Congress can overturn a presidential election? (1 Viewer)

[Maurile Tremblay]

This NYT article has me frightened.

The Constitution says that, after an election, each state's Electors shall put their votes in an envelope and deliver them to the Vice President so that they can be counted. The Vice President opens all the envelopes in the presence of both houses of Congress. I don't see who, specifically, is in charge of doing the counting math (what if there is partisan disagreement about how to count?), but let's put that aside for the moment.

The Electoral Count Act of 1887 says that the Vice President can hear objections to the Electors' votes if they are made jointly by a member from each chamber. So if Devin Nunes and Ron Johnson both object to votes from Wisconsin, Nevada, Michigan, Pennsylvania, and California, the objection is live and must be resolved. Members of the two houses of Congress then go to their respective corners to consider the objections. If the House and Senate agree that the objectionable votes should be thrown out ... they are thrown out. Congress isn't supposed to throw out votes that have been "lawfully certified" by the governor of the state in question. They are supposed to throw out votes only if they were not "regularly given" by the electors -- like if the elector had taken a bribe or something. In other words, Congress isn't supposed to concern itself with election fraud or with voter fraud, but only with fraud by the electors themselves.

So obviously Congress isn't supposed to throw out electoral votes for made-up reasons in order to change the outcome of the election.

But what if Republicans are in control of the House and Senate in January 2024? In the Biden-Trump rematch, Biden could win in a huge landslide, but Republicans in the House and Senate could falsely say that Electors from blue states are all corrupt, so only votes for Trump should count.

The NYT article is saying that some Republicans are on board with that plan for 2020 but it won't work because Democrats have the House, and anyway there are people like Romney and Murkowski in the Senate.

But what if Democrats didn't have the House, and what if the Republican majority in the Senate were larger?

Is this something to be legitimately worried about in 2024?

 

[Ramsay Hunt Experience]

It’s OK. Our deeply established informal political norms will save us. 
 

 

[2Squirrels1Nut]

This would be the end of the United States.  :(

 

[Maurile Tremblay]

It’s OK. Our deeply established informal political norms will save us. 

Thanks, this is reassuring.

 

[Sea Duck]

Is this something to be legitimately worried about in 2024?

Yes, absolutely. If Republicans had control of the House in January 2021, then the fate of the Republic would come down to one or two Mitt Romneys in the Senate.

 

[Ramsay Hunt Experience]

Thanks, this is reassuring.

Just remember that the glass of corrosive battery acid is half-full. 

 

[Ramsay Hunt Experience]

In seriousness. It seems to me that a lot of the GOP have been willing to sign off on symbolic gestures, but have held the line at least on blatantly doing things with legal consequences (at least after the election). No state legislature seems inclined to nominate a competing slate of electors, for example. 
 

just based on the way this has been litigated, I think this has been far more an exercise in giving Trump a talking point (and Republicans a hook for further voter suppression efforts) than a sincere attempt to overturn the election. Whether Trump himself understands that is an open question.  

 

[gianmarco]

In seriousness. It seems to me that a lot of the GOP have been willing to sign off on symbolic gestures, but have held the line at least on blatantly doing things with legal consequences (at least after the election). No state legislature seems inclined to nominate a competing slate of electors, for example. 
 

just based on the way this has been litigated, I think this has been far more an exercise in giving Trump a talking point (and Republicans a hook for further voter suppression efforts) than a sincere attempt to overturn the election. Whether Trump himself understands that is an open question.  

Until over 100 elected officials decided to sign onto state suits to invalidate election results.

It would seem, if it had been successful, it would have had legal consequences.

I'm not sure I share your confidence in doing the right thing when it matters.

 

[Alex P Keaton]

Until over 100 elected officials decided to sign onto state suits to invalidate election results.

It would seem, if it had been successful, it would have had legal consequences.

I'm not sure I share your confidence in doing the right thing when it matters.

This

 

[rockaction]

If we're looking to proceduralisms to save us from utter malfeasance and chicanery by elected officials who should know better, we are looking at the end of the Republic anyway. Democracies born from revolution are not bound by any tradition, but by their own belief in the efficacy and need for democracy as the best way of life for its inhabitants. I'm not so sure we have that right now. More problematic, most people in the citizenry who identify with the losing side don't believe their side lost by democratic means. That's the true trouble with this. A lot of people think they got jobbed because of false information and deceitful news organizations promoting it. The question then becomes two-fold: Are there democratic norms at the highest levels of government? Does the citizenry, and its democratic prejudices, agree that these norms have been followed?

