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The Nightmare Scenario: Politics and the Constitution collide ^ | 10/27/04 | Ubu

Posted on 10/28/2004 6:21:57 AM PDT by ubu

November 2: The election is close. Across Ohio, Florida, Pennesylvania and perhaps other states, the margin of victory is slim; perhaps o­nly 1-2,000 votes each. Both sides claim victory. Both sides can show evidence of voter fraud where they lost. Lawsuits start flying, and recounts begin. (Start flying? They are already!) The rules for counting votes change daily according to which judicial authority is consulted. The election becomes a toss up, Florida 2000 times ten, or a hundred.

Public backlash begins against both sides over the election being decided in the courts again...what happens? What can happen?

If you look at the Constitution, the Amendments, and the statutory law, the final resolution of the conflict, the "go to hell plan" for the Republicans may be to override the courts through the legislative branch. But how can Congress determine who is president? And what are the pitfalls? Well, the answers go back, first, into the constitution and statutory law, and second, into our history.

The Electoral College was, by some accounts, the single most contentious issue of the constitutional convention. The method of electing the president was changed no less than four times during the course of the convention, and twice, popular vote was rejected as a method. In the end, the constitution provided that each state would select a slate of electors who would cast ballots for president, and the governor of that state would certify the list of of electors, sending it to the President of the Senate (i.e: the current vice-president), who would open it in the presence of both houses.

It didn't work quite as expected. In 1800, Thomas Jefferson and Arron Burr tied in the number of electoral votes for President, throwing the election into the House.

(Excerpt) Read more at ...

TOPICS: Constitution/Conservatism; Crime/Corruption; Government; News/Current Events; Politics/Elections
KEYWORDS: 12thamendment; 1876; 20thamendment; congress; constitution; democrat; electoralcollege; governor; house; republican; senate
This might qualify as a vanity post since I'm posting a link to my own work; if so, mods please re-label as such. The other day, in a thread about what would happen if the Pres-elect and VP-elect both died before inauguration, I posted an early version of this article to answer part of the question. Since it got a favorable reponse, I thought some people might be interested in the full article. The first half is kind of dry, but thats Constitutional law for you. (And to be clear, I am not a lawyer.) Once we hit 1876... well, it's not lacking in viewpoint.
1 posted on 10/28/2004 6:21:57 AM PDT by ubu
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To: ubu

What's the problem? The Constitution has a reasonable, viable backup plan if the Electoral College produces a tie or is otherwise unacceptable.

2 posted on 10/28/2004 6:27:52 AM PDT by ctdonath2
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To: ctdonath2

The problem is that in this Age of the Spoiled Brat, no one on any side is satisfied with the 'official results' until he/she wins. And since not everyone can win, we can expect chaos no matter what the result.

3 posted on 10/28/2004 6:40:50 AM PDT by Alien Gunfighter (Draw!)
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To: ctdonath2
Well, if you read the article, you'd see. The election of 1876 is quite instructive. Don't judge the entire article by the excerpt; the first third is constitutional law because the groundwork has to be laid. The second third or more is about 1876, and the final part turns to the long-term consequences of a repeat. Not the next election; the next century
4 posted on 10/28/2004 6:52:45 AM PDT by ubu (puncturer of balloons--usually my own....)
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To: ubu

The only collision will be the one scammed by the dems much as the accident/insurance scam was perpetuated by those who would ram your car intentionally.

The Constitution trumps politics every damned time. It is up to us to spread the word...That is the way our Founding Fathers framed it.

Besides, I think it is something put out there to add more excitement to an overloaded election.

(That or a diversion. Talk about another Constitutional Crisis & there is no talk about the weapons in Iraq and Kerry's lies.)

5 posted on 10/28/2004 6:58:00 AM PDT by Protect the Bill of Rights (Truth is not Partisan)
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To: ubu

The link took me to the same excerpt.

Sure I could have kept digging, but the excerpt didn't really indicate where the rest of the article was going, and seemed more focused on complaints than solutions.

Remember a rule of public speaking: tell 'em what you're gonna tell 'em, tell 'em, then tell 'em what you told 'em.

In a deluge of articles like FreeRepublic, be sure to give people a reason to read anything more than a few paragraphs.

6 posted on 10/28/2004 7:09:01 AM PDT by ctdonath2
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To: ctdonath2

Sigh. Well, it's traditional to excerpt the FIRST part of the story, and FR's 300 word limit made it somewhat difficult to grab much.

I don't know what you mean by "complaints" because I'm not complaining about anything, I'm setting up the scenario in which rarely used parts of the constitution come into play: specifically Article II, clause 2, the 12th Amendment and relevant statutes.

