UPDATED 14 DECEMBER: OKAY! I think we finally have the definitive answer here. Over on Musing about law, books, and politics, Teri Kanefield has won a cookie. Remember the situation: It is 6 January and a joint session of Congress is meeting to count the electoral vote. As the vote is counted, if a senator and representative together object to an elector or electors, then both houses of Congress adjourn and deliberate the objection. There are three possible outcomes: (1) Both houses accept the objection and reject the elector’s or electors’ votes, and they are not counted. (2) Both houses reject the objection and accept the elector’s or electors’ votes, and the count proceeds. Or (3) one house rejects the objection and the other accepts the objection. What happens in that situation. Well, Ms Kanefield tells us that in the absence of a rejection, the votes are accepted. It is that simple.
“An objection to a state’s electoral vote must be approved by both houses in order for any contested votes to be excluded.” (For additional information, see CRS Report RL 32717)Teri Kanefield, What To Expect on January 6th on Musing about law, books, and politics
So, there is your definitive answer. I feel like I’ve run a marathon. Understanding how we elect a president should not be this difficult. It should be much more straightforward. Maybe one day it will be.
UPDATED 11 DECEMBER: On The Rachel Maddow Show on MSNBC, Rep. Jamie Raskin (D-Md) suggested that the process at the Joint Session of Congress to count the electoral vote on 6 January would go like this: They would proceed alphabetically through the states reading the number of votes into the record asking if there are any objections to the state’s vote. Republicans have been working on making objections with several representatives voicing interest and Sen. Ron Johnson saying he would be also. They are going to object to the votes from the battleground states: Wisconsin, Michigan, Pennsylvania, and Georgia. The session then divides into its separate chambers to take up the objections and vote on their resolution. If one house declines (the House because Dems hold the majority) and the other does not (the Senate because it maybe tied at best), then they go to the governor’s certificate of ascertainment of that vote. Even if Gov. Kemp caves and does not stand by his certificate, #BidenHarris will still have enough electoral votes to be president.
Man, what a long winding road to get through this hedge-maze of a process. No wonder we all expect to find a minotour at the center.
The Great Civics Lesson continues! Regular readers will realize that Election 2020 is teaching us each and every tedious step of how we elect a president. We’ve had to learn the meaning of each event and how it leaves the election open to being stolen. In this case, though, Safe Harbor Day leaves the election less vulnerable to being stolen. Wow, imagine that.
the shallow dive: So you can bounce within whatever few seconds it takes to realize that coming to this post was a huge mistake and needs to be fled from immediately. If a state certifies it’s electoral college vote by Safe Harbor Day, then no objection can be made to the vote during the Joint Session of Congress in January to count the electoral votes. The election of #BidenHarris cannot be stolen. It is locked in after today.
The Snarky Dive: My concern has long been that the Repubes in Congress will object to the electoral college votes from enough states to deny #BidenHarris the presidency and vice presidency, and throw the election to Congress to resolve. That concern turns out to be less concerning since it appears that if the Dems don’t snatch defeat from the jaws of victory once again, the Dems can prevent it from happening. But, of course, it sounds like there can be no objections so the Dems can’t even screw this one up, can they? Right? They can’t, right? They can’t. Oh, god, they can, can’t they. They’re the Dems, they’ll find a way to screw it up. Color me fucivorous, I’m sure they will now.
With this little nugget of information, it becomes much more difficult to steal the election through Congress. I guess this explains Texas Secretary of State, Ken Paxton’s, court case against swing states seeking to overturn their elections. It really is the only way they’re going to steal the election. This is the last ditch effort to prevent certification by Safe Harbor Day so that (a) the Supremes can steal the election for the Ol’ Pussy Grabber and friends or (b) the Repube Congress has a chance to steal the election for the Ol’ Pussy Grabber.
Given that the Supremes have declined to accept Rep. Mike Kelly’s case challenging the results of Pennsylvania’s election, they aren’t likely to accept this one, either.
