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Can the Senate (or VP Pence) overturn the election?

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  • 30-12-2020 1:37pm
    #1


    I see a lot of chatter about this notion that Pence as the leader of the senate, could on Jan 6th overturn the election or indeed, the republican controlled senate.

    How true is this? I can’t imagine the senate, the VP or well, anyone can just change the result? Doesn’t seem like there’s any real sense to an election that way. I’m definitely not fully up on everything regarding US elections but the senate is literally just meeting on the 6th to count the electoral votes independently of the electoral college right? It’s just a formality thing, I guess to double check the numbers?


Comments

  • Registered Users Posts: 16,567 ✭✭✭✭astrofool


    overheal has it covered on the other threads, but no, they can't, they're essentially just the chair and can only ratify the result put in front of them, not change it to their own result (otherwise the whigs would still be in charge... :)).

    This is just a grift to extract as much money as possible from the people who are stupid enough to give money to "billionaire" donald trump. It's also highly likely this thread will be merged to others.




  • astrofool wrote: »
    overheal has it covered on the other threads, but no, they can't, they're essentially just the chair and can only ratify the result put in front of them, not change it to their own result (otherwise the whigs would still be in charge... :)).

    This is just a grift to extract as much money as possible from the people who are stupid enough to give money to "billionaire" donald trump. It's also highly likely this thread will be merged to others.

    Not too surprised it’s all money lol. :pac:

    I did try searching but couldn’t find a super clear answer, obviously didn’t search hard enough! But nice to see it’s about what I expected & it’s all just a big play act.


  • Registered Users Posts: 82,268 ✭✭✭✭Overheal


    In short, no, the VP and the Senate cannot, without the House of Representatives, overturn this election. Not, unless, Vice President Pence himself were to attempt to violate the law by failing to carry out his prescribed duties as listed in the 12th amendment and in the 1887 Electoral Count Act, codified in the US Code as Title 3 Chapter 1, and written pursuant to the Necessary and Proper Clause in Article I of the US Constitution:
    The Congress shall have power to [...] make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

    I think my interpretation is pretty robust and have tested it in debate elsewhere. You don't need a Juris Doctor degree to interpret the relevant law - just patience

    The claim made by Arizona GOP for instance is, that Pence can simply 'just not count,' the electors for Biden. And, there are a lot of people claiming (without evidence) that it was against the law for the governors to certify those electors. This fails immediately under the 12th Amendment:
    -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;

    So then, the argument goes, well 7 'states' sent alternate electors to Congress, and therefore the argument goes, a decision must be made which to count. Well, this is untrue for more than one reason. The first is that no State actually did that. State Republican parties did. The argument is that a caucus of Republican lawmakers makes them the Legislature (it does not, any more than "The Squad" is itself The United States Congress, or Bernie Sanders himself being the Senate). To have any chance of legitimacy on the 6th, the State Legislatures would have had to have passed a new Act, Resolution, Bill, etc. that instructs the Executive of State to change certification of the election (or to otherwise try to claim as a Bicameral Legislature that they are re-asserting their "Plenary" right to appoint the electors "in such Manner as the Legislature thereof may direct," (Article II). They almost certainly can't pull that off after the Electors have already met, under Bush v Gore, but I'll get to that in a footnote.*

    That situation would trigger a bit of a counting crisis under the ECA:
    but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law

    Because, the House and Senate would likely not vote in agreement on which of the 2 slates to count. Therein lies the possibility of discounting the State entirely.

    However, since the 2nd slate is not certified and was not therefore given as provided by Section 5:
    If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.

    That means the Vice President would potentially be counting/opening 2 slates, 1 certified and 1 not. The Chambers would vote, and the House would disagree with Senate Republicans (Unless 'RINOs' put an end to it right there), in which case:
    if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.

    Why the Executive, if the Legislature has the plenary power? Because, the ECA requires it, and commensurately each state's election law instructs the governor to perform this function under their State law:
    It shall be the duty of the executive of each State, as soon as practicable after the conclusion of the appointment of the electors in such State by the final ascertainment, under and in pursuance of the laws of such State providing for such ascertainment, to communicate by registered mail under the seal of the State to the Archivist of the United States a certificate of such ascertainment of the electors appointed, setting forth the names of such electors and the canvass or other ascertainment under the laws of such State of the number of votes given or cast for each person for whose appointment any and all votes have been given or cast; and it shall also thereupon be the duty of the executive of each State to deliver to the electors of such State, on or before the day on which they are required by section 7 of this title to meet, six duplicate-originals of the same certificate under the seal of the State; and if there shall have been any final determination in a State in the manner provided for by law of a controversy or contest concerning the appointment of all or any of the electors of such State, it shall be the duty of the executive of such State, as soon as practicable after such determination, to communicate under the seal of the State to the Archivist of the United States a certificate of such determination in form and manner as the same shall have been made; and the certificate or certificates so received by the Archivist of the United States shall be preserved by him for one year and shall be a part of the public records of his office and shall be open to public inspection; and the Archivist of the United States at the first meeting of Congress thereafter shall transmit to the two Houses of Congress copies in full of each and every such certificate so received at the National Archives and Records Administration.

