Patterico's Pontifications

11/14/2020

A Potential Gamechanger for Trump

Filed under: General — Patterico @ 9:52 am



So Big Media has you convinced that Trump’s bid for re-election is a fool’s errand, huh? Not so fast! I have a curve ball for Trump to throw at Sleepy Joe. And the thing of it is, it was right there in the Constitution the entire time.

Let’s start by examining the provisions of the Twelfth Amendment relating to the election of the President:

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;

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; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.

Most people stop reading there. Not your humble blogger! I kept reading, and reading — all the way to Article XII. (The so-called journalists all told me they stopped at Article VII, which is probably why you’re not hearing about this anywhere else.) Anyway, right there in Article XII I found some very important language which might be a gamechanger:

Notwithstanding the above, if such person as receives the second greatest number of votes for President says the election is rigged, and continues to maintain that the election is rigged, and repeats that claim a sufficient number of times on social media, that person shall be the President. The sufficiency of the repetition shall be determined by a randomized selection of his supporters, who shall give greater weight to the repeated statements if they are typed in all capital letters and followed by a number of exclamation points.

In the copy I reviewed, this passage was written in very large letters in a Sharpie, but as the recent stories out of Arizona prove, a Sharpie is as valid as any other instrument for reducing intention to the written page.

What you may not realize is that the only reason you even have Article XII is because Trump promised to defend it. Here’s a story about it from 2016, related by Mark Sanford, who apparently didn’t even realize the importance of what he was hearing:

Rep. Mark Sanford (R-S.C.) left the meeting worried about Trump’s grasp on the basics of the Constitution. At a lunch with reporters afterward, he recalled that the candidate did not seem to know what he was promising to defend.

“I wasn’t particularly impressed,” Sanford said. “It was the normal stream of consciousness that’s long on hyperbole and short on facts. At one point, somebody asked about Article I powers: What will you do to protect them? I think his response was, ‘I want to protect Article I, Article II, Article XII,’ going down the list. There is no Article XII.”

That’s what you think, Mark Sanford! This staggering ignorance is not limited to politicians, either. Even law professors, who ought to know better, criticized Trump over this. Savor the irony as you read over this passage from Professor Orin Kerr after Trump indicated his intention to defend Article XII:

Donald Trump doesn’t know what is in the Constitution, and he doesn’t care that he doesn’t know. Article I, Article II, Article XII, Article L. Whatevs. Trump is just bluffing his way through this, hoping that enough people don’t notice or care. Because if he can get himself elected, he can exercise all the damn Article XII powers he wants.

[Homer Simpson voice]

He sure can, Prof. Kerr. He sure can.

61 Responses to “A Potential Gamechanger for Trump”

  1. I know, I know, don’t quit your day job to do standup

    Patterico (115b1f)

  2. Wait, I thought Article XII was written in crayon.

    Paul Montagu (77c694)

  3. i knew it would all work out in the end mr p

    i bet if you look closely there is some overlooked text in the 22nd amendment allowing a president who thinks he was treated unfairly to serve as many terms as he wants too

    Dave (1bb933)

  4. Article XII has the penumbras and emanations that all the super smart lawyers tell us is law.

    beer ‘n pretzels (042d67)

  5. I see Trump has put Rudy in charge of the election challenges.
    Given that for 4 years Rudy has never delivered anything but noise, this can be viewed as a concession.
    I do think Biden and the Democrats are going to get scorched earth from Trump for Christmas but the media won’t cover the unboxing.

    steveg (43b7a5)

  6. I think Mr. Dobbs is ling overdue for a Howard Beale moment.

    urbanleftbehind (cd860e)

  7. That was well written, but it’s hard to do a better job of making trump look like an imbecile than trump does.

    Time123 (9f42ee)

  8. Patterico: You left out the section on tanks and guns, otherwise known as the “James Matoon Scott” amendment.

    Kevin M (ab1c11)

  9. Lou Dobbs wants ethnic cleansing. Probably to a greater extent that one supposes.

    Kevin M (ab1c11)

  10. And, to be fair, there are a LOT of hidden fractional amendments:

    The Right to Welfare*
    The Right of an Abortion
    The Right to Medical Care
    The Right to Riot, Loot and Burn
    The Right to Control Everyone Around You
    The Right to Work
    The Right Not to Work
    The Right to be Left Alone**

    ———-
    *This may be covered by the Preamble.
    ** Just kidding.

