12th Amendment Gambit....

So... If any candidate can't reach 270 Electoral votes, the US House of Representatives get to choose the next POTUS. I'm sure most of us already knew this. Given the Democrats majority in the House, It seems as if Joe Biden has a natural advantage in this scenario... BUT WAIT!!! THERE'S MORE:

So the Representatives have to form a delegation by state and each state delegation gets only 1 vote. And the candidates have to reach a quorum to win POTUS. I did not know this until I read this yesterday....


Guys... Trump won 37 states. That's more than enough to reach a quorum.



So if Trump is successful in preventing battleground states from certifying their election results, and Joe Biden can't get to 270, then this is the process we are bound to follow. It is entirely feasible the Trump could lose the popular vote and the electoral college and still win the presidency.


Does this concern anyone else?

Yes, and I have no doubt that he will try it.

Not excessively, though it clearly is a shortcoming of the American electoral system. But that clause is intended for cases where no one got the majority necessary in the EC, not a case where someone simply refuses to recognize that majority. For the latter case to apply, it would absolutely have to go through SCOTUS. Now I know Trump has stacked SCOTUS with the most partisan justices he could find, but in the absence of any evidence whatsoever of fraud, for SCOTUS to overrule all the lower court findings and the decisions of all the states would so thoroughly discredit SCOTUS that no one could honestly pretend any longer that it is independant of the political parties.

I can't see those justices taking that route. 1 or 2 of them? Sure; a couple of them are very willing to distort "justice" completely in order to apply whatever policies they want. But 5 of them? Can't see it. Roberts has worked very hard to maintain the notion that SCOTUS is not a partisan organ, so I can't see him taking that route. That would mean that there would have to be zero honest justices among the other conservatives for the ruling to go Trump's way. The chances of that, IMO, are very, very small.

It is very likely, IMO, that sooner or later the outcome of the election will be brought before the Supreme Court. And despite the very low opinion I have of some of the justices, I expect a ruling to be within 1 vote either way of 7-2, against Trump. A court that makes a ruling when all the evidence clearly indicates the contrary has no credibility, and SCOTUS is proud enough of itself not to want to do that, no matter how much some of them would like to see Trump re-elected.

I think you might have misunderstood what the quorum is about. The "quorum" language just means 2/3's of the states need to send reps in order for the vote to happen.

A majority of "all the states" (ie 26) is required to determine the winner.

So, 33 states have to send delegates in order for the thing to even happen (which is fully guaranteed, I promise all fifty states would send delegates). But once the actual vote happens, a winner needs votes from 26 states (a simple majority).

Maybe I'm wrong, but that's the way it reads to me, and that's the way the term "quorum" is used in every other context.

Yeah.. My point was that even if all the Dem states boycotted, they would still have a quorum. Sorry I wasn't more clear.

But even if the Dem states showed up, assuming that the Republican states voted for Trump and the Democratic states voted for Biden, Trump would still win by that logic.

But, who knows. I don't know if there is even a mechanism in place to determine who the delegates are. Does the Governor of the state appoint the delegates? Does the legislature? Is each state supposed to decide? Do any states already have existing laws that define this?

My understanding is the Representatives from that state would decide the state's vote. I'm not aware of any mechanism that the 27 bipartisan Representatives from NY would go about determining their 1 vote. Or the 53 Reps from California.

Derp. Boy, I didn't read that through or think that through.

I'm not sure how all 50 states do it, but in order to certify the election, you need the consent of Election observers from both parties. What if the Republican observers in MI, PA, GA, AZ and NV refused to certify the election by saying there was substantial voter fraud in the cities? It should be thrown out of court for lack of evidence, but the courts have been "gerrymandered" for lack of a better word. Now neither candidate reaches 270 and the election goes to the House.

This totally possible. I don't know enough to feel comfortable about the SCOTUS we have now. Sotomayor, Kagan, Breyer and Roberts, definitely not. Alito & Thomas, Fuck yeah. Gorsuch, Kavanaugh and Barrett? I don't know, but I'd rather not roll those dice.

Any members of LawForge lurking around care to chime in? @Raoul the Red Shirt

Dude!!

This is the plan!!

It fell apart in MI, but there are still a number of states left that haven't certified!

I don't know much more about the mechanics of this than anyone else. I would like to think that things would not come to this.

But by my count, Biden won the popular vote in 25 states:

1. Hawaii
2. California
3. Washington
4. Oregon
5. Nevada
6. Arizona
7. Colorado
8. New Mexico
9. Minnesota
10. Wisconsin
11. Illinois
12. Michigan
13. Maine
14. Vermont
15. New Hampshire
16. Mass
17. Rhode Island
18. New York
19. Connecticut
20. Pennsylvania
21. New Jersey
22. Delaware
23. Maryland
24. Virgnia
25. Georgia

I really just know what was posted here, so I don't know if there are any guidelines for how the delegations decide. I don't know, if, hypothetically, they could just say "We know that the main candidates were Trump and Biden, but we're choosing Bernie Sanders/Jo Jorgensen/etc. to be our next president."

It's entirely possible that some of the state delegations would deviate from the popular votes of their states but that goes both ways. It is possible that state delegations exist that are more liberal than their own populations would vote in Biden, or that even conservative politicians would say "Hey, screw the fact that my voters wanted Trump, I'm going to vote Biden because it's in the country's best interest, or my personal best interest" or whatever. (As is obviously the reverse).

