I Got A Lotta Problems With You People!

So, the plan is to have an Electoral College tie (which will likely require contesting swing state vote counts).

A tie in the Electoral College will then require a vote in the House of Representatives, where the GOP, led by Speaker Johnson, has a (thin) majority.... https://t.co/ZlsRJBdScZ

— Melissa Murray (@ProfMMurray on Threads 🧵) (@ProfMMurray) October 28, 2024

Two problems with all this handwringing:

First: I’d expect a ConLaw professor to know Mike Johnson is not automatically Speaker in 2025. That will require a vote of the new House sworn in on January 3rd.

Second, you have to get to a tie coming into J6. Not impossible, but how do you engineer that? Complain about the outcome? Storm the meeting of the elected college? Storm the Capitol on J6? Been there, done that. How did it work out for Trump?

What else ya got?

At his racist MSG rally, Trump spoke of the “little secret” he and Mike Johnson would unveil after the people’s Nov 5 votes have been cast.

He made clear it would involve the House — and how he plans to use its 50’State delegations to wreak havoc and hand him back “his” power.

— Laurence Tribe 🇺🇦 ⚖️ (@tribelaw) October 28, 2024

Okay, that invokes the 12th amendment.  Let’s look at that:

The Electors shall meet in  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.

This is why January 6, is January 6. I cut off the language about the House electing the President, because to get there, you have to get here: “and if no person have such majority….” That usually means a tie, since 270 is a majority, and with only two candidates, if both parties get less than 270, it’s a tie. I suppose you could start throwing slates out. But that involves the ECRA. How else do you get there? By throwing doubts on the election?

Historian Heather Cox Richardson in her popular Substack newsletter wrote: "It seems possible—probable, even—that Trump was alluding to putting in play the plan his people tried in 2020. That plan was to create enough chaos over the certification of electoral votes in the states to throw the election into the House of Representatives. There, each state delegation gets a single vote, so if the Republicans have control of more states than the Democrats, Trump could pull out a victory even if he had dramatically lost the popular vote."

Sure, that’d work; if not for the ECRA.

First you have to go through the ECRA. You know, 1/5th of the House, 1/5th of the Senate, then each chamber a majority, then the whole Congress a majority. And then all you do is toss out a state’s slate. You don’t replace it, you lose it. How many Reps and Senators want to do that to their voters? Especially when it just lowers the number of electoral votes available. It doesn’t create an opening to present an alternate slate. You just trash your own constituents votes. Who wants to run on that record in two years?

Yeah, Trump’s lawyers might challenge the constitutionality of the statute.* But they can’t do that until the statute is used against their interests. (Bringing the case pre-emptively would be seeking an “advisory opinion,” something courts don’t do. Even if the Court decides a Constitutional issue can always be decided, Congress could just adopt the ECRA as its rules, and you’ve wasted a lawsuit. It’s probably the one thing that would unify Congress to do so.) If the case comes after J6 (when the “harm” is done), no Court is going to reverse the result of an election, even if they find the statute unconstitutional.

So do we ever get to the “nightmare scenario”? How, pray tell?

The fact is, you just can’t “create that much confusion.” Not unless the vote count is on your side already (and then, who needs it?) Even challenges to state vote counts go through the ECRA now (again, that’s how the Supremes stopped the Florida recount, even though the Florida Supreme Court authorized it. Federal law trumps state law on federal election questions, and the old ECA set a deadline Florida couldn’t ignore. That will come around again, to stymie Trump.**).

These are all good reasons to vote for Democrats. They are not good reasons to fear the future.

*The new Congress could agree to adopt the ECRA as their rules, which would make it bulletproof.

**This is why Trump is challenging state procedures in state courts now. After Election Day, the ECRA controls those challenges. Even now, federal law barring changes to election law is stopping states like Virginia and Georgia from messing with voter rolls and counting ballots. Elections are a complex web of laws, both state and federal. Imagining Trump overthrowing the system is like imagining Rambo defeating the Viet Cong single-handedly. Maybe in the fevered imaginations of MAGA, but never in real life.