    Kevin M (ab1c11)

  11. Article XII has the penumbras and emanations that all the super smart lawyers tell us is law.

    beer ‘n pretzels (042d67) — 11/14/2020 @ 1:27 pm

    Penumbras and emanations on steroids, to say the least. It would’ve been too much even for the late Justices William Brennan & Ruth Bader Ginsburg.

    HCI (92ea66)

  12. 10.Lou Dobbs wants ethnic cleansing. Probably to a greater extent that one supposes.

    Then he best start in the bedroom; his wife, Debi Segura, is of Mexican-American heritage. 😉

    DCSCA (797bc0)

  13. And she’s dark, certainly not a novela chick.

    urbanleftbehind (cd860e)

  14. Mark Sanford is an asshole.

    Bugg (ebf485)

  15. @13: Then he’s a LOT stranger than I thought because he could teach Tancredo lessons in xenophobia.

    Kevin M (ab1c11)

  16. Denial then anger. Then bargaining, depression and finally acceptance. He can always run again in 2024 even from his jail cell. 72 million trumpsters are ready to follow their fuhrer where ever he leads. Trump has parked the welcome wagon so it won’t be welcoming back into the republican party never trumper neo-cons and conservatives economic libertarians. We will see if the donor class and their multi-national corporate masters can buy their way back into the republican party. Remember never trumpers 72 million populist republicans hate your guts!

    asset (c91779)

  17. 6. steveg (43b7a5) — 11/14/2020 @ 1:42 pm

    I see Trump has put Rudy in charge of the election challenges.

    I think the ideas may be coming from Michael Flynn’s lawyer, Sidney Powell. At least she came up with the claim that hundreds of thousands of ballots were added, just for Joe Biden, in several states. She’s got not on;y Rudy, but Maria Bartiromo (@MariaBartiromo, following along.

    Given that for 4 years Rudy has never delivered anything but noise, this can be viewed as a concession.

    No he’s delivered things. The only thing is, it;s at least half wrong. Even if Joe Biden did say something about firing a prosecutor. Even if Hunter Biden really did leave a laptop a Delaware repair shop with files that were later recovered.

    Sammy Finkelman (bda33a)

  18. Encouraging states to chose their own electors instead of abiding by the elections would do more to damage norms than even things like “packaging” the SCOTUS.

    It’s a fevered dream that Trump supporters need to wake up.

    whembly (c30c83)

  19. Encouraging states to chose their own electors instead of abiding by the elections would do more to damage norms

    Particularly when it wouldn’t work. Only South Carolina has excersised that power since 1824 and most states have never done so, granting that power to the People thereof. Trying to assert that power after 200 years (or for the first time ever) won’t fly. After 200 years of possession (adverse or otherwise), the right of the states to do so, against the will of the People is pretty much abandoned.

    This will come up in the Electoral Vote Compact cases eventually.

    Kevin M (ab1c11)

  20. whembly (c30c83) — 11/15/2020 @ 8:53 am

    Encouraging states to chose their own electors instead of abiding by the elections would do more to damage norms than even things like “packaging” the SCOTUS.

    These Republican legislatures already said they would;t – Pennsylvania before the election; Georgia more recently where Governor Brian Kemp and Republican leaders said there wouldn’t be a special session before their regularly scheduled next session January 11.

    It’s a fevered dream that Trump supporters need to wake up.

    Most have – there were only 10,000 people in Washington not hundreds of thousands, but Trump Leadership PAC and the RNC is raising money off of this now. I don’t know if it is more or less than what they’re spending on this. Maybe less so far; they’ve probably got to catch up.

    Rudy Giuliani is probably working for free, but Joseph diGenova, Victoria Toensing, Sidney Powell, and Jenna Ellis and staff don’t come cheap.

    Sammy Finkelman (bda33a)

  21. Trying to assert that power after 200 years (or for the first time ever) won’t fly. After 200 years of possession (adverse or otherwise), the right of the states to do so, against the will of the People is pretty much abandoned.

    So the constitution is sort of like a living document, Kevin?

    One whose meaning evolves over time according to social trends and customs?

    This is one of your favorite talking points, but I don’t buy it at all.

    Dave (1bb933)

  22. Ninth Amendment. Pretty solid argument argument looks like to me that one of the unenumerated rights retained by the People is to tell their legislatures whom to appoint as Electors for President. No living Constitution required, just the long-lived right.

    nk (1d9030)

  23. Ninth Amendment. Pretty solid argument argument looks like to me that one of the unenumerated rights retained by the People is to tell their legislatures whom to appoint as Electors for President. No living Constitution required, just the long-lived right.

