updated, Sunday 6 December: Thanks to a Twitter reader, Burn, for pointing out resources and the likely outcome of unresolved objections to the Electoral College vote count by a joint session of Congress on 6 January. I’ll add the corrections in at the appropriate place in the post below.
It’s been nearly a month since Election Day and three and a half weeks since #BidenHarris have been the projected winner. It’s been a period of extreme stress and consternation — OK and a bit of comedy, a tragicomedy, really — as we’ve watched, the Ol’ Pussy Grabber and friends flail away at the election results in courts and re-counts. There has been lots of talk by Team Trump of voter and election fraud with the conspiracy necessary to change that many votes across so many jurisdictions growing by leaps and bounds. There’s been lots of mumbling about evidence and in true Trump tradition, it will be produced at some point in the vague future as he told Fox News on the phone just the other day, I said I’d like to file, to the lawyers, I’d like to file one nice big beautiful lawsuit talking about this and many other things with tremendous proof. Of course, that proof is never forthcoming in the court cases or on the news shows.
How ’bout a five star rating?
Nevertheless, it’s been touch and go for awhile. Many people were worried that he might could succeed in stealing the election. But state legislatures, state elections officials and state and federal judges have all withstood the pressure to steal the election for the Ol’ Pussy Grabber. Our democratic norms have held.
However, the threat to our democracy is not over. The Ol’ Pussy Grabber has two more opportunities to steal the election. They both could work, but one is more likely than the other.
The remainder of this post cribs liberally from the earlier funnier post, The Great Civics Lesson: How Trump will use the Electoral College to Steal the Election. You may want to check that post for background information like how the Electoral College works and the calendar of electoral events until now. We’ll start with the remainder of the calendar and then look at the vulnerabilities that are remaining.
The Election Calendar
These are the remaining important dates coming up:
- 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 of DECEMBER:
- The states have until this date to send their Certificates of Ascertainment — the state’s electors’ credentials — to the National Archives and Records Administration (NARA). That’s the state’s slate of electors.
- 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.
- 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.
- 3 JANUARY: The Certificate of the Vote is transferred to Congress. What’s important here is that this is the NEW Congress that was elected back in November and sworn in already. The Office of the Federal Register’s (OFR’s) legal staff meets with the Secretary of the Senate and the Clerk of the House to accomplish the dirty deed.
- 6 JANUARY: The NEW Congress meets in a joint session presided over by the CURRENT VP or Mother Pence to count the electoral votes.
- Objections to the vote can be made, but for an objection to be considered it has to be offered jointly by a member of the Senate and House. Once made, the House and Senate consider it separately in their own Chambers.
- 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 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.
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Points of Vulnerability
Let’s take a look at what options are left for the Ol’ Pussy Grabber and how likely they are to succeed.
The problem that the Ol’ Pussy Grabber faces is that he has lost by too much in too many states. To win the Electoral College, a candidate has to win 270 electoral college votes. #BidenHarris won 306 EC votes — in a special twist of karmic comeuppance that’s exactly what the Ol’ Pussy Grabber won in 2016; not enough is made of this fact in the popular media — which means that Trump needs 38 EC votes to take the win from #BidenHarris which is more than any single state can deliver.
He’s targeted Pennsylvania’s 20 votes, Michigan’s 16, Wisconsin’s 10, Georgia’s 16, Arizona’s 11, and Nevada’s 6. Some combination of those states should give him what he needs.
As predicted int Ye Olde Blogge and other places, he targeted specific precincts and counties to have the votes overturned and rejected. They’ve worked hard to drum up “evidence” of voter fraud using eyewitness affidavits which the courts have rejected resoundingly, especially in Pennsylvania. Even the vaunted Trump appointed judges have ruled against him.
He’s got one last gasp with the courts. He can appeal his latest loss to the Surpremes if they’ll take it. The case is really merit-less, so I doubt they take it, but who knows. SCOTUS decides which cases to take by a vote. The Justices who vote to take it have been wholly bought and paid for by the GOP.
So, if his court challenges to validity of the votes and the certifications of the of the vote have just about run their course, then what’s left for him to do? He thinks he’s being clever by saying things like, “Time will tell,” “If the Electoral College votes for him,” and “[Biden] has to prove all of his votes are legal.” Trump’s executive dysfunction causes him to blurt his plans ahead of time. You can match these statements up to the remaining tow vulnerabilities. All he’s really telling us is that he isn’t done.
If the Electoral College Votes for Him
There are a variety of points of vulnerability concerning the electoral college. Some of them are passing and very unlikely others are still to be faced and very possible.
Certifying the Vote
One strategy is to delay the certification of the vote by the states until the Supreme Court has to weigh in. The deadline of 14 December is very real and hard, but it also looks like the votes will be certified by all the the states or at least enough to give #BidenHarris 270 electoral college votes. They made a run at it, but it has failed.
