet and cast their vote for a candidate. This is where things get interesting.
The Electoral College
Both major parties put forward a slate of electors in the event that their candidate win the state, except for Nebraska and Maine. In 48 states, it is the winner of the popular vote of the state takes all of the electors from that state. In Nebraska and Maine, the electors are apportioned by House of Representative district. Each state gets an elector for each of its senators (that’s two) and one for each House district. DC gets three. So, as long as there are no controversies, the legislature simply rubber stamps the results of the state’s presidential election and the electors cast their vote for the candidate that won the state’s popular vote.
The Election Calendar
We’ll explain the process by going through the dates that things happen by according to the Office of the Federal Register (OFR), which is part of NARA and helps the states navigate the process:
- JUNE to OCTOBER 2020: I bet you didn’t know that the presidential election started in June or at least the preparations did. The OFR prepares the documents that they need to deliver to the governors of the fifty states and mayor of DC. These include instructions concerning preparing and submitting their elector’s credentials (Certificates of Ascertainment) and the electoral votes (Certificates of Vote). And, they establish a list of contacts in each state’s governor’s and secretary’s of state offices as well as their equivalent in DC.
- 3 NOVEMBER: As established in the Constitution, Election Day is the first Tuesday after the first Monday in November. It will never be 1 November. Go figure. It has something to do with farming. The states are given broad latitude on how they conduct their vote. This is why we have early voting and vote by mail and various laws about ballots being either postmarked by 3 November or received by 3 November.
- MID-NOVEMBER to 14 DECEMBER or the FIRST MONDAY after the SECOND WEDNESDAY of DECEMBER: I know, it’s an ass scratcher for me, too. It ensures that it will be done by the middle of December. I guess in time for Christmas? Who knows, but during this time, the Certificates of Ascertainment — the state’s electors’ credentials — are sent to NARA. The certificate includes the names of the electors and the votes for each candidate. It gives “plenty” of time for voting discrepancies to be worked out at least in the pre W v. Gore days.
- 8 DECEMBER or SIX DAYS before the FIRST MONDAY after the SECOND WEDNESDAY in DECEMBER or SAFE HARBOR DAY: This is the date set for states to resolve any controversies or contests as to the appointment of electors.
- 14 DECEMBER or the FIRST MONDAY after the SECOND WEDNESDAY in DECEMBER: This is the date that the Electoral College actually votes for the president and vice president, and, then, a Certificate of the Vote is sent to NARA. It should be noted that neither the Constitution or federal law requires that the electors vote for the popular vote winner in their state. You may recall from election 2016 that some of us were hoping that the Electoral College would elect Clinton. This is why. However, in 2020, the Supremes decided that states could place restrictions on how their electors vote. Currently, 16 of the 51 jurisdictions — that’s 50 states plus DC — have passed the National Popular Vote Interstate Compact that will require the state to award its slate of electors to the winner of the national vote, not the winner of the state vote. We may eventually bypass the Electoral College if enough states pass the compact. The Certificates of Votes and Certificates of Ascertainment are passed on to the President of the Senate (the current VP), the Archivist at OFR, the Secretary of State for each state, and the Chief Justice for the Federal District Court that each state is in. You know, just in case any of them are lost in the mail — thanks DeJoy — or misfiled — thanks Mother Pence.
- 23 DECEMBER or NO LATER THAN NINE DAYS after the MEETING of the ELECTORS: This date is the absolute deadline for submitting the receipt of electoral votes at NARA or you’re in big trouble, mister, and the Archivist will come looking! You can see why the Supremes were worried and hastily concluded W v. Gore the way they did. Who wants the Archivist coming down on them?
- 3 JANUARY: The Certificate of the Vote is transferred to Congress. It is a little disappointing that it isn’t the first Thursday occurring after the second Monday but before the first Friday of the month, but we’ll live, even though, personally, I expected better from those writing the Constitution and federal statutes. What’s important here is that this is the NEW Congress that was elected back in November and sworn in already. The OFR’s legal staff meets with the Secretary of the Senate and the Clerk of the House to accomplish the dirty deed.
- 6 JANUARY: Again, no finagling of the days, get over it; I did. Okay, I didn’t. Damn, that is disappointing. Perhaps the new Dem Congress can fix that, you know? Now, this is where things start to get interesting, again:
- A joint session of Congress meets (presided over by the President of the Senate, the CURRENT VP or Mother Pence) to count the electoral votes. For an objection to be considered it has to be offered jointly by a member of the Senate and House. If an objection is made, the House and Senate take their toys and go back to their respective chambers to consider it.
- For the president and vice president to be elected, the candidates must receive a majority of the Electoral College, currently standing at 270 of the possible 538 Electoral College votes. If no candidates receive a majority of the Electoral College vote, then the House chooses the president and the Senate, the vice president.
- If for some reason, a state submits like two competing sets of electoral votes to Congress, then the two Houses of Congress must act together to either accept or reject them. If they cannot, then the electors that were certified by the governor of the state is the one counted in Congress.