    Yes, as specifically articulated in Article II, through the state legislatures.

    Dave (1bb933)

  24. Also, there is no natural right to have a president, so there can be no natural right to a specific manner of choosing the same.

    Dave (1bb933)

  25. There is no natural right to anything except the potential to be nutritious (tasty is optional) to the next link in the food chain, so maybe that’s why the Ninth Amendment does not mention natural rights, but only “others retained by the people”?

    nk (1d9030)

  26. I’m sure you know this, Comrade nk, but the founders were very much in tune with Enlightenment political philosophy, and particularly John Locke.

    And one clearly articulated idea – which forms the basis for the Declaration – is that people start out with certain human or natural rights, which are prior to government, and then they establish governments to protect those rights. The rights the Ninth Amendment is referring to are the ones the people have independent of any government. That’s why the blueprint for the government doesn’t have to enumerate them, because the government is derivative, and the rights the Ninth Amendment is talking about are fundamental.

    I think maybe you’re just trolling me (and/or Kevin), because your argument is parallel to, but much sillier than, the one in Roe v. Wade. The right to privacy and control over reproductive decisions is much more at home in the Ninth Amendment than any right to popular voting for President (which right could not logically exist in isolation from the constitution that creates the office of president in the first place).

    Doesn’t your argument (and Kevin’s) imply that it would be unconstitutional to change Election Day? Federal elections have been held on the first Tuesday after the first Monday in November since 1845, making it an even longer-established tradition right than the popular selection of electors.

    Dave (1bb933)

  27. No, I am not trolling you or Kevin. There are no rights, and neither are whatever their opposites are, in a state of nature. Rights and not-rights exist only in a social context. The mere fact that it’s your would-be new rulers who told you that you had them back in 1776 should give you some kind of hint in the first place.

    Likewise, the Ninth Amendment is not limited to Lockean stardust and moonbeams. It encompasses all the rights the people have taken unto themselves, living in a society with each other and with a government, whether the government has written them down for them or not. Marriage, parenting, conjugaling, patting your dog, gazing at the Moon and the stars, expecting to vote for the President even if it’s the legislature who will hire, swear in, and pay the Electors who will represent the people’s choice at the Electorate College…?

    nk (1d9030)

  28. They pay those guys?

    Dustin (4237e0)

  29. So is having Election Day on Tuesday also a constitutional right now? I

    It’s been done that way everywhere for even longer than popular voting for electors.

    Dave (1bb933)

  30. Is it a right retained by the people under the Ninth Amendment?

    nk (1d9030)

  31. They pay those guys?

    I don’t believe Illinois does, Dustin, at least I could not find it in the Election Code, but Pennsylvania Electors will get a $3.00/day plus mileage to travel to Harrisburg.

    nk (1d9030)

  32. So the constitution is sort of like a living document, Kevin?

    One whose meaning evolves over time according to social trends and customs?

    No, it is based on a hundred years of precedent involving rights granted and rights waived. Look up adverse possession, then consider how much weaker the owner’s case would be if he’d given the OK.

    Kevin M (ab1c11)

  33. Is it a right retained by the people under the Ninth Amendment?

    It is a right transferred by the State to the People 200 years ago. Something waived for that long is not easily recovered.

    Kevin M (ab1c11)

  34. So is having Election Day on Tuesday also a constitutional right now?

    Not the same thing, and you know it. There is no substantive injury to holding an election on a different day, so long as that change occurs with reasonable notice and is not intended to disadvantage someone. If you changed it to Sunday (or Friday or Saturday) you might have problems due to disenfranchising the devout. But there would be no reaaon you couldn’t change the election period to Friday through Sunday.

    And, really, we have Election Month now.

    Kevin M (ab1c11)

  35. It is a right transferred by the State to the People 200 years ago. Something waived for that long is not easily recovered.

    That is entirely an invention of your own mind. No such thing has taken place, or could take place, in reality.

    There is no substantive injury to holding an election on a different day, so long as that change occurs with reasonable notice and is not intended to disadvantage someone.

    Rights are rights. You may believe there is no substantive injury to you. And some may feel there is no substantive injury from allowing what the constitution and almost 250 years of jurisprudence have established: state legislatures have plenary power to determine the procedure for selecting presidential electors.

    Perhaps the substantive injury would be setting a precedent that long-established traditions rights can be changed as the constitution allows.

