Posted on 11/04/2020 5:17:39 AM PST by Liz
It’s well known that the Democrats have announced their plan to delay the counting of votes in the November presidential election as long as possible. Some think they want it to go to the US Supreme Court, where John Roberts might again abandon conservatives and stick it to Donald Trump.
Remember, despite the polls, increasingly the murmurs coming from the Democrats are that they will drag the vote-counting out until 2021 and/or put the matter into the courts.
Can they do this? Is it possible? The fact is, almost no one knows.
In the 1876 presidential election, the electoral counts from three states were in, creating a stalemate that took weeks to resolve.
One less-than-reliable answer comes from the less-than-reliable Atlantic, which cited the 1887 Electoral Count Act adopted in the wake of the 1876 election between Rutherford B. Hayes and Samuel Tilden. Easily, this was the closest election in American history, requiring a joint commission of Congress to evaluate contested electoral votes from Louisiana, Florida, and South Carolina—all of which apparently favored the Democrat Samuel Tilden. Each state, however, had claims of vote fraud and threats of violence against Republicans (especially the freedmen who voted Republican).
South Carolina, for example, saw 101% of all eligible voters vote, auguring the famous 1960 election in Chicago where the dead voted. (It’s worth noting that the loser, Tilden, won the popular vote with a whopping 57% to Hayes’s 42%).
The Electoral Count Act requires that electors be chosen for the Electoral College no later than 41 days after the national election. In this case, that date would be December 14.
A reading of the language of the act seems to say that whoever is ahead on December 14 wins, period. But what is meant by “ahead?” A US Congressman tells me that the requirement is fixed in stone: someone has to get to 270, but National Review’s Andrew McCarthy disagrees.
The law itself seems to say just the opposite: “The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed.” What is the “whole number of Electors appointed?” Does that mean “appointed” by the states that have submitted elector slates or appointed by the de facto total number of electors available? McCarthy says that the president must have a majority of those submitted, not 270.
In the U.S. Civil War, we had exactly this situation. Remember, Lincoln defined the war as a “rebellion,” meaning the Southern states never left the Union. But in practical terms, they had.
So what happened with their electors in 1864? There were none submitted. Yet the election went forward with Lincoln winning because he won the majority of the electors submitted.
Using the example that the Atlantic chose, Pennsylvania, it is possible that the presidential election could come down to Pennsylvania and that its votes can’t be counted by Dec. 14.
Does the state just lose its votes? Some scholars say yes. National Review’s Andrew McCarthy argued “the process is controlled by Congress under longstanding statutory law (found in Chapter 1 of Title 3, U.S. Code).
In a nutshell, all state disputes, if any, over election results must be resolved by December 8.” Let’s call that the certification date. That is, a state is required to certify its slate of electors, which will determine who won the state, by December 8. Then, on December 14 the electors meet in their states and cast their votes. Note: nowhere is the state’s governor involved in this. While a Secretary of State has to provide the certification on December 8, the governor has no role in the election process.
For example, 3 U.S. Code § 2. “Failure to Make Choice on Prescribed Day,” says “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.” (By the way, Pennsylvania, Michigan, and Wisconsin all have Republican legislatures).
Again, the governor is irrelevant. However, the chief executive of the state is required to transmit the results to the U.S. Archivist. What happens if no certificates of electors are transmitted? This is the “monkey in the wrench” as John McClain said in Die Hard.
Other then a fine for the person appointed by the state to deliver the certificate of electors’ votes to the President of the Senate who fails to deliver such a slate ($1,000) there is no state penalty for failure to participate in the election. (In 3 U.S. Code § 12., 13, 14)
Indeed, this is the biggest problem in the new US Code relating to the elections, as nothing is said about what happens to a state that fails to deliver its electors. In 3 US Code § 12 and 13, when no certified vote from any state has been received by the Senate or the archivist, they can “request” the secretary of state of the state in question to send up the certificate “lodged with him by the electors of such state.” Wait! What if there are no electors because the votes are “still being counted?” The Code doesn’t specify what comes next, although oddly it allows a district judge “in whose custody one certificate of votes from that state has been lodged” to transmit the votes.
Again, however, no one ever asked the question: “What if a state does not want its votes counted?” Electoral votes that are certified in the state are then transmitted to Congress, a process that is supposed to be completed by December 23. On January 6 at 1 p.m., both houses of Congress convene to count the votes. If no president has been chosen by that time, the House of Representatives is to choose from between the top two elector recipients. Right here the doomsayers scream “See! I knew Pelosi would steal it!” Well, no. The House is to vote—not by member (i.e., 435)—but by delegation. Republicans in the current House control 26, Democrats 23, and one is split.
This then would elect Donald Trump as President. (The Senate then decides the vice president, and here Pence would be the selection). “Wait! What if it is the next House?”