- 20 JANUARY at NOON: The newly minted president and vice president are inaugurated.
How Would You Do It? Using the Electoral College to Steal the Election
And, that fellow citizens is how it is done. It is an overly long and complex process that no longer suits our times. Let’s have a look at how the Ol’ Pussy Grabber might could exploit it to steal the election.
- FAITHLESS ELECTORS: Don’t put it past the Ol’ Pussy Grabber and the Repubes to try and buy off a few electors, and why not? They bought Justice Kennedy’s resignation from SCOTUS — allegedly. However, as The Brennan Center for Justice tells us the following fun facts about binding the electoral college vote of their state’s electors:
- thirty-two jurisdictions require their electors to vote for the popular vote winner. Please note, states won’t be binding their electors to the national vote under the Compact until 270 Electoral College votes have been committed, we are currently at 196.
- There are no penalties in nineteen of those jurisdictions for being a faithless elector.
- Eleven states nullify the vote of a faithless elector and replace the elector with one who will vote right.
- And four jurisdictions can prosecute or fine a faithless elector.
- Fun fact: there have only been 19 faithless electors, 10 of them in the 2016 election with several electors refusing to vote for Clinton! Whoa!
- Conclusion: This could happen. Look for it.
- STATE LEGISLATURES: Many have openly worried that state legislatures can select a slate of electors that favors their preferred candidate and not the candidate winning the popular vote.
- The concern stems from 3 USC 2 which states: “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.”
- The legislature could just wait until 8 December to appoint their electors and then slip in a slate of Repube’s in those states with a Repube legislator.
- Any delay or claim of failure to make a choice would be challenged in court by the states popular vote winner, Biden-Harris in this scenario. God, I hope so, but given their answers to questions concerning whether they have an army of lawyers to go in various states leaves me deeply worried.
- After Election Day (the first Tuesday after the second Monday of November, this year 3 November), the state legislatures are bound by federal law to appoint electors on Election Day. This appointment is defined as the electorate voting for the electors or for the candidates directly and the electors being awarded to the popular vote winner.
- The Constitution states that electors are appointed in the manner in which the states choose, i.e. by passing a law. Any deviation from the law governing the appointment of the electors would require a new law being enacted, meaning a governor would have to sign it. In states with a Repube legislature and a Dem governor, this ain’t going to happen. Of course, vetoes can be overridden.
- In W v. Gore (2000), the Supremes decided, “When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental,” meaning their is legal precedence for not allowing legislatures to dictate the appointment of electors after Election Day. W v. Gore stopped the recount and the original count was accepted and certified as accurate.
- Conclusion: Any attempt to monkey with the slate of electors AFTER Election Day would be messy and end up in court almost immediately. Less likely, but don’t put it past them. Could the Ol’ Pussy Grabber attempt to get a slate of electors appointed BEFORE Election Day? Maybe, but that seems even more farfetched, but then again in the summer of 2016 Russian interference in the election seemed farfetched. So, never say never.
- DELAYING THE VOTE COUNT: This is the trick that won over the Supremes in W v Gore in 2000. Because there are hard, if not peculiarly worded, deadlines codified into law, any disputes over the counting of votes needs to be resolved in a timely manner. Delaying the count past 8 December could trigger the dreaded, we take what we got and leave the rest of the ballots on the floor decision that was the crappy decision in W v Gore.
- By the time the appeal of the lower court decisions on the recount reached SCOTUS, the decision would be rendered on 12 December the Safe Harbor Day or the day that all controversies needed be resolved by in order for the electors to be seated. In 2020, that day is 8 December.
- John Roberts’ gig before becoming Chief Supreme Court Justice was leading (along with John “Torture Memo” Yoo) W’s legal team in W v Gore. Wonder how he’ll vote when the Ol’ Pussy Grabber’s inevitable court challenge to any prolonged count comes up?
- Our very own Boof-K was on W’s legal team trying to stop the count. Wonder how he will vote if the Ol’ Pussy Grabber is ahead and trying to stop the count of any more mail-in votes? We already know that he displays Life Course Persistent Antisocial Behavior and someone paid off all his debt, so making other dubious ethical decisions is not a stretch for him.
- Amy Coat-hanger Barrett also worked on Bush’s legal team in Bush v Gore, so there’s that. And, given the Ol’ Pussy Grabber’s penchant for demanding personal loyalty over loyalty to the Constitution, you wanna bet promises weren’t made?
- Clarence “Just Give the Money to Jenny” Thomas is the only surviving Justice from the Bush v Gore days, so there is no doubt how he’ll vote if it comes down to it. Just check Jenny Thomas’ bank account for unusual deposits — allegedly.
- Conclusion: Ding ding ding ding! Hold your calls, we’ve got a winner! Of course, this has been the thing that the Ol’ Pussy Grabber has been telling us that he’s going to do for months now and the reason he’s given for getting old Coat-Hanger onto SCOTUS. I mean what’s the point of being the very model of a modern stable genius if you no one knows you’ve got an evil super genius plan to hatch?
Signs of Life
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