    Dave (1bb933)

  36. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    Crystal clear.

    1) Does the constitution delegate a power to the United States? If so, the United States have that power.

    2) If not delegated to the United States, does the constitution prohibit the states from exercising the power? If not, the states have that power.

    3) If not delegated to the United States, and if prohibited to the states, the power is reserved to the people.

    There is no “adverse possession” of the powers of government.

    Dave (1bb933)

  37. If the State delgates a power to the People, where does the constitution say it can be undelegated? The states, all of them save South Carolina, gave up this power 200 years ago and did so freely.

    Kevin M (ab1c11)

  38. Dave–

    @37 — your #3 is a misreading. The powers there are not necessarily reserved to the people. It’s not clear that any are since the state is its citizens acting in concert. The Constitution does not assign many things to the feds OR the state, yet the state may well regulate them, and in practices so may the feds.

    Kevin M (ab1c11)

  39. Haoever, you make a valid point that the Constitution grants this power to the states. But it does NOT say that the state cannot delegate it further to the people. And it has been and for 200 years — by every state save one — and no one has said “This is all wrong!” so that delegation was legal.

    Now, you say that it’s not binding on the state and despite the passage of time, they can revoke this delegation at any time. Maybe they can, but there is no provision of the US Constitution that says they can, only one that says that — once upon a time, the power was delegated to the state.

    Which it then gave away.

    If I buy a car, it’s mine. If I sell it later it isn’t mine any more. Going back to that original bill of sale and trying to reclaim the car would cause some resistance.

    Kevin M (ab1c11)

  40. If the State delgates a power to the People, where does the constitution say it can be undelegated? The states, all of them save South Carolina, gave up this power 200 years ago and did so freely.

    They gave up nothing. They passed a law to define the rules. It replaced the previous law. The next law, whenever passed, will replace it in turn.

    The relevant power, which is explicitly granted in the Constitution, and incapable of annihilation, is the power to determine the manner of selection of electors.

    Using any particular method does not preclude choice of another method in the future.

    Dave (1bb933)

  41. The Constitution does not assign many things to the feds OR the state, yet the state may well regulate them, and in practices so may the feds.

    I’m sorry, but you’re the one misreading, or misunderstanding.

    Amendment 10 says (in a slightly roundabout but unambiguous way) that by default, all powers belong to the states. There are two exceptions:

    1) Powers the constitution grants to the United States are delegated to the federal government.

    2) Powers the constitution bars the states from exercising (and does not delegate to the United States per item 1) are reserved to the people.

    ——————
    Algorithm for enumerated powers:

    A) Is the power delegated to the United States by the constitution? If yes, go to B. If no, go to C.

    B) The federal government exercises that power. Stop here.

    C) Is the power prohibited to the states by the constitution? If yes, go to D. If no, go to E.

    D) The power is reserved to the people. Stop here.

    E) The power is reserved to the states. Stop here.

    Dave (1bb933)

  42. Haoever, you make a valid point that the Constitution grants this power to the states. But it does NOT say that the state cannot delegate it further to the people.

    The constitution, and the laws made pursuant to it, are the supreme law of the land, any thing in the constitution or laws of any state notwithstanding.

    No act (including failure to act) by a state can add to, delete or alter any power enumerated in the constitution.

    A state may choose to exercise a power or not. For instance nothing requires that a state select presidential electors and transmit their votes to congress.

    But even if a state failed to select electors, or transmit their votes, in any number of elections, the state would still be entitled to do so in the future, as soon as they decided to exercise their power to do so.

    Dave (1bb933)

  43. Dave, we’ll just have to agree to disagree, but I note that your theory does not match up with decisions like Wickard, Raich, Obergefell, etc.

    Kevin M (ab1c11)

  44. According to you, the passage of centuries with everyone agreeing on a thing does not create a precedent. And sometimes it doesn’t with some new factor (e.g. Obergefell), this is true. But there is no new factor regarding electoral votes being delegated to the people to decide. That some want to play games with that to 1) Re-elect Trump or 2) subvert the electoral college itself, is not a new factor, just the same old dishonesty in new clothes.

    Kevin M (ab1c11)

  45. According to you, the passage of centuries with everyone agreeing on a thing does not create a precedent.

    First, your characterization “passage of centuries with everyone agreeing” is absurd. The electoral college has always had critics. The popular vote compact thing has been law in some states for almost twenty years. It is still a very active matter of political debate in 2020. From what I could find, the last state to adopt popular voting for presidential electors did so in 1880. That is not even a century and a half. While states have continued to use popular elections, they have continued to exercise the power granted by the constitution every election cycle – including changing the criteria for who may vote. And there are two different systems, not one, in use, even today.

