Regardless of political leanings everyone’s aware of the attempt underway to prevent at least some states from certifying their Presidential Electors. This effort is to prevent anyone from getting 270 Electoral Votes when those certificates are opened and counted on Jan. 6, 2025. Especially if Kamala Harris would have the requisite 270 (or more) Electoral Votes. Someone failing to get to 270 would, under the Constitution trigger a ‘Contingent Election’ in the House of Representatives where each state’s House delegation casts a single vote. Thanks to geography and gerrymandering it wouldn’t matter if Democrats controlled the House. There would be enough states with GOP contingents to ensure a GOP President, in this case Trump. 270 is the ‘magic number’ everyone looks at. Except thanks to the Electoral Count Reform and Presidential Transition Improvement Act of 2022 that’s not necessarily the case anymore.
You probably know some key provisions of the Act. Things like making it crystal clear the Vice-President’s role is strictly ministerial and that although presiding the VP has no power to reject any slate of electoral votes presented. Or substitute alternate slates. Another thing is it’s a lot tougher to mount a challenge to any given state’s electors. It used to take only a single House member and a single Senator. Now it takes one-fifth of the members of both the House and the Senate. Still possible and with Trump all bets are off but still I think that’s unlikely. What I wasn’t aware of until reading an essay that was written for and appeared in the Wall Street Journal Saturday. It’s hidden behind a paywall but the author Rich Hasen has republished it in Election Law Blog.
It’s worth the short time it takes to read the whole thing. Hasen describes the likelihood of it being a rough post election time. He also delves into some of the antics in the works to keep states (some of them) from certifying their results, and why ultimately those efforts will fail. I hope he’s right about all that. I’m also heartened by the fact that as with Project 2025 itself conservatives have advertised their intentions. So, Democrats are already mobilizing to be ready to go to court. Still, we are in strange times and one never knows and I couldn’t shake one thought: What IF it’s really close in the Electoral College with Harris barely over the magic number of 270 and in at least one one state the GOP manages to not have it submit a slate of Electors? Hasen points out something I am ashamed to admit I didn’t know about the 2022 legislation:
In addition, under the 2022 Electoral Count Reform Act that Congress passed in response to the 2020 election shenanigans, if a state doesn’t certify its count, Congress must remove that state’s Electoral College votes from the tally of what counts as a majority. So a delay should not trigger a special election in the House to choose the next president…..
Well, that sure puts a new spin on things. Just to be sure I decided to check the legislation for myself. You can read the entire bill on Ballotpedia but here’s the relevant part. It starts on page 17 and concludes on page 18. I tried to copy it as formatted in the bill but all kinds of crap comes up so I’ll just type it out for you:
(2) DETERMINATION OF MAJORITY.—If the number of electors lawfully appointed by any state pursuant to a certificate of ascertainment of appointment of electors that is issued under section 5 is less than the number of electors lawfully appointed by the state, or if an objection the grounds for which are described in subsection (d)(2)(B)(ii)(I) 4 has been sustained, the total number of electors appointed for the purpose of determining a majority of 6 the whole number of electors appointed as required by the Twelfth Amendment to the Constitution shall be reduced by the number of electors whom the State has failed to appoint or as to whom the objection was sustained.
Whew! I didn’t promise reading text of legislation would be fun, but what all that boils down to is if a state(s) petulantly says in effect since Trump didn’t win we aren’t submitting electors and THAT means the election gets thrown to the House it might not work. Because 270 will no longer be the proverbial magic number! Let’s say a state with ten electoral votes doesn’t submit a slate of electors. THAT reduces (thanks to the new law) the number needed to win from 270 to 264. Think back to 2000, when George W. Bush barely cleared the bar. He got 271 electoral votes. It really can get that close, but it would take a wild ride to reshuffle the state’s electoral deck this year to make things that close again.
Still, you never know. And in theory it’s still possible that the election could be thrown to the House in which case we’re screwed. However, depending on the state(s) involved and the arithmetic a state where the GOP could block submitting a slate of electoral votes could still leave Harris short of 270 but still leading Trump! And again, depending on the arithmetic because the magic number would no longer be 270 she’d still win!
It’s unlikely to get that far as the 2022 legislation also provides for Governors to submit a slate of electors unless a provision in their state’s Constitution takes that authority away from them. This is where court challenges would come in but the law as I understand it doesn’t favor the asshats. There’s also clear language laying out a process for expedited appeals. SCOTUS itself must rule by the day before the Electoral College convenes, when everyone in the various states meet to cast their electoral votes.
The main thing is that it’s nowhere near a sure thing that one or more states somehow managing to NOT submit electoral votes to be counted and therefore preventing anyone from getting to 270 will wind up resulting in bunch of GOP controlled delegations overriding the will of the voters. I won’t sleep easy until I see President Harris and Vice-President Walz sworn in next January, but I’m breathing a little easier when it comes to this stunt the GOP has been working on. Hopefully it will ease your minds a bit too.
We need to be prepared to march on d.c. with any and every weapon imaginable to make good and damned sure these stupid fuck-wads do not steal this election. It’d help if dems came out in large numbers to watch the polls, election counts, etc. and especially to march on their state houses to make sure they put the fear of allah into legislatures thinking about cheating: make sure those red states know there is an immediate punishment for treason because that is what it will be. One way or another red states need to be turned blue and if it is by getting rid of treasonous ‘pubes/magats from state houses in the appropriate way, GOOD.
Everyone seems to be under the delusion that running a good, joyous campaign will turn traitors into law-abiding citizens. It won’t. These fuckers need to be put under a microscope when they attempt what they will attempt. And when they attempt treason, they must face the backlash right quick. Anything less and we might as well not even show up at the polls this November.
Yup, the kid gloves need to come off (forever) and the brass knuckles go on. We’ve been bullied far too long already.
This is further proof that we need a constitutional amendment to get rid of the Electoral College. The President should be elected by the popular vote like every other office.
That would put an end to this monkey business and take away the fact that about 10,000 people in five states determine who wins the election.
One person, one vote!