CategoriesSpeaking With Constitution

What January Brings

“On the first of January let every man gird himself once more, with his face to the front, and take interest in the things that are and are to be, and not in the things that were and are past.”

―Henry Ward Beecher

On January 1, 2021, the new year will begin, in both Kentucky, and around the nation.  I will, of course, address the many things afoot in Kentucky in the new year in another post, and instead turn my attention to things on the national stage.

On January 5, 2021, the U.S. Senate races in Georgia will end.  At stake: control over the Senate, and, perhaps (as explained below), an undivided government for Democrats.  The Democrats have to win both Senate seats on January 5, 2021, to control the U.S. Senate.  I will leave commentary about the results and outcomes to another post, and instead ask the question, what if they win?  We can expect the enactment of left-leaning policies to be a given in such a scenario. 

More concerning to me are more irreversible and extreme measures: court packing at the U.S. Supreme Court, statehood for Puerto Rico and D.C., and other measures.  Some of these items raise concerns at a constitutional level.  All of the more extreme measures would require the support of “moderate” Democrats (or at least a few Democrats in deeply red states who would have to vote to end any chance of their own re-election to enact this extreme national Democratic agenda).  Again, some of these items deserve (and will receive) their own post.

And then there is January 6, 2021.  The time for lawsuits over the Presidential race is over (and, to be honest, was over about the time the electoral college cast its votes in early December).  The internet and social media is chalk full of people angry about the election, most of whom believe it was stolen.  Certainly, numbers and voting trends raise cause for suspicion.  But hard proof, submitted into court under the rules of evidence, is what counts, and my review of that evidence was that there was too little of that, it seemed to me, too late to make a difference.

But then we recently saw the live hacking of Dominion voting machines at election hearings in Georgia.  We know vote totals raised suspicion about voter fraud.  We saw videos that seem to suggest vote tampering by election workers pulling trays of votes from out from under the table.  And we have seen recent suggestions of vote printing operations incinerated by fire.  In other words, a great deal of smoke, or, in the law business, what I would call a fair bit circumstantial evidence.  But most of that evidence came to light after the electoral college cast their votes.

Which turns all attention to Congress and January 6, 2021.  Why is that important?  That invokes the provisions of the U.S. Code that govern Presidential elections.  Specifically, 3 U.S.C. Section 15, provides:

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 what does this first part mean?  They will open and count the votes.  Some states submitted joint slates of electors (I think Pennsylvania, Michigan, Georgia, Arizona, and Wisconsin): one set by Republican legislators, and another by executive branch officials in those states.  They will, presumably, open them all.

The statute, 3 U.S.C. Section 15, continues:

Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. 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.

We have seen recently calls for a U.S. Senator to object, along with dozens of members of the House.  Senator Josh Hawley recently committed to doing so.  These calls are driven by this same statute, and the requirement for signed objections by a Senator and a member of the House.  The objections have to be stated “clearly and concisely” and “without argument.”  Presumably they will be.

So what happens next?  The statute, 3 U.S.C. Section 15, provides:

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, in effect, means that both the House and the Senate need to agree.  That seems to make short work of the objections initially because it is impossible that the U.S. House will agree with the Senate, if the Senate is even inclined to sustain objections.

But there is yet another provision in this statute, 3 U.S.C. Section 15:

But 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.

So, all things being equal, they will turn to the certifications of the executives.  To my knowledge, the executives have not yet weighed in.  But if we get to this point, and if the executives (the Governors) made certifications along party lines (something that is far from certain), then Pennsylvania, Michigan, and Wisconsin would presumably vote for the Democrats, while Georgia and Arizona would vote for the Republicans.

That still does not move the needle: it would mean 279 votes for Biden, and 259 for Trump.

So what is the end game with these exercises?  The Twentieth Amendment.  It 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.

If the Senate and House deadlocked, there is an argument that the procedure in 3 U.S.C. Section 15 is not valid. Instead, the suggestion is that the language above means that Vice President Pence gets to count.  There is certainly no case law on this.  And, if he were to throw out enough states votes, it then falls to a roll call in the House by state to select the President, where the Republicans win.

It seems to be a narrow path to take.  It presumes that Vice President Pence is on board with it (something he may not be, though his cancellation of his trip to Israel recently is interesting).  It presumes that the Senate cannot and does not overrule him as to vote counting (the Senate can always overrule a ruling of the President of the Senate by majority vote but what does that look like, particularly with the Georgia races on the line that may tip the balance of power upon election certification).  It presumes that the Supreme Court would hold provisions in 3 U.S.C. Section 15 that appear to potentially contradict with the Twentieth Amendment unconstitutional (allegedly, there was screaming recently over the Texas case coming from the Justice’s conference about the need to stay out of the election).  Which is to say, that is a whole lot of presumptions.  But that is the path that it appears we may be headed down.

Happy New Year.