    Second, of course it “sets a precedent”. Lots of things set a precedent. But the only type of precedent that alters the constitution is a court ruling interpreting the law in a case or controversy. And conservative legal thought holds that when the actual text of the constitution is clear, there is no room for fundamental re-interpretation.

    We’ve never had a Jewish or Muslim president – does that precedent make members of those religious minorities ineligible, and the prohibition on religious tests for office inoperative?

    We’ve never had a state whose name begins with the letter “Y”. Etc, etc, etc.

    The list of arbitrary precedents one could cite is infinitely long. The constitution should be much more robust and stable.

    And this gets back to another point I’ve tried to make. We don’t have to pretend that every bad idea, or good idea we disagree with, is unconstitutional. Court packing can be a terrible idea and still be allowed. The popular vote compact can be a controversial and potentially risky idea without being unconstitutional. Staging a legislative coup by overruling the voters can be a terrible idea without being unconstitutional (IMO, if they *are* unconstitutional, it’s because they violate the guarantee clause).

    The constitution is not a cookbook for a government that can never makes mistakes. It’s the owner’s manual for a government in which mistakes can be corrected.

    Dave (1bb933)

  46. Dave,

    Clearly you are some kind of textual absolutist. I’m not.

    When there is no history to something, I will indeed look to the text and to its original meaning. But I also believe that people and governments make decisions to refrain from invoking some powers, or to interpret those powers in ways that limit the text.

    When these agreements pass beyond some point in time (e.g. “living memory”) they should not be changed without good reason, not just because some clever scoundrel sees a way to get over.

    Examples of these long-held agreements:

    * You can’t impeach judges for political reasons, and judges must stay out of politics (1805)
    * States delegate the choosing of electors to their people (1825-1828)(SC 1868)
    * Nine justices on the Supreme Court (1869)

    Not every “super-precedent” comes from the Supreme Court. Some come from long-standing mutual agreement among governments and the people.

    Some have held for a while and been abandoned (Jim Crow, marriage restrictions) when it became clear that the decision had to be overturned. But no such claim is made with respect to the three I list above, at least not by anyone except kooks.

    Kevin M (ab1c11)

  47. The electoral college has always had critics.

    Sure, but that IS in the constitution as a command. If states, with the consent of their voters (this is key, as it is now the voters’ right, not the state’s) decided on such a compact AND Congress agreed (one of the things denied to states is the ability to make compacts among themselves without Congressional OK), then sure, the state elgislatures could reclaim this right (given back to them by the voters) and form this compact.

    But that’s not the way it works. In my state the VERY FIRST THING the new Democrat governor of little NM (60% more powerful in choosing a president under the current system) did was, with no debate or notice, join this currently-illegal Compact. I am willing to bet that fewer than 10% of the voters are even aware that the state has fundamentally changed their elections.

    In the dark of night they change the law and when the sh1t hits the fan some day we’ll have an election where the STATES ignore their voters send electors to vote for the loser in that state. We’ll also see what happens when the find themselves doing that for the other side’s candidate and someone reneges.

    Kevin M (ab1c11)

  48. Or perhaps you think that re-electing Trump is a valid reason to overturn 200 years of long-standing behavior?

    Kevin M (ab1c11)

  49. The reason election day is tuesday it was hoped that employers wouldn’t let their workers out of their jobs till after the polls closed. It is why the secret ballot came in as too many workers complained their boss would fire them if they didn’t like who they voted for. Side note business funded sports team and news paper sports sections to get workers to go to the ball park instead of labor rallies and marches.

    asset (25ecf1)

  50. From what I could find, the last state to adopt popular voting for presidential electors did so in 1880.

    https://uselectionatlas.org/RESULTS/

    Try the election of 1828. All but South Carolina, which accepted it when it was readmitted. I’d be interested to see if SC could even join the Compact without changing it’s state Constitution.

    Kevin M (ab1c11)

  51. Obergefell is completely irrelevant to your claim.

    Obergefell did not hold that states had somehow forfeited their rights (under Amendment 10) to regulate marriage.

    Rather, it held that regulating marriage in a way that barred homosexuals from wedding violates the equal protection guarantee of the 14th amendment:

    No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    The states with gay marriage bans were attempting to do something the constitution (as amended) prohibits states from doing. And since the constitution is the supreme law of the land, the constitution wins.