    ... in summary, this section instructs the Governor to get the certification to DC, where it is received by the National Archives, which are the returns that the President of the Senate opens and reads from. The National Archives do not register receiving any alternate electors under § 6. So while I'm open to being wrong an that particular point: I do not believe Pence will even have the alternates on hand to even attempt to count, simply in that regard.

    This is also where people get confused about the 1960 election: Because, Nixon counted the electors for JFK. But, they fail to note, both slates were given by the Governor, and certified under Section 5. Nixon also did it as a 'suggestion' that “without the intent of establishing a precedent,” and it was agreed to by unanimous consent of Congress. So, for 2020's purposes, 1960 is a moot footnote.

    Therefore, it comes down to objections to whether the certified electors were 'regularly given,' which still would require the consent of the House Democrats:
    Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified.

    This is where most skeptics get confused. They think that, objections to the count are voted on in the House by State Delegations. This is a conflation of events in the 12th Amendment:
    –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.

    It is only after the counting, and if Biden or Trump do not have a majority of electors, that the House chooses by ballot, the President. It is that ballot, that is done by State Delegation:
    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 anyone is still, really really skeptical about that, we have recent historical precedent. On January 6, 2005, a number of House and Senate Democrats objected to the count of Ohio's electors. This triggered a debate under § 15 and the House held a vote whereby a majority of 267 members voted against the objection, as did the Senate, and thus the objection was soundly defeated without the State delegations voting for the next President under the 12th amendment contingency (which itself was last used, iirc, in 1876, dozens of times over in the election of Tilden/Hayes, that ended in the 1877 Compromise).

    Rep. Louie Gohmert (R-TX) is 'suing' to have a court order that the 1887 Electoral Count Act, therefore, as unconstitutional. Thereby trying to have the count of the election, simply come down to the language in the counting clause of 12A above. It's a nakedly political stunt, though. Gohmert joined the Congress just 2 days before the 2005 joint session of the count. He has since been a member of Congress, for that and 3 other subsequent Electoral Count Act stipulated events. It is, for example, § 15 itself that stipulates the date!
    Congress shall be in session on the sixth day of January succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o’clock in the afternoon on that day, and the President of the Senate shall be their presiding officer. Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A; and said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from the said certificates; and the votes having been ascertained and counted according to the rules in this subchapter provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses.

    So, suffice to say Gohmert's lawsuit, if it even has Standing(?), fails spectacularly on Laches. Nevermind that it's been law for 133 years and used in 32/33 subsequent general elections! He didn't have a problem with Bush being counted in again this way, or Obama (twice), or Trump, in 2017, When Joe Biden himself was the President of the Senate and carried out these duties, finishing out the session to a standing ovation from Republicans. Congressional Records prove Gohmert was at his first January 6, 2005 session of the count, and recorded a Nay vote to the objection to discount Ohio's electors. Records also show he was there on January 6, 2017 as well.

    *As for, whether or not a State Legislature can reclaim it's plenary authority after the electors have met and the voters have already voted, is a matter that appears to have been inadvertently decided in Bush vs Gore, 2000:
    The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. U. S. Const., Art. II, §1. This is the source for the statement in McPherson v. Blacker, 146 U. S. 1, 35 (1892), that the State legislature’s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by State legislatures in several States for many years after the Framing of our Constitution. Id., at 28–33. History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35 (“[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated”) (quoting S. Rep. No. 395, 43d Cong., 1st Sess.).

    The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another. See, e.g., Harper v. Virginia Bd. of Elections, 383 U. S. 663, 665 (1966) (“[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment”). It must be remembered that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 U. S. 533, 555 (1964).