Slates of Electors
Trump had tried to pressure the Michigan and Pennsylvania state legislatures into appointing competing slates of electors, but none seem likely to do so. This threat, too, seems to have passed.
The next thing that the Ol’ Pussy Grabber is likely to try is finding, read that buy, 38 faithless electors. Of course, Trump being a narcissist and all, he’s likely to want to beat Biden’s and his old Electoral College vote count, so he’ll go for more.
Likelihood of success: Pretty small.
First, electors are partisans, so it’ll take some convincing to get them to switch this time. However, 10 of the 19 faithless electors in the history of presidential elections refused to vote for Clinton in 2016. And, the Repubes did buy Justice Kennedy’s resignation from SCOTUS and pay off Boof-K’s debt, so they could very well spill enough coin to pick up 38 faithless electors.
Second, any substantial shift in the vote would be challenged in court. The behavior of electors is covered by state law, not federal.
- Thirty-two jurisdictions require their electors to vote for the popular vote winner. There are no penalties in nineteen of those jurisdictions for being a faithless elector, though.
- 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.
PREDICTION: Look for something to happen here. We may not find out about it until after the fact, though. Not likely to succeed.
[Biden] has to prove all of his votes are legal.
A joint session of Congress has to meet and count the Electoral College votes. Remember kids, if they can’t count the vote because of unresolved objections, the House meets to choose the president and the Senate, the vice president. The House votes by state delegation, one vote per state determined by its delegation. The Repubes still have the majority of delegates in 26 of the states. The Repubes will control the House for the purpose of selecting the president. And, Pence will preside over the senate where our best outcome is a 50-50 tie. He’ll be the tie breaker in selecting the vice president. This is why the down ballot races were so important this year and why the loss of House seats and not taking Senate seats was so devastating.
How likely is it that some jerk offs from the House and Senate get together to give each other handies to object to the electoral college? Pretty fucking likely. In fact, wasn’t Rand Paul tweeting about magic margins that shouldn’t change as caches of votes were counted from different precincts because neither voting method or geographic area should predict the lean of the vote.
We can start naming the usual suspects now: Nunes, Jordan, Gaetz, Gohmert in the House tag teaming Graham, Paul, Blackburn, Johnson in the Senate. Here’s a fun game: name your favorite pair of Repube Congressional fuck ups in the comments!
Once an objection is made, the voting stops with whatever state is being counted and the objection made to their vote. Let’s say Paul and Gaetz tag team Pennsylvania’s Electoral College vote as seems likely. The House and the Senate will retire to their chambers to argue about the objection. Apparently, it the argument is limited to two hours and each member gets five minutes to speak. or at least they did the last time all of this happened back in 2000. Each chamber gets to make their own rules about this stuff. Then, each chamber vote, each member getting one vote. If it goes along party lines, the House votes to allow the votes of Pennsylvania, the Senate does not. Then, nothing happens. The objection is not resolved. Nothing can happen until the objection is resolved. Nothing can happen. Eventually, 20 January roles around. A president and Vice President have not been named, so Nancy Pelosi or whoever the Speaker of the House is will be inaugurated. Interestingly, the house could elect Joe Biden Speaker, and if this route presents itself, allow him to be sworn in that way. He could appoint Harris as his VP, and the House could elect Nancy Pelosi Speaker.
If you want, you can watch the tedious hour-long video of this lawyer drone on about all kinds of irrelevant things and eventually get to the Constitution and the election of the president.
You can also check this report from the Congressional Research Service published on 15 November 2016 when we were all trying to figure out if there was a procedural way to stop Trump from becoming president.
LIKELIHOOD OF SUCCESS: Pretty small.
First, the Repubes have made it abundantly clear that they don’t give a tinker’s damn about democracy or any of our votes. We screwed up when we didn’t flip House seats and take the Senate.
And second, the courts have made it very clear that they do not like getting involved in procedural matters of other branches of government. This falls within the rule set out in the Constitution. I doubt we can rely on the courts to undo it should it be tried.
PREDICTION: I’m not entirely convinced that given a fumble or two by the Dems and some brazen daring do by the Repubes that this wouldn’t work, but it is no longer likely. Also, I fully expect nearly every Repube to bravely make a defiant floor speech decrying the sabotage of our election and the shameless theft by the Dems. There will be much posturing and grandstanding for the Ol’ Pussy Grabber, MAGAs, and the cameras. I can’t imagein that the Grahams, Johnsons, and Pauls of the Senate and Gaetzes, Jordans, and Gohmerts of the House could pass up the opportunity to make objections, but I think it all comes to naught like very other attempt to steal the election has.
This would be the time for the #Resistance to hit the streets in serious protest, though.
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