Tuesday, January 05, 2021

Closing Time

There's another argument in that New Yorker article that the GOP could delay the proceedings until they can invoke the 12th Amendment:

According to the Electoral Count Act, the fact that states certified their elections and appointed their electors by December 8th, six days before the meeting of the electors, means that those determinations “shall be conclusive.” But what does that mean? There has been little to no occasion for courts to interpret the statute since it was enacted, in the nineteenth century. Republicans could try to object to counting the electoral votes of each state in which Republicans have challenged Biden’s win by claiming fraud, irregularity, or unlawful election procedures. If Republicans were to attempt to drag out the January 6th joint session by objecting to individual states’ electoral votes one by one, and thereby triggering the two houses’ separate, hours-long debates on each of them, then it is possible, though unlikely, that the business of counting the votes wouldn’t be concluded in five days, at which point the Electoral Count Act says that the recesses for debating objections to votes must end.

At that point, the electoral votes that have been officially counted for Biden might not yet have reached the threshold of two hundred and seventy votes. At such a juncture, it is possible that some Republicans might attempt a maneuver to abuse the process provided in federal law, by insisting on reverting to the Twelfth Amendment’s provision that, if no candidate has a majority of electoral votes, “the House of Representatives shall choose immediately, by ballot, the President.” 

Again:  not so much.

First, while some Representatives seem hell-bent on destroying the Constitution in order to save it:

"You obviously know very little about investigations, good sir," said Higgins. "Investigations can take a long time ... we have hundreds of affidavits from thousands of pages, we've reached thousands of affidavits. To disenfranchise the words of thousands of citizens is disingenuous by you." 

Most of which have been rejected by the courts and, besides, there's the "deadline" and Bush v. Gore.  The time for investigations has run up against the statute and the doctrine of laches.  This issue precisely, in other words, has been litigated in the Constitutional system set up precisely to decide such questions.  Higgins is an ass.  As even the Senators recognize:

The senators appeared to agree to object to three or four state certifications, even though House members are pushing for six: Arizona, Georgia, Pennsylvania, Michigan, Wisconsin and Nevada.

The lawmakers are primarily focusing their objections on three states: Arizona, Georgia, and Pennsylvania, which is the only state that Republicans have so far secured a valid objection with a set House and Senate objector.

Senators agreed to raise objections to states with “constitutional deficiencies,” so the source noted that might mean Nevada won’t make the cut. But the source also noted that the senators wanted to wait and see how the debate and votes go after Pennsylvania, and then Arizona and Georgia before deciding if they will take up other states.

While senators appear to be less eager as the House members to make objections, the source noted that efforts like this can snowball in the House and ultimately put pressure on senators.

The GOP lawmakers did not discuss how long they wanted to draw out the objection process, but my source tells me that the senators weren’t excited about debating past midnight -- though 3USC16 allows for recesses to occur so they think that could solve this issue for them.

Lastly, Sen. Josh Hawley (R-Mo.), was NOT on the phone call, with my source describing him as a “wild card” in this process. Hawley was the first senator to join House Republicans in objecting to Congress’ certification.

Raising objections and winning enough votes to throw this into the House under the 12th Amendment are two very different things.  And there's the question of whether the leadership will allow a minority of Representatives and Senators to object this matter into the House for resolution.  But the 12th Amendment says the electors "as appointed" are counted.  "Appointed" is a term clear under Constitutional law:  it means the electors selected by the states under their state laws.  "Appointed" does not mean "those approved by action of Congress.” Congress' role is purely ceremonial.  It does not approve the only slate of electors before it.  It only accepts what the states have done in the election and what the electors have voted on.  Congress has no role in deciding which elector's votes are accepted and which are not, especially in the absence of competing slates of electors (there are none this time).  "Evidence" of fraud will not be presented on January 6; only allegations (at best) will be presented.  Hawley and Cruz are not really interested in changing the outcome of the election.  They are interested in getting the backing of Trump's "base."  But they lose much more than that if they throw the entire process into chaos and act to usurp the will of the people by declaring the entire election void, whether or not they have that authority (they don't).  Even as I type the discussion in the nation is about the breakdown of the process for distributing the covid-19 vaccine, the complete clusterfuck that this rollout has been.  Some of us are old enough to remember the polio vaccinations in the '60's, and we can't get our heads around the complete inability of the government to function this time.  Throwing out the entire results of a Presidential election is orders of magnitude more chaotic than that.  Rep. Higgins may not fear that chaos, but even Ted Cruz is not that insane.

And while 140 GOP Representatives might be crazy enough to want to object to 6 or 8 or 10 states, it will take at least one Senator to agree for that objection to take hold.  If the Senators decide this is a bootless effort, it's over, whether or not they can get recesses to go to dinner or something.

Fortunately we don't have to rely on the goodwill of Ted Cruz or Josh Hawley.  The worst nightmare scenarios cannot come to pass, as a matter of law.  (As I say, the 12th only enters into the issue when there are competing slates of electors, or where there is no majority for one candidate.  Neither of those scenarios exist under the current circumstances.  All Congress can actually do is screw the process into the ground and leave Speaker Pelosi becoming President Pelosi on January 20.  Don't think Cruz and Hawley don't know that, too.  Higgins is an ignorant bottom-feeder who shouldn't hold public office, but he doesn't have the power to coerce Cruz and Hawley enough to ignore that point.)

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