Musings from the Bunker 9/11/20
ANNIVERSARY OF SEPTEMBER 11
Today is the 19th anniversary of the attacks on September 11, 2001. Today is also six months since the beginning of much of the country’s “lockdown” or shelter-in-place—but when much in our lives changed. Today we stand at over 190,000 deaths, or some 61 times the number of those who died on September 11th. To put in perspective the “perfect” job we have done in combatting this disease, our per capita deaths are twice those of Canada, five times those of Germany, and 20 times those of Australia. Food for thought.
THE ELECTORAL CRISIS AHEAD
The election is now only 53 days away. Several people have written regarding the constitutional dilemma(s) in which we may find ourselves in, come this November 3rd (or December 14th or January 6th or January 20th (or even later)). Pick your poison, venue and date!
Now that our President has declared the upcoming election to be the greatest fraud in history, is attempting to cripple the Post Service’s ability to process and deliver absentee ballots, and has lawyered up for all possibilities, let’s examine some of the possible scenarios. Everyone should get out their pocket U.S. Constitutions and follow along!
I suspect it will be into the wee hours before the vote counts are known in what likely will be a tightly contested election. I think it is a safe assumption that Biden will win the popular vote (Hillary did last time; although Mr. Trump still challenges that). There is little to indicate Biden won’t do as well as, or better than, Ms. Clinton.
If either candidate wins over, say, 325 electoral votes (which is unlikely), it should be “game over.” But if it’s any closer, the disputes in Florida in 2000 will seem like child’s play. The various issues disputes likely will be:
1. Disputes over actual counting (it’s just too close, like in Dade County—recounts in multiple states)
2. The President claims victory in States where the vote tallies as of 11:59 p.m. November 3 show him in the lead (arguing that “late ballots” cannot be counted, which of course is absurd and counter to practice and the law).
3. The President claims victory as above and claims that the late ballots will include a flood of invalid, fake, doctored or fabricated ballots.
4. Republican Secretaries of State will authorize massive numbers of recounts and/or may not allow for counting of absentee ballots received subsequent to the 3rd.
5. The President or the Justice Department impounds ballots still in the postal system. I continue to maintain that, particularly the President’s indifference to the limitations of the Chief Executive or norms of behavior, this is a real possibility. After all, he has been weaponizing other instrumentalities of the national government. Plus, of all the crazy scenarios, this is the one that he can control. The others require the complicity others, including the right-wing media, Secretaries of State, and Governors.
Most Biden supporters believe the President will not accept electoral defeat: https://www.theguardian.com/us-news/2020/sep/02/democrats-fear-trump-reject-election-defeat-poll
Presumably the recounts and lawsuits will move speedily and the wheels of justice will yield some results of what likely will be myriad disputes before the date the Electoral College meets. Let’s assume it actually meets (although query what happens if it doesn’t). Here are some of the exciting things that could happen:
1. Some states may have Secretaries of State that decline to certify the State results. In that event these states may find themselves unrepresented in the Electoral College. Note that the “Electoral College” does not actually meet. The electors meet in their respective States to cast their ballots.
2. Some states may have a Secretary of State or Legislature certifying on slate of electors and the Governor certifying another. This would be a replay of the backroom politics of the Election of 1876, the result of which was a Hayes Presidency, notwithstanding Tilden’s perceived victory. In the end a deal was cut to pull troops from the South and segregation ran amok, but Hayes got his victory.
3. The electors pledged to the President refuse to cast votes until the elections of various other State electors are resolved.
4. States may say that the Postal Service have delayed their results and, therefore, they cannot certify the results (although Bush v. Gore may have at least partially resolved this). It’s messy.
The concern with multiple delegations from the same state is a problem. But if 270 is the magic number and several states have been taken out of the voting by virtue of one of the above scenarios (or something else similar), a result may not be possible.
The new Congress is seated. The Electoral College is to deliver their vote to a Joint Session. But here’s a question: If some number of states’ ballots are not certified, does this also mean their ballots for House and Senate similarly are not counted and, if so, are these two Houses not fully constituted?