There is nothing whatsoever to suggest that a single delegation could flip to the Democrats, let alone two and quite the opposite likelihood that the Republicans will expand their seats in the House—though I don’t know the delegations well enough to determine if another could flip to the GOP.
So what’s the verdict?
It appears a majority of whichever electors are certified on December 14 is the winner.
If states hold out, for any reason, they can be pressured to conform, but there is no penalty under law.
Apparently, however, they would just lose their electoral votes. (Even the most goofball radical Democrat governor would think twice about ceding his state’s place in a presidential election—there is too much precedent set there.) And, remember, legislatures have the final call on all matters related to the electors. The state legislatures can simply say “Time’s up” and force the Secretary of State to certify, probably even over the opposition of a governor. Of course, each of these steps likely would go to court.
The House would vote for Trump anyway.
Finally, any court tinkering with any of this would surely know that the only solution would be a full-blown re-writing of all U.S. election law. Just as the court did in Bush v. Gore, they will quickly conclude this is way beyond the abilities of any—and probably all—the courts in the nation.
In short, if Trump wins election night, he will likely win on December 14.
=====================================================
Larry Schweikart is the co-author with Michael Allen of the New York Times #1 bestseller A Patriot’s History of the United States, author of Reagan: the American President, and founder of the Wild World of History, a history curriculum website for homeschoolers and other educators with a US and World history curriculum that includes teacher guides, student workbooks, tests, images/graphs, and a video lesson accompanying every written lesson (www.wildworldofhistory.com).
We do the politically incorrect thing to do, which is make a political war.
Enough of letting the democrats be the only ones allowed to make war in earnest, politically incorrectly so to speak.
Real election battles is political and war its extension.
Democrats are morons but they got us by this one testicle every freaking time and we let them.
We will get no respect otherwise
None of this is going to matter. Biden will be ahead by noon today and he will declare victory. The media will gladly endorse it and the courts will do nothing. I don’t mean to be a downer, but they loterally stole this right in front of our eyes and not a damn thing will be done about it.
The old election results and marathon thread is gone now. Somebody please start a new election results thread so we can keep up with what is happening in the remaining states.
STROLL DOWN MEMORY LANE: The USSC ruled in the Bush/Gore fiasco that it was a violation of the “one man, one vote”
to only partially count and SINCE they couldn't count the whole state of Florida, Gore's partial recount was invalid.
The USSC ordered the count to be stopped.
Seemed more like the USSC's acknowledgement of Democrats' proclivities
to count, recount, then count again, till they had the necessary votes to win.
BTW, when the USSC stepped in ......it was due to brilliant legal moves by Bush's lawyer, former Secy of State James Baker.
In his book about losing the election, Gore related that whenever his lawyers got to court,
Bush's lawyers had already been there.....always a a step ahead of them.
I heard this morning that the SC has already ruled that an elector has to vote with the winner of their state and cannot break that pledge.
I think Trump should appoint a Special Prosecutor immediately and say he cannot stand by and let Biden become president without his corrupt dealings with Ukraine, China, Russia, etc. being investigated - especially since the media and FBI has covered up his corruption.
Well, Pelosi guaranteed that Joe would be inaugurated in January, even if Trump was named the victor last night. Their fraud game has been overwhelming.
The old election results and marathon thread is gone now.
*************
Where did it go? I suspect it has basically lost attention.
You are able to start a new one, no one is stopping you.
We hold rallies on our own for justice and freedom. The Left will show up, but we need to outnumber them at EVERY rally. Wear the DAMN masks, at this point they will hide our identities.
The deep state wins! The trump American voters lose. Question: will you sit back down and behave yourself?
“None of this is going to matter. Biden will be ahead by noon today and he will declare victory. The media will gladly endorse it and the courts will do nothing. I don’t mean to be a downer, but they loterally stole this right in front of our eyes and not a damn thing will be done about it.”
Realism, and I agree. We all said it, if it’s close enough to steal, they will steal it.
Say hello to president Harris.
Adding: regardless of who wins
I thought it was such an important thread that only the Grand Poobahs of FR could start one.
“they loterally stole this right in front of our eyes”
Yep and they have been telling us for weeks how this would all play out.
Ain’t gonna happen.
Call President Trump: Comments: 202-456-1111 Switchboard: 202-456-1414
WH EMAIL CONTACT PAGE https://www.whitehouse.gov/contact/
You see it like I do.
Can’t win w/o having the minimum 270 EVs...Trump has legal folks working overtime as we type these.
The yuan is tanking and that’s proof of 2 things:
- China owns Biden.
- China knows Trump is going to come out on top - as do those who trade with China.
Career criminal Joe Biden has pulled off his greatest heist, with the help of the demonic left. Our great president said that he’d accept a free and fair election, but this was Stalinesque.
election marathon thread is right here, https://freerepublic.com/focus/f-news/3901227/posts
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.