Those worried about Amendment 12: Laurence Tribe discusses why Trump can't win via throw to Congess

[hlthe2b]

Link to tweet

No, Republicans Cannot Throw the Presidential Election into the House so that Trump Wins
30 Sep 2020
Neil H. Buchanan, Michael C. Dorf and Laurence Tribe

https://verdict.justia.com/2020/09/30/no-republicans-cannot-throw-the-presidential-election-into-the-house-so-that-trump-wins

In a stunning public admission of a plan to distort our democracy, Donald Trump has been telling his audiences that he will win the 2020 election without winning more votes than Joe Biden. But unlike 2016, Trump’s new plan is not even to win the Electoral College despite losing the popular vote. Instead, he thinks that the U.S. House of Representatives will hand him a second term.

This strategy, however, is based on a misreading of the Constitution. Trump could yet pull off an Electoral College victory, although that is looking increasingly unlikely, but his “throw it into the House strategy” simply will not work.

As undemocratic as the Electoral College is, it is important to emphasize that Trump’s new strategy would represent an even more extreme rejection of the idea of government by the people. If the President were to be selected by the House under the relevant provisions that we describe below, each state—no matter its population—would get exactly one vote. Therefore, if the Republicans manage to maintain their current hold on 26 of the 50 delegations in the House, then the Republican minority in the People’s House could hand Trump a second term—no matter what the people or even the Electoral College says.

Of course, House Speaker Nancy Pelosi and her colleagues are wisely focused on winning the House seats necessary to flip that advantage. But the very idea that Trump’s supposed ace in the hole is to engineer a vote that is completely divorced from majority rule tells us everything that we need to know about Republicans’ willingness to hold onto power through whatever means necessary.

As we explain below, however, even if every other part of Trump’s scheme were to fall into place, the plain meaning of the constitutional text on which Trump relies would not in fact send the election to the House.

Go to the link to read the rest (and yes, you really DO need to read the entire piece). No paywall.

[Wounded Bear]

1. Trump and the Repubs are desperately seeking any means to steal this election...

[Kaleva]

2. some of us here have been pointing out that very key word "appointed".

"But Republicans cannot have their cake and eat it too. They cannot plausibly argue that the Twelfth Amendment’s silences override the Electoral Count Act while ignoring the Amendment’s plain language. If neither slate of Pennsylvania’s electors is recognized, Biden’s 268 votes would fall short of a majority of the 538 total Electoral votes theoretically available. However, the Twelfth Amendment does not say anything about those votes. Instead, it says that “[t]he person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed” (emphasis added).

We have italicized that last word—appointed—to emphasize that the Constitution does not say that a candidate must win a majority of the potential number of theoretically eligible electors who might have been appointed. He or she must win only a majority of the electors who were actually appointed. In the scenario in which the Electoral Count Act is set aside so that Pennsylvania’s votes do not count, its 20 votes are subtracted from both the numerator and the denominator. Now Biden’s (assumed) 268 votes would be a majority of the 518 votes cast by the “whole number of electors appointed.” Biden would win in the Electoral College, meaning that the decision would not go to the House."

https://verdict.justia.com/2020/09/30/no-republicans-cannot-throw-the-presidential-election-into-the-house-so-that-trump-wins

[BigmanPigman]

3. I wrote an OP this AM after seeing Pelosi and got a lot of good responses...

https://www.democraticunderground.com/100214166676

Now I am confused all over again.

[hlthe2b]

5. I suggest you listen to Tribe. He actually IS A/"THE" constitutional expert.

DU' legal expertise not withstanding.

[elleng]

4. THANKS!

[SharonClark]

6. Thanks for posting this.

It appears Pelosi confused and scared some people when she mentioned this on tv this morning.

[Fiendish Thingy]

7. Put your pearls back in the jewelry box, as sanity has prevailed

I have been posting my position along these lines for months, and now Tribe et al have confirmed it:

However, Pennsylvania’s governor is a Democrat who would veto any effort to circumvent existing state election law. Supreme Court precedent makes clear that Republican-dominated legislatures cannot legally bypass their own governors to change the rules governing federal elections, as two of the authors of this column and a colleague recently demonstrated. If Pennsylvania or any other state wants to change its voting laws, it must do so in the normal way, not by having the legislature go rogue. If Biden wins more votes in Pennsylvania, Governor Tom Wolf would certify the Biden electors to the Electoral College.

What if the Republican majority in the Pennsylvania legislature purported to designate the Trump electors anyway? There would then be two competing slates of electors from Pennsylvania: the governor’s slate based on Biden’s popular-vote win in the Keystone State; and the rogue state legislature’s slate based on its unlawful endorsement of Trump’s contrived claims of voter fraud. What then?

A federal statute, the Electoral Count Act, specifies that Congress settles disputes over electors, but that would lead to a stalemate, as the Republican-dominated Senate and the Democratic-dominated House would likely disagree on which Pennsylvania slate to recognize (unless, of course, the Democrats win back control of the Senate in this year’s elections, given that all of this would be determined by the Congress that is sworn in on January 3, 2021). The Electoral Count Act addresses this contingency as well. It says unequivocally that “the votes of the electors whose appointment shall have been certified by the executive of the State” are the ones that count. Thus, a partisan dispute arising out of competing slates of electors from Pennsylvania—or Michigan, Wisconsin, or North Carolina, which also have Democratic governors—would be resolved in favor of the Democratic governor’s choice. Biden wins.

[snip]

But Republicans cannot have their cake and eat it too. They cannot plausibly argue that the Twelfth Amendment’s silences override the Electoral Count Act while ignoring the Amendment’s plain language. If neither slate of Pennsylvania’s electors is recognized, Biden’s 268 votes would fall short of a majority of the 538 total Electoral votes theoretically available. However, the Twelfth Amendment does not say anything about those votes. Instead, it says that “[t]he person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed” (emphasis added).

We have italicized that last word—appointed—to emphasize that the Constitution does not say that a candidate must win a majority of the potential number of theoretically eligible electors who might have been appointed. He or she must win only a majority of the electors who were actually appointed. In the scenario in which the Electoral Count Act is set aside so that Pennsylvania’s votes do not count, its 20 votes are subtracted from both the numerator and the denominator. Now Biden’s (assumed) 268 votes would be a majority of the 518 votes cast by the “whole number of electors appointed.” Biden would win in the Electoral College, meaning that the decision would not go to the House.

This OP should be pinned to the top of the front page until Election Day.

[hlthe2b]

8. kick

[Cha]

9. Rt & Bookmarked.. TY hlthe2b!