    And, be it noted that the SCOTUS has Constitutional power of Judiciary Review, affirmed in Marbury v Madison (for those who then scoff at the 'activist judges' of the Trump dominated supreme court)

    In effect, the Legislatures here would be attempting to treat Trump votes as more legitimate than Biden votes. Their justification for that seems to be vague allegations of "massive fraud," and it is not, for instance, even a circumstance where a recount has shown Trump in fact winning those States - they haven't. A legislature cannot simply say 'your votes are sus and yours are not,' it would have to adjudicate each ballot, not regard entire pools of ballots as fraudulent because the pool of ballots was allegedly tainted with a yet-undetermined (if any!) number of illegal ballots. That therein lies the whole "Mickey Mouse" argument Rudy Giuliani makes on television (but not in court) - ie. once the outside envelope is verified, adjudicated and opened, it is anonymous.

    So it boils down to one question: Can Rudy, Trump, Sidney Powell, Lin Wood, etc., convince enough House Democrats to vote with an objection to not count a State's certified electors? But, we all know the answer to that. The real noodle would have been, “how would this have played out if Republicans controlled both chambers of Congress?”


  • Registered Users Posts: 82,268 ✭✭✭✭Overheal


    GA held yet another hearing. Sound like it was a circus (thread):

    https://twitter.com/andrewfeinberg/status/1344323024770781185?s=21


  • Registered Users Posts: 82,268 ✭✭✭✭Overheal


    Another smashing thread that tears Gohmerts lawsuit to ribbons but this stuck out because of research for the post above:

    https://twitter.com/akivamcohen/status/1343770004970471429?s=21

    ...But Gohmert already voted in one. In 2005, and did not complain about his rights being violated. The congressional newspaper/record linked above for 1/6/2005 proves that he was a Nay on that vote. Might even be his first vote as a Congressman.

    Anyway, this Twitter thread is worth a skim, the lawsuit is comically bad, and like so many others, almost intentionally meant to fail.


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  • Registered Users Posts: 82,268 ✭✭✭✭Overheal


    “What if Pence just shorts a fuse and decides to ignore statute or misinterpret his role”

    That would be an attempt to force the ‘contingent election’ in the house on a 1 vote per state basis. In that case I’ve heard claims of so and so number of state delegations being Republican. That has a quorum problem, though:
    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.

    Biden won 25 states and only needs 17 to boycott any scenario where Republicans try to maneuver the country into an election-by-House in the 12th amendment. This maneuver would force them out of office on the 20th and the house speaker would take the oath until the matter was settled:
    The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.
    ^ This supersedes the 12th Amendment where it says, "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 the case of the death or other constitutional disability of the President."
    If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.
    If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.

    The less clear bit is who is the acting Vice President/President of the Senate in that scenario. Doesn't leap out at me in the law here.




  • The big day is tomorrow! :pac:

    Already have trump saying he “won’t like him [pence] as much” if he doesn’t overturn the election. There’s something terrifying about a president who doesn’t understand how their countries elections work..


  • Registered Users Posts: 17,913 ✭✭✭✭VinLieger


    The big day is tomorrow! :pac:

    Already have trump saying he “won’t like him [pence] as much” if he doesn’t overturn the election. There’s something terrifying about a president who doesn’t understand how their countries elections work..


    Its not even that he doesn't understand, which he definitely doesn't, its that he doesn't care how elections works, he thinks he should be president therefore that's what should happen.


  • Registered Users Posts: 20,397 ✭✭✭✭FreudianSlippers


    Overheal wrote: »
    The less clear bit is who is the acting Vice President/President of the Senate in that scenario. Doesn't leap out at me in the law here.

    It's actually more clear if you look at section (b) by the use of the word "pro tempore" in relation to the President of the Senate. So therefore, the line should be (1) the new Speaker of the House first in line as they are elected prior to the certification of the results in the Senate and (2) the President Pro Tempore of the Senate (because obviously, no POTUS no VPOTUS) Chuck Grassley.

    Yikes, imagine that.

    As you've correctly pointed out however, it's moot in the current thread - I could only ever see this happening (and I think it only ever has happened) where there are multiple deaths.


  • Registered Users Posts: 82,268 ✭✭✭✭Overheal


    It's actually more clear if you look at section (b) by the use of the word "pro tempore" in relation to the President of the Senate. So therefore, the line should be (1) the new Speaker of the House first in line as they are elected prior to the certification of the results in the Senate and (2) the President Pro Tempore of the Senate (because obviously, no POTUS no VPOTUS) Chuck Grassley.

    Yikes, imagine that.

    As you've correctly pointed out however, it's moot in the current thread - I could only ever see this happening (and I think it only ever has happened) where there are multiple deaths.

    Thanks, it was late and the pro tempore language was vexing me. My thoughts about the line of succession had previously never gotten that far, nor had I ever studied it.


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