I think the deadline for certification for most states is still a bit away, and I tend to doubt that any legal shenanigans would a) prevent the various states from meeting their deadlines b) that there would not be some sort of relaxing of a missed deadline by the courts if that should occur.

Biden only needs the minimum 270 EC votes for this not to even be an issue. He clearly won a lot more than that, despite Trump's inane rantings.

We'll probably have a clearer picture in the next five days, as most of the "swing" states such as GA, MI and PI have to certify their election results.

I also agree with @Asyncritus, in that even if it comes down to this kind of gambit I don't see the Supreme Court siding with Trump, even though three of the judges are Trump appointees.

Of these states, if it were up to their Representatives would go for Trump without regard to their state's popular vote? Nevada, Arizona, Wisconsin, Michigan, Maine, Pennsylvania, and Georgia? Maybe?

https://wordforge.net/index.php?thr...ntial-general-election-thread.120127/page-135
From the linked post that has the certification dates
Georgia (Nov 20)
Pennsylvania (Nov 23)
Michigan (Nov 23)
Arizona (Nov 30)
Wisconsin (Dec 1)
Nevada (Dec 1)

Georgia officials seem to have grown a spine and if they certify as scheduled, that's a big nail in the coffin. Pennsylvania and Michigan certifying (I think) would do it. I don't have the electoral college numbers in front of me, so if one of you can look up the numbers, tell me if Georgia, Pennsylvania and Michigan would put Biden at 270

Via the Internets:

Nevada's congresspeople: 3 Dems, 1 Republican
https://en.wikipedia.org/wiki/List_of_United_States_Representatives_from_Nevada

Arizona's representatives: 5 Dems, 4 Rs
https://en.wikipedia.org/wiki/List_of_United_States_Representatives_from_Arizona#Current_members

Wisconsin: 5 Rs, 3 Dems (ruh-oh!)
https://en.wikipedia.org/wiki/List_of_United_States_Representatives_from_Wisconsin

Michigan: 7 Ds, 6s Rs, and 1 L(?!)
https://en.wikipedia.org/wiki/List_of_United_States_Representatives_from_Michigan

Maine: 2 Ds, 0Rs
https://en.wikipedia.org/wiki/List_of_United_States_Representatives_from_Maine

PA: 9 of each
https://en.wikipedia.org/wiki/List_of_United_States_Representatives_from_Pennsylvania

GA: 8 Rs, 2 Ds.
https://en.wikipedia.org/wiki/List_of_United_States_Representatives_from_Georgia

So that is not all great.

From my quick scan, Iowa looks to be the only state whose congressional makeup would potentially signal a flip from Trump to Biden: 3 Ds, 1 Rs.

But there are a couple of dominos that would need to fall before this would be relevant:

1. Some number of states would need to miss the certification deadlines and/or there would need to be enough faithless electors such that Biden could not get to 270 electoral votes

2. Courts would have to not grant leeway in the case of the certification issue.

Currently Biden has 306 electoralvotes.

The states in dispute have as follows:

AZ: 11
GA: 16
MI: 16
NV: 6
PA: 20
WI: 10

Getting states' results certified that would result in 43 additional electoral votes from that list should (knock on wood) be easy to do.

Having enough faithless electors to deny 270 votes would be unprecedented.

That makes me feel a lot better. If this was his strategy, it seems like it would be futile as well.



That 1 L in Michigan would be Rep Justin Amash.... He was a Republican but recommended that the Senate vote to remove Trump from office after he presumably was the only one who actually read The Mueller Report. So the GOP kicked him out. It would be amazing karma if he ended up being the swing vote in MI that put the nail in Trump's coffin.

I was editing the post before you replied. I think the most important thing is for that scenario to play out, surprising stuff needs to happen first. And yeah, it's 2020 and I don't want to jinx anything, but I think we're reasonably safe from this being anything more than a thought exercise.

No. To paraphrase the Enterprise theme, it’s a long road, getting from here to there.

Didn't SCOTUS do away with faithless electors?

That is a whole lot of work for Trump and rudy to do. Those two are not known for complex planning and lots of effort. It is not like Trump is Darth Cheney.

I don't think so, and I don't think that they technically could. The manmer in which a state sets up its electors is -- at least in my not-a-Con-law-specialist, never-done-any-meaningful-research-on-the-subject way of thinking -- entirely up to the states. Some states have passed laws saying "electors can't be faithless," and SCOTUS has upheld those laws as constitutional. But hypothetically, an elector could say "I don't care, I'm voting for Trump in face of the law and the popular vote." From what Wikipedia is saying even some of the states that have laws on the books against that don't really have an enforcement mechanism or a way to say "enjoy jail, faithless elector" or "Never mind faithless elector's vote -- here's a replacement elector who is going to actually follow the law."

Trump gerrymandered the courts... including SCOTUS. and Repubs are gonna Repub. If a state requires a bi-partisan certification like MI does and the Repubs refuse, we could be looking at this.

This scenario would have to play out in at least two of the bigger states (MI, GA or PA) in order to threaten Biden's EC majority. I really don't see that happening.

I agree with @Raoul the Red Shirt... let's just hope this is an interesting thought experiment.

So they didn't do away with it but they give a state the right to deal with faithless electors how they see fit.

No. He would also have to have California. And maybe even Rhode Island as well...

Or Darth Rove.

It's almost certainly not going to get to this point fortunately, but it's one of the potential strategies that the Trump admin was thinking of when they rushed through the pre-election court appointment that FF cheered on.

And for anyone who doubts that they would be doing this gambit if they could...