    A more valid electoral analogy to Obergefell would be Bush v. Gore (although it was a state court rather than the legislature trampling the equal protection clause in that case).

    Dave (1bb933)

  52. I would like to see elections run Friday-Sunday. No early voting, absentee only for good reason on application. In fact, absentee should be digital with some cryptographically secure token of identity involved. A USB challenge-response dongle, keyed to the individual.

    Kevin M (ab1c11)

  53. Dave,

    I agree that’s what happened, but it just shows that there is no textual solution to the problem, and certainly no originalist solution. There was a power delegated to the states there some judges decided, through what can only be called a Living Constitution, that the 14th Amendment limited in a way that would have baffled its authors (who would have added an NO IT DOESN’T clause had they had an inkling).

    Kevin M (ab1c11)

  54. * There was a power delegated to the states where some judges decided that the 14th Amendment limited, through what can only be called a Living Constitution, in a way …

    Kevin M (ab1c11)

  55. The Wikipedia article on the electoral college contains the statement:

    Since 1880, electors in every state have been chosen based on a popular election held on Election Day.

    In August 1876, Colorado was admitted but there was insufficient time to organize a presidential election, so the state’s three electors were chosen by the legislature. This was the last instance in which a state’s electors were not determined by popular vote.

    Dave (1bb933)

  56. Yes, fine, but that was due to exigency, not any desire to operate that way. Florida’s votes in 2000 might have been cast that way, too, had the canvassing gone on too long. Trump’s plan to sow such confusion that state legislatures choose the slates is not only transparent, it’s despicable. It’s one thing to have an emergency. It’s quite another to manufacture one,

    Kevin M (ab1c11)

  57. Trump’s plan to sow such confusion that state legislatures choose the slates is not only transparent, it’s despicable. It’s one thing to have an emergency. It’s quite another to manufacture one,

    We’re in violent agreement on that…

    Dave (1bb933)

  58. Profiles in Courage

    NBC’s Chuck Todd: “We invited every single Republican senator to appear here on Meet the Press this morning. They all declined.”

    Dave (1bb933)

  59. Dave (1bb933) — 11/16/2020 @ 12:26 am

    From what I could find, the last state to adopt popular voting for presidential electors did so in 1880.

    That would be Colorado, becausein 1876 it had just been admitted to the Union as a state, and it may not have been possible to hold an election (or perhaps that was the reason Colorado was admitted to the Union that year.

    In 1892, the state of Michigan devised a complicated system in order to split Michigan’s electoral vote.

    We’ve never had a state whose name begins with the letter “Y”.

    Or “B” or “E” or “J” or “Q” or “X” or “Z” We have four with “I” and only got one with “H” in 1959.

    “B” is really an oversight.

    “Y””Etc, etc, etc.

    Staging a legislative coup by overruling the voters can be a terrible idea without being unconstitutional (IMO, if they *are* unconstitutional, it’s because they violate the guarantee clause).

    No, this clause:

    https://www.constituteproject.org/constitution/United_States_of_America_1992

    Article II, Section 1, Clause 3:

    The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

    In 1845, Congress established the time of choosing the Electors as the first Tuesday after the first Monday in November – November 3, this year. A state cannot pick its electors after that…unless six days before the Electors are to meet, no Electors have been chosen by a state – then the state legislature can step in. (maybe 1877 law)

    Sammy Finkelman (f6c6ee)

  60. If no Electors have been chosen by a state – then the state legislature can step in. (maybe 1877 law)

    This was the longshot possibility Trump was drifting to

    https://www.wsj.com/articles/what-is-trumps-legal-strategy-try-to-block-certification-of-biden-victory-in-states-11605138852

    https://www.wsj.com/articles/trump-broadens-his-efforts-to-overturn-election-outcome-11605800104

    …except it almost couldn’t happen.

    Not only would a state legislature, if it ever got to that point, approving anything other than the apparent Elector slate winner in that state as per pre-Election Day law, (statewide popular vote winner usually) never be forgiven, and be treated as a violation of their oath of office, but, depending on exactly what the state law says, a state court might order a certification, or a Governor might do it.

    And if there are two competing slates of Electors from a state (as there was from Hawaii in 1960 because of a reversal during a recount) it’s up to Congress to decide and they would uphold the spirit of the constitution.

    + (bc65ac)


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