Big thing, this. 

 

[Maurile Tremblay]

As has been the case all along, one of the benefits of the Trump administration is that it's given us all occasion to brush up on our basic civics.

 

[Doug B]

Signing an amicus brief is pretty much the quintessential symbolic act, IMO.

One of my big take-aways from the past month is that affadavits and amicus briefs are little more than wastes of trees. Nothing of substance. Ever.

 

[shader]

This NYT article has me frightened.

The Constitution says that, after an election, each state's Electors shall put their votes in an envelope and deliver them to the Vice President so that they can be counted. The Vice President opens all the envelopes in the presence of both houses of Congress. I don't see who, specifically, is in charge of doing the counting math (what if there is partisan disagreement about how to count?), but let's put that aside for the moment.

The Electoral Count Act of 1887 says that the Vice President can hear objections to the Electors' votes if they are made jointly by a member from each chamber. So if Devin Nunes and Ron Johnson both object to votes from Wisconsin, Nevada, Michigan, Pennsylvania, and California, the objection is live and must be resolved. Members of the two houses of Congress then go to their respective corners to consider the objections. If the House and Senate agree that the objectionable votes should be thrown out ... they are thrown out. Congress isn't supposed to throw out votes that have been "lawfully certified" by the governor of the state in question. They are supposed to throw out votes only if they were not "regularly given" by the electors -- like if the elector had taken a bribe or something. In other words, Congress isn't supposed to concern itself with election fraud or with voter fraud, but only with fraud by the electors themselves.

So obviously Congress isn't supposed to throw out electoral votes for made-up reasons in order to change the outcome of the election.

But what if Republicans are in control of the House and Senate in January 2024? In the Biden-Trump rematch, Biden could win in a huge landslide, but Republicans in the House and Senate could falsely say that Electors from blue states are all corrupt, so only votes for Trump should count.

The NYT article is saying that some Republicans are on board with that plan for 2020 but it won't work because Democrats have the House, and anyway there are people like Romney and Murkowski in the Senate.

But what if Democrats didn't have the House, and what if the Republican majority in the Senate were larger?

Is this something to be legitimately worried about in 2024?

The more immediate issue would be if dueling sets of electors are certified by states, but as today is Dec 14th, I don't know if that is a concern.  But it was something I read/heard a lot about before the election.  S

https://www.reuters.com/article/us-usa-election-dueling-electors-explain/explainer-dueling-electors-pose-risk-of-u-s-vote-deadlock-idUSKBN2712M7

 

[Ramsay Hunt Experience]

One of my big take-aways from the past month is that affadavits and amicus briefs are little more than wastes of trees. Nothing of substance. Ever.

I wouldn’t be so categorical. Affidavits are accepted as credible evidence all the time. And good amicus briefs have the power to persuade courts. My wife has authored several that have been cited favorably in the eventual decision. 
 

With amicus briefs, you’re trying to offer context and perspective that isn’t in the merits brief. Often, you’re doing mor social science or reporting than legal argument. It’s not supposed to be a brief that just says “I agree with the Plaintiff for the same reasons he cited.”

 

[Drunken Cowboy]

It is crazy that the bar for this vote wouldn't be higher than majority. 

 

[Doug B]

I wouldn’t be so categorical. Affidavits are accepted as credible evidence all the time.

Surely ... but "We have affidavits!" is too often being taken as "We have rock-hard proof and unassailable truth!" Taking $20 to a notary and signing a piece of paper shouldn't be enough to convince anyone of anything. Yet here we are.

 

[Ramsay Hunt Experience]

Surely ... but "We have affidavits!" is too often being taken as "We have rock-hard proof and unassailable truth!" Taking $20 to a notary and signing a piece of paper shouldn't be enough to convince anyone of anything. Yet here we are.

This always goes both ways. Having evidence is not the same as having proof and not having proof is not same as not having evidence. 
 

in these cases, many of the affidavits stand out because the drafting deficiencies fail establish them as evidence. Either they aren’t relevant to what is being sought to be proven or they aren’t based on personal knowledge or whatever. 
 

but it’s important to understand that in the cases the Trump campaign has participated in (as opposed to Powell’s Kraken suits) they really haven’t tried to rely on these types of affidavits. Trump’s lawyers haven’t pressed fraud cases. 

 

[Doug B]

but it’s important to understand that in the cases the Trump campaign has participated in (as opposed to Powell’s Kraken suits) they really haven’t tried to rely on these types of affidavits. Trump’s lawyers haven’t pressed fraud cases. 

Correct -- and understood by far too few people.