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The History of Safe Harbor Day
The Deep Dive: Way back in 1887 after the debacle of the Hayes-Tilden presidential election and the “cOmPrOmIsE” that delivered the South to white supremacists for the next 133 years, Congress did something reasonable — WHAAAAT? Like that’s even possible — and passed the Electoral Vote Act giving some guidance on how to resolve competing slates of electors. You remember the Hays-Tilden election, right? It’s the one where three states (Louisiana, South Carolina, and Florida) all submitted dueling slates of electors and conflicting electoral votes and a fourth state, Oregon submitted a slate with one elector duplicated. Each of the slates of electors and both of the duplicated electors in Oregon voted for president during the electoral college vote in their states and submitted their competing votes to the Congress to be counted.
There were 20 total electoral votes coming from these four states. Without those votes, neither Hayes nor Tilden won. Tilden, the Democratic candidate, was close with 184 votes, one shy of the majority needed, but Hayes, the Republican, was only 20 shy of the magic number, 185.
Parallels between 1887 and 2020
The funny thing is that 1886 and 1887 parallel our own time. Reconstruction was still raging and the Democratic party dominated the Deep South, so the politics was highly partisan and divided by clear regions. The Democrats had the majority in the House and the Republicans, the Senate. There was a Constitutional crisis — a situation that the law and the Constitution does not address — and Congress was under intense pressure to solve it. Okay, that’s where the parallel stops. Congress is not under intense pressure to do anything and Mitch McConnell don’t do nothin’ ‘cept approve judges any way.
The Constitution stated the Congress would count the electoral vote, but was unclear who adjudicated the veracity of the electoral vote. Previously, the only thing governing Congress and the electoral vote was the Twenty-second Joint Rule enacted in 1865 by the Republican Congress stating that Congress had “total power over the electoral vote” and allowing questions about the electoral vote to be resolved by consensus of both houses of Congress. What was left unprovided for was whether Congress challenge the authenticity of the vote or how to proceed if both houses couldn’t agree.
The Solution to the Ugly Partisan Mess of Electoral College Politics
The Electoral Commission and the Compromise of 1887
Congress resolved this ugly partisan event with an ad hoc commission called the Electoral Commission consisting of members of Congress from both parties and some Supreme Court Justices. While the commission gave the election to Hayes along a party-line vote, it was arrived at using a really fucked up compromise. In exchange for “gracefully” losing a presidency, the Democrats would get an end to Reconstruction, and, thus, the Jim Crow era was born.
The Electoral Vote Act
After the election, though, members of both parties came together to produce the Electoral Vote Act, which gave semi-clear guidance on how Congress would resolve future disputes over the electoral vote. It is semi-clear because some of it is deliberately obfuscated. What is clear is that any state that certifies its election by Safe Harbor Day, or SIX DAYS before the FIRST MONDAY after the SECOND WEDNESDAY in DECEMBER, which is the day designated for the Electoral College to meet in the capitols of each state and cast their votes for president, Congress has to count their votes without objection.
Every state except for Wisconsin has certified their votes. Wisconsin was the only state where the Trump legal juggernaut known as the Kraken succeeded in blocking the certification of the vote. #BidenHarris have over 270 electoral votes certified for them. Congress has no choice but to count them and VP Mike Pence will have to declare that #BidenHarris have won the election and will be the next president and vice president of the United States.
They can try, and they will, to cause all kinds of trouble, but it will not succeed. Texas Secretary of State, Ken Paxton’s, case against the four battleground states shows how desperate it has become for Trump and friends. They know that this is the last hurrah. After today, it is a done deal.
The Difficulty and Density of the Process of Electing a President
On a personal note. It was not easy to find this information. Okay, it was easy to find the Safe Harbor Day information today because very news organization and its pet monkey was reporting it today. But, back when I started this odyssey of how the Ol’ Pussy Grabber might could steal the election, it was opaque as the Mekong River. Google searches didn’t work too good at locating the pertinent information. If I had six weeks and hours of daily reading time, I coulda done it. That’s why lawyers take four years to get degrees. It takes time to sift through all of the different rules and sort all of this out. Once you get the right scent, though, the trail becomes easier to follow.
The problem with making it this difficult to understand how we elect a president is that it makes it difficult to have a fully informed electorate that understands how our government works. Frankly, it is discouraging. If I weren’t unemployed right now, I couldn’t”ve even started. The system really does work against the average citizen and when you layer on top of that the ruthless cynical exploitation of natural human psychological tendencies, it becomes damn near impossible for the average citizen to do anything other than to follow political leaders.
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