Without an Electoral College result, the House votes, with each State receiving only one vote (presumably cast after a vote of the delegation). This happened in the Election of 1824, when John Quincy Adams beat out Andrew Jackson.
This would give the edge to the Republicans in a perverse twist of the Constitution, as there are some 26 “leaning Republican” state delegations. In this instance, would state delegations defy the obvious results of their own citizens and vote their “conscience”? Would Republicans elect a person who did not receive a majority of the popular vote or a plurality of the electoral vote? Pandemonium ensues.
But what if the tilt goes the other way? What if some state delegations aren’t seated because elections for Congress remain in dispute? Perhaps Democrats could have the edge. But what if the entire national vote is unknown/uncertified? Does that mean there is no House to be seated January 6th?
That would leave appointment of the Vice President to the Senate. This happened once, in the Election of 1836. In that case, there were four candidates for Vice President and the Senate had to vote. If it’s the same split as today, the Republicans presumably elect Mr. Pence. He would be acting President until the Presidential election is resolved. But if the national election results are in dispute, then only 2/3 of the Senate remains from the prior term and the Democrats control. In that case, greetings, acting President Harris…
It is undisputed that the President’s term ends January 20th. Mr. Trump might try to accept the crown of a disputed election or he is escorted from the White House at the end of his term. But it is crystal clear his term ends at noon on January 20th. And, no, I don’t believe the military will face off against the Secret Service, or one of those other crazy military-related involvements. And while much could come before the Supreme Court, they will not overrule a clear Constitutional requirement.
If the House and Senate both fail to vote in January, for whatever reason, then we go to Presidential succession. In that case, and if there is a House and the Democrats control it, then it’s acting President Pelosi. But if no House is seated, then the nod goes to the next in line—Senate President Pro Tempore. Then, depending upon who controls the Senate in January, it would be acting President Chuck Grassley (if the Republicans are in control) or acting President Patrick Leahy (if the Democrats are in control, either by shift of control or the failure to seat the 1/3 of the Senatorial seats up in this November’s election).
PRESIDENTIAL EMERGENCY POWERS
If all this doesn’t make you squeamish enough, the President has undisclosed emergency powers. Mr. Trump has repeatedly remarked that he has great powers that people don’t even know about. He’s definitely tuned in to the vast array of extra-legal powers that exist in these powers: https://www.brennancenter.org/our-work/research-reports/presidential-emergency-action-documents. Let’s remember that even Abraham Lincoln suspended the right of habeus corpus during the Civil War. They also were used to detain American citizens in time of war.
AND IF HE WON’T LEAVE, DO HIS SUPPORTERS TAKE IT TO THE STREETS?
Maybe. Gun sales are up. The only way some supporters think Biden can win is if there is a deep state conspiracy. See these for various scenarios: For slightly different take, see: https://www.theguardian.com/commentisfree/2020/jul/27/trump-loses-election-what-happens-possibilities, or this: https://www.theatlantic.com/politics/archive/2020/06/when-does-trump-leave-white-house/613060/, or this: https://www.independent.co.uk/voices/trump-lose-2020-election-supporters-maga-presidency-a9606081.html
We depend upon law, custom, and protocols established over the last two plus centuries. If the parties act like adults, we will inaugurate a president on January 20th or we will be left with one of these Constitutional unsatisfactory compromises. Your guess is as good as mine. And smarter folks than I have gamed this any number of ways.
And watch for the pardons to fly after election day. Everyone in America named Trump, related to Trump, acolytes, epigones, sycophants, friends, partying buddies, partners, lenders, employees, lawyers, political appointees, you name it. Some say that if the election falls Mr. Biden’s way, then Mr. Trump will resign on January 19, so that he can be pardoned by Mr. Pence (and avoid attending the inaugural). Who knows? We are in uncharted waters.
Here’s the 12th Amendment, if you want to follow along: https://www.google.com/search?q=12th+amendment&rlz=1C5CHFA_enUS738US738&oq=12th+amendment&aqs=chrome.0.69i59j0l6j69i60.2206j0j4&sourceid=chrome&ie=UTF-8
Pray for our Republic,