I think the problem is, I am asking non-rhetorical questions which I later provide the answers to. I'm carefully leading the reader through the major questions and their answers. Readers unfamiliar with my style may not understand that it's a mental form of "point-counterpoint/Q&A" that I often do.

But I think you have a point: An unknown writer needs to engage his audience quicker. If that article had "Steven den Beste" or "Bill Whittle" as the byline, most would have waded through three times as much introduction, because they know it's going somewhere good.

Disappointing, considering the research I did. Live and learn, one more ballon punctured.

7 posted on 10/28/2004 10:11:01 AM PDT by ubu (puncturer of balloons--usually my own....)
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To: ctdonath2

Ok, try:

"But that assumes that the Democrats are into suicide (well, I wouldn't rule it out at this point...) so let's look at other scenarios. What if they don't actually prevent a quorum, but threaten to? Or keep everythign tied up in the courts for months? What is the end goal of all this? If the Dems can take the EC out of the loop, then the House has to vote under the o­ne state/one vote system to elect the president, and that's much trickier. Presumably, there would be the "mother of all log-rolling sessions" to determine who is president. Is this scenario unprecedented? Has any of this ever happend? The answers are a surprising "No" and "Almost excatly, and a whole lot worse, over a century ago." We are still dealing with the legacy of that crisis today.

Fortunately, at the time of that constitutional crisis, the defining war of the era and proximate cause of the issue had been over for ten years. Whether or not we can afford such a crisis at this juncture is an exercise in deduction for the reader, but if you fail to consider how that crisis played out in an age of more civilized political discourse, don't blame me if our worst nightmares come true in both the short and long term."

8 posted on 10/28/2004 10:26:32 AM PDT by ubu (puncturer of balloons--usually my own....)
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To: ubu

Actually, it's "traditional" to post the whole article, unless FR has been legally notified to not do so. (Though I do understand the desire to bring someone to the main site rather than read a copy.)

Excerpts are fine, though the excerpted part should be selected to (a) make the overall point, and (b) entice the reader to read further.

I did click to the source, but then only found the same exerpt there. An itty bitty little link to the rest of the article didn't encourage me further. As I wasn't intending to spend much time on the thread, two clicks was too far without more "grab".

You're competing with an awful lot of content flowing rapidly thru the main FR "latest posts" page. Chin up, learn, keep going! I've done the same, and have had my own content posts sometimes evaporate unnoticed, and sometimes get so much attention it melted down my ISP's ISP.

9 posted on 10/28/2004 11:02:56 AM PDT by ctdonath2
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To: ubu

That grabbed me.

I have no problem with an EC tie or disruption ending up in the House.
I DO have a problem, now that you mention it, with House members being uncooperative and abusing the case to induce a Constitutional crisis.

10 posted on 10/28/2004 11:05:26 AM PDT by ctdonath2
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To: ctdonath2

Thank you. I guess I was being too cute by half, not wanting to let on where I was going.

As mentioned in the updates, Eugene Volokh was kind enough to respond to my questions regarding how the votes would be determined. Unfortunately, he was simply of the opinion that tied delegations would abstain, and uneven delegations would go with whomever had the majority. That was my first thought, but if you're going to spike the whole damn process, why do it halfway? That's not mandated anywhere, so it's wide open for litigation or other games.

IMHO, the Republican party must be prepared to be ruthless in the use of Congressional power over the Electoral Commission, because it is the only "guaranteed win" if the Democrats try to overthrow the election in the courts.

11 posted on 10/28/2004 2:38:12 PM PDT by ubu (puncturer of balloons--usually my own....)
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To: ctdonath2


Someone pointed out to me everything I was trying to say has already been said, much clearer, and with better research.... almost THREE MONTHS ago!

Four days down the damn drain.

12 posted on 10/28/2004 5:33:40 PM PDT by ubu (puncturer of balloons--usually my own....)
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To: ubu

...but now YOU understand the subject much better. Not down the drain.

13 posted on 10/28/2004 7:23:15 PM PDT by ctdonath2
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To: ctdonath2
Well, true. And as someone else pointed out to me, everyone who followed my second link is also better educated. Nonetheless, I decided this morning to completely rewrite the post and eliminate most of the dry constitutional talk at the beginning. If nothing else, it's been an exercise in learning how to write briefly and clearly.

Nightmare Scenario, the remake

Wondering if it would be an abuse to make a new thread... probably nobody reading this one any more.
14 posted on 10/29/2004 8:41:28 AM PDT by ubu (puncturer of balloons--usually my own....)
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