Updated November 15, 2020
For details on how Reublicans are tring to delay vote counting and certification, see
1) Daniela Santamariña and Elise Viebeck, “Here’s how long it could take to certify the vote in key states — and the GOP efforts to upend that process; Legal experts say there is little that President Trump can do to head off President-elect Joe Biden’s win, but Republicans could seek to delay the process,”Washington Post, November 12, 2020 ((5:35 PM).
2) Trip Gabriel and Stephanie Saul, “Could State Legislatures Pick Their Own Electors to Vote for Trump? Not Likely; Some Trump allies have suggested that Republican lawmakers should override the will of voters who elected Joe Biden the next president,” New York Times, November 13, 2020 (12:45 p.m. ET).
3) Jamelle Bouie, “2020 Shows Why the Electoral College Is Stupid and Immoral; It doesn’t just distort presidential elections. It infects the entire political process,” New York Times, November 13, 2020.
4) Fred Hiatt, “Trump is putting this country through something unprecedented. Here are three scenarios,” Wahington Post, November 15, 2020 (01:00 a.m. ET).
What strategy are Trump and the Republicans following by not recognizing Biden’s clear victory at the polls?
After researching the 12th and the 20th Amendments and the mechanisms of the Electoral College vote, the answer became blazingly clear.
They are trying to delay the counting of the votes at the state level, by any and all means possible. By lawsuits, which could drag out enough to delay the final count and certification of the vote beyond the December 14 date for the meeting of the Electoral College, which involves the casting of electoral votes in separate meetings in each of the states. Normally they vote for the candidate which received the highest number of votes in the respective state. Many states have laws requiring electors to vote in this manner.
However, if Biden cannot marshal a majority of 270 Electoral College votes on that date, under the terms of the 12th and 20th Amendments to the Constitution, the election of the President is thrown to the House of Representatives in what is known as a “contingent election”. There, each state has one vote, which is determined by a majority of the representatives in the state.
Because there are more states with a majority of Republican representatives than there are states with a majority of Democratic representatives, the “contingent election” could result in the election of Donald J. Trump as President of the United States, provided all of the Republican states went along with the scheme.
That is the logic behind the strategy Trump and the Republicans are following.
To achieve their goals, they would be using anti-democratic techniques, including bad-faith allegations of massive fraud where no fraud exists. These techniques range from the filing of spurious lawsuits in bad faith, to calls by the two Republican senators of Georgia for the dismissal of the Republican secretary of state because he was doing his job, in order to force him into acceding to their demands that will probably result in further delay in the certification of vote results.
However, there is an important wrinkle. In the “contingent election” for the President in the House, “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.” The precise numbers here would have to be figured out to understand how this would work in practice with the newly-constituted House.
In the “contingent election” for the Vice-President in the Senate, “a quorum for (this) 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.”
Consequently, how Trump wins is not as clear as it might at first appear. In what looks like a legal mine field, there is probably a significant possibility that the Supreme Court could get involved.
Nonetheless, despite these quorum requirements, both House and Senate Democrats would need to be extraordinarily careful.
If a quorum of two-thirds of states with one or more representatives is present, the House could elect Trump as President.
In the Senate, a majority of the Senate could elect the Vice-President, provided a quorum is present. ” A quorum for (this) 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.”
If there is no President, the Vice-President could then serve as President, in the same manner as if the President had died.
For a detailed analysis, see
Congressional Research Service, “Contingent Election of the President and Vice President by Congress: Perspectives and Contemporary Analysis, Updated October 6, 2020
The 12th Amendment provides:
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 the 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.
It thus appears that in 2021 a majority of the states in the House would vote to elect Trump.
There is an importnat wrinkle, however. Two-thirds of the members of the House must be present to constitute a quorum.
The 20th Amendment provides:
Presidential Term and Succession, Assembly of Congress
Passed by Congress March 2, 1932. Ratified January 23, 1933. The 20th Amendment changed a portion of Article I, Section 4, and a portion of the 12th Amendment
The terms of the President and the 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.
The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.
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 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.
The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.
For a satirical comment, see Sarah Cooper’s Tweet, “I’m a lawyer for the Trump campaign, November 16, 2020.
The Trenchant Observer