The Cloak of Constitutionality

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Our Only President has evidently invited Michigan State Legislators to the White House, presumably to ask them to legislatively impose a slate of electors that is not the slate certified by the Michigan Board of Electors.

As the calendar has moved forward from November 3, as the votes have been counted and in some cases recounted, as the Committee to Re-Elect the President has lost case after case in court, it has become clear that there is not going to be a cloak of Constitutionality around any putative attempt to retain power. Either the current occupant will leave office at the end of his first term, or there will be an outrageous usurpation. The election, it turns out, was not close enough to steal.

As I understand it—and this is mostly from Professor Rick Hasen’s Election Law Blog—the law concerning Presidential Elections says that in a case where there are two competing slates of electors from a state (for instance, if the State Legislature and the Governor were each to ‘certify’ a slate of electors) the Governor’s slate is supposed to be accepted. Which means that if the Republican-majority State Legislatures in Michigan, Pennsylvania and Wisconsin were to pass such legislation after publicly stating that they would not do it, that their Governors (who are all Democrats) would simply certify the original electors and the Federal Congress would be compelled by the law to count the votes certified by the Governor.

Think, now, about how many elected officials would have to put their careers on the line in order to get that far: In Michigan, it would require (assuming no Democrats choose to follow along with overturning the election) 56 of the 58 Republican State Representatives and 20 of the 22 Republican State Senators; in Wisconsin, 17 of 19 in the Senate and 50 of 63 in the House; in Pennsylvania, 25 of 28 in the Senate and 102 of 113 in the House. That’s 280 votes in states where, and I think this is important, Trump was so unpopular he lost the election. And they would have to do that knowing that the law requires the Congress to ignore their action. Could that happen? It’s possible.

It’s also possible that the Senate would refuse to follow the law, and either refuse to certify either slate or vote to accept the votes of the State Legislator’s electors. They would need every Republican Senator to agree to this travesty, but it’s possible. The House would oppose it, of course, so there would be a stalemate at that point. If that stalemate went on until January 20th, when the current President’s term ends, then the law states that the Speaker of the House of Representatives would resign and become Acting President. Or, perhaps, the Committee to Re-Elect the President would sue to have the Supreme Court compel the House to refuse to certify the electors that the law compels them to prefer, and that the Supreme Court would, indeed, put their careers on the table to overturn the election. That, too, is possible.

But at that point, I think it’s clear that the cloak of constitutionality would be gone. The thing that really frightens me is that, if people with power cannot keep power under that cloak of constitutionality, they may decide to try to keep power without it—and if they aren’t worried about keeping things hidden under that cloak, then a lot of unfortunate things become possible.

Tolerabimus quod tolerare debemus,
-Vardibidian.

2 thoughts on “The Cloak of Constitutionality

  1. Dan P

    Every once in a while that spectre floats through my brain, and the two stories I comfort myself with — not making claims on accuracy, please understand — are that 1) Our Only President has thoroughly disgusted great swaths of the senior military and spooks that would be necessary to perpetrate a gross departure from the Constitution, and b) Chief Justice John Roberts, for all that I’m wary of him, seems to have a sore spot about his legitimacy and the legitimacy of his court, and were any of his lesser colleagues inclined to void the Constitution in this manner, I would expect him insistently and perhaps permanently to recuse them.

    Reply
    1. Dan P

      (To clarify, by “to recuse” I’m talking “blood on the gavel,” not some procedural nicety, and I’m embellishing for effect. I mean, it’s the internet, I’ve got to tag my figurative language.)

      Reply

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