Here We Go Again

I keep thinking of the election this way:

Harris has only a 55% chance of winning -- Trump has a 45% chance of winning, outright.

But on top of that, I give AT LEAST a 10% chance that Trump's fuckery will significantly disrupt the transfer of power, EVEN from Biden to Harris. https://t.co/10NTwv5ZPG

— emptywheel (blue tang) (@emptywheel) October 12, 2024

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 of 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. [And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President.–]The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

The 12th Amendment always applies to a Presidential election. Its provisions for a vote in Congress to select the president is activated only if neither candidate gets a majority of the electoral votes. Absent that, it isn’t triggered, except to establish the candidates with the most electoral votes wins the office.

 Via the National Archives

Under Federal law, an objection to a state’s electoral votes may be made to the President of the Senate during the Congress’s counting of electoral votes in January. The objection must be made in writing and signed by at least one-fifth of the Senators and one-fifth of the members of the House of Representatives. Only two grounds for objection are acceptable: that the electors of the State were not lawfully certified under a certificate of ascertainment, or that the vote of one or more electors has not been regularly given. Both the Senate and the House of Representatives debate the objection separately. After the debate, both the Senate and the House of Representatives rejoin and both must agree to reject the votes.

This is the law as reformed after 2021. Before, only one Senator and one Representative had to object to trigger a challenge. Now any objection to any state's slate of electors has to get 20 Senatorial signatures, at least, and at least 87 Representative signatures. They have to show the electors were not lawfully certified, or the vote of at least one elector was not regularly given. These were not the grounds under the Electoral Count Act in 2021. The grounds have been severely narrowed. 

If the votes are rejected after a vote of each House (both must agree separately, and jointly), the electoral votes of that state are rejected and the number available reduced accordingly. Which reduces the number needed to win for both candidates. The number of challenges needed to finally make the loser the winner would be large, indeed. Only if you can reduce it to an equal number of votes, is the 12th Amendment mechanism involved. There is an argument that the ERCA conflicts with the 12th, but the Act reduces the number of electors appointed, so the conflict may be a wishful one at best.

The Congress seated now won’t be the Congress in 2025. That may, or may not, dramatically change the odds of serious challenges to the electoral college count. But the odds of challenges serious enough to change the outcome of the election are slim to none. The GOP is expected to win control of the Senate, but even if they do, the House may be controlled by the Democrats. If Harris wins, the House won’t vote to elect Trump (under the Act, not the 12th). Even 107 Republicans can count votes and know their victory with 107 votes would be a Pyrrhic one. In fact, I’m sure Senators and Representatives voted in 2021 to challenge the electoral vote knowing it would come to nothing.

So, again, what mechanism does Trump use to win if he loses? Even the Capitol riot didn’t accomplish that. The right wing lawyers lost in 2020, and are themselves facing criminal charges, along with the fake electors they championed. I’m sure there are new lawyers willing to file futile lawsuits (so long as they get paid). I doubt there are many who want to face criminal charges and disbarment proceedings. I’ll boldly predict Trump has 0% chance “Trump's fuckery will significantly disrupt the transfer of power, EVEN from Biden to Harris.”