***This article was written on 7/28/20. On 7/30/20 President Trump floated the idea of postponing the November election, making this all the more important to read. At a later date we'll look in to the possibility of postponement thru both legal and not so legal means.***
Yes, this is long. Yes, it is confusing. It is also crucial that we understand it because, make no doubt, the political strategists for both Republicans and Democrats are already considerthe possibilities and, in my opinion, some of them are counting on this scenario.
This isn't about absentee voting. It's actually about something far scarier than voter fraud but the issues of absentee voting and the fears of in person voting set the stage for a major constitutional crisis, so bear with me.
There has been a lot of discussion about mail-in ballots vs in-person voting in November. It seems to have fallen across party lines with Democrats pushing for mail-in ballots citing fears of being afraid to go to polls safely, and Republicans loudly calling "foul" at the idea citing fears of election fraud. Both arguments have merit- The fact of the matter is people are afraid; whether those fears are legitimate or not is a discussion for another time. There are also already proven cases where absentee voting has opened the door for fraud (I'm looking at you Chicago, 1960*). Already in North Carolina, thousands of illegal absentee ballots were sent out and had to be recalled- anyone who received those ballots and didn't hear about the recall will likely try to vote with them and their vote would be discounted as invalid. Wouldn't that be an interesting move for a Democrat group to send thousands of illegal ballots to Republican registered voters knowing that at least a few of them would attempt to use those illegal forms? Sorry, squirrel. Aside from any insidious actions, pure government incompetence and poor framework also play a roll. There have already been numerous reports across the country of Primary absentee ballots found sitting lost in post offices for months, and as of July 25th, a full month after the primary, New York state still doesn't know who won it's key primary vote because they can't figure out how to count all of the mail-ins.
Currently, there is no decent framework for absentee voting- we're just not set up for it. Both parties risk poor turnout due to health fears, particularly in major cities like New York, L.A., San Francisco, and Miami. Couple that with safety fears due to rioting in places like Portland and Chicago and an attempt to postpone the November Presidential election seems to behoove both parties, at least to some extent, at least in some states. Is this legal? Well, maybe. Maybe not. Election Day is set by law as the first Tuesday after the first Monday in November.
However, does this apply to the popular vote, or to the Electoral College vote, or both? According to Article 2, Clause 2, of the United States Constitution, each state determines how its electors are appointed to the Electoral College. Historically it has been understood that the “popular vote” determines how the electoral college votes but that is not mandated by the Constitution. It is entirely possible some or all states choose to simply name electors to the Electoral College without a popular vote, some states may go ahead with their November elections and name electors as normal, and yet other states may choose not to hold any elections and don't name any electors at all to the EC.
More likely than not, some states will go ahead with their elections. Others will not. What happens? Welcome to the rabbit hole.
According to the United States Constitution, the President's term ends on January 20, 2021. Unless he is re-elected there will be a new president and Donald Trump will have to leave office. If there is no November election who will take his place? It falls to rules of succession that have never been tested, little known technicalities, and deep magic to choose who will sit in the Oval Office.
Remember the Electoral College I mentioned earlier? If you'll recall civics class, you're remember that The United States is not a direct democracy- we use an Electoral College to elect our president. Agree or disagree with the process, it's the one we have and it may in fact be the only thing that saves us. Or it could be the wrench thrown in the machine that makes everything even more complicated and plunges us back in to the dark ages.
Even without a November election State Legislatures can still appoint electors to the Electoral College, meaning that there could still be presidential votes cast in the EC, even if there are no popular votes- however, all states may not be able to appoint electors if they choose not to hold a state election. It all comes down to decisions made in their respective state legislatures. This would mean that less than 50 states are represented. Under our Constitution this would still count as an election as the requirement is simply that the winning candidate receive the majority vote from the electors, not the majority of POSSIBLE electoral votes. This has in fact happened a total of 165 times in the history of the Electoral College. It's what is refereed to as a "Faithless Elector"- a situation where the elector either votes against the way he has pledged to vote according to the popular vote and instead votes for another candidate, or he refuses to vote at all. In the year 2000 one elector chose the latter and abstained from voting.
Currently, if all electors vote then the magic number to win the presidency is 270. If there are fewer than 50 states participating then that number will be lower.
OK, so even without a November election we can still elect a president thru the Electoral College....right?
The 12th Amendment states that "the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the [Electoral College] votes shall then be counted… 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.”
So in order to count the votes the House Of Representatives is constitutionally required to be present, and in fact, could ultimately choose the president in the event of a tie.
Here's the kicker.
If there are no elections by January 3, 2021 there will be no House Of Representatives. Unlike the Senate which staggers its elections so that only about 1/3 are up for re-election in any given year, all House Of Representatives seats come up at the same time. This means that 435 seats will be open for the House and 35 seats in the Senate. On January 3, 2021 all of those Representatives and Senators are required by law to step aside. If some states decide to hold November elections and some states don't then only those states would have anyone in the House. According to House rules, they cannot call the House in to session unless half of its members are elected. If they aren't able to convene by January 6, the date specified to count the votes from the Electoral College, then constitutionally we cannot count the votes and in the event of a tie cannot determine the winner.
The Senate is a another story. It is what is referred to as a "continuing body" meaning that the majority of its members would remain in office, even without an election, and it can continue to operate with its remaining members.
Two Senators are currently serving out appointed positions in unexpired terms due to retired or deceased members. This means that there will only be 65 continuing members in January. Of those remaining members 35 are democrats meaning that the democrats would go from a minority position to a five seat majority.
This is where it gets really interesting. The constitution allows Governors to appoint Senators to temporarily fill in until the next election. If all of the Governors of the states with expired Senators appoint replacements from their own party then the new Senate would be split 50/50 Republican and Democrat.
Some of those governors also have terms expiring in January and will likely face political pressure to re-appoint the incumbent senators from their state, however I think you can count on at least some of the Democrat Governors to appoint Democrats to formerly held Republican seats which will still give a majority to the Democrats. In this case I expect, if it is in their best interest, the Senate will attempt to proceed with an Electoral College vote count even without the House Of Representative.
If the Senate does not proceed, or if it becomes tied up in a legal battle in the supreme court, then according to the Presidential Succession act, with no Vice President, the Speaker Of The House would be next in line. But there would be no Speaker of the House meaning the presidency would go instead to the Senate Pro Tempore. If we're assuming the Senate is Democrat held then that would most likely mean their most senior Senator, Patrick Leahy from Vermont, though it could potentially go to a younger senator.
Bottom line? If there is no November Election then we would still have a President, it just my not be a President we elected. To paraphrase The Dark Knight , we would not have the President we want but the President we deserve.
Stay tuned for Part Two in which I explain why I think there will be no November election, thus kicking all of this in to play and how it could potentially happen.
*The 1960 election didn't actually involve absentee ballots, but rather the scam worked like this: Someone would steal a blank ballot, fill it in with the “correct” names, and give it to someone promising them money and a drink at the bar if they turned in the already filled ballot and came back with a blank to be filled out for the next person in line. Absentee ballots merely take out the middle man and allow someone to look over a ballot to make sure it has the “correct” names, offer over some money, and then drop it in the mail.