This may the most important week in 80 years, at least 40. On December 7, 1941, America was attacked; on June 6, 1944, America confronted an existential threat; on January 20, 1980, America regained moral footing, inaugurated Ronald Reagan. What now? Three big things.
First, January 5th is the last line of defense – against one-party government. We either hold the line or lose it in Georgia, an all-or-nothing battle for two Senate seats. If one Republican Senator is not elected, Senate control goes to the left.
As Democrats control the House and expect the White House, that would be a trifecta. Biden-Harris-Pelosi-Schumer socialism would run the table – mandates rivaling FDR’s emergency authority in WWII, confirmation of leftists, court packing, spending headed for Weimar-like hyperinflation. Students of history understand the stakes. Pray Georgia voters do.
Second, on January 6th at 1:00, a joint session of Congress convenes to “count” – and challenge – electoral votes. Never in modern history, at least since 1876, has so much depended on this day.
With fraud allegations rampant – relating to unprecedented use of tens of millions of mail-in ballots, Democrat electoral practices, questions of electoral constitutionality (including violations of the12th Amendment), and possible machine tampering – the day will be spellbinding.
The process boils down to this. Multiple slates of electors, certified by governors, will be challenged, probably one by one. In some states, dueling slates exist – one certified by a governor, one not. If one member of the House and one Senator challenge a state’s slate, the joint session disbands – reconvening separately to debate and vote.
Notably, state legislatures – under Article II of the Constitution – are the final voice on electors. A move is afoot – which AMAC has supported – to remind state legislatures to exercise their constitutional authority where irregularities put efficacy of a state’s vote – and thus selected electors – in question. A state legislature can pass a “reclamation resolution,” appointing electors to reflect the legislature’s view of the election, rather than acceding to the governor’s signature.
The precedent for slate-shifting is sparse. While 1876 represents an unusual year, it is taking on new meaning. Several Senators want to establish a commission like one that decided the election that year – in the House. Four states were “in dispute,” enough to shift the outcome – like now.
While a vote of House delegations could have decided the 1876 election, they instead created a commission. The Commission reached an unlikely, complicated compromise. This year, the commission would have a different mission. It would assess whether challenged state slates were tainted by fraud, by some standard. If enough were found tainted to keep Biden below 270 electoral votes, the election would go to the House, for a delegation vote (favoring Republicans).
Is a commission likely? Not really – as both chambers would need to agree, although no constitutional rules exist. A Democrat-controlled House would hesitate, even if Senate did not. What about Senate rejection of state slates – based on fraud – in several states? Yes, that is possible, but does not deliver the election to Trump – or even into the House.
Why? Because – to reject a state’s electoral slate, both Senate and House must agree the slate does not count. That is what the statute – implementing the 12th Amendment – says: 3 U.S.C. Section 15 requires that “two Houses concurrently may reject the vote or votes,” not one.
Might this happen? Not likely, unless overwhelming evidence of fraud shows up, maybe confirmed by the Supreme Court. If such evidence were presented, a few House Democrats might switch. If that happened, given the slim Democrat majority, it is possible – not likely.
How about a different endgame – what if the Senate rejected enough state slates to push Biden-Harris below 270. Could the Senate appeal to the US Supreme Court, force a ruling on whether the statute should be followed in the face of proven fraud? Yes, but the Court must accept appeal, and support the Senate. Given enormity of the Constitutional question, they just might.
What is likely? Most likely is a major league dust up, split votes in Senate and House, leading to a great question mark over this election. In the end, assuming no further fireworks, the count would proceed with both chambers not able to agree on rejecting a single slate.
What – if anything – happens then? The Vice President announces the electoral count. He could conclude – although this has never been done – that evidence presented does not permit him to count some States, leaving them “in dispute.” If both candidates ended below 270, that would force the election into the House – for a delegation vote.
On the other hand, that decision would be challenged at the Supreme Court, for sure. They would try to stay away, but again this is a mammoth constitutional issue. How might they rule? They could say it was textually right. But that would mean a Vice President – acting as President of the Senate – could rule for himself. What would keep future Vice Presidents from doing so? It gets sticky fast – although the counter: It is already sticky, with fraud.
What is most likely? Likeliest is a heated debate and announcement that, barring a judicial ruling to the contrary, the electoral count favors Biden-Harris. Is it then over? Surprisingly, no.
The Constitution’s framers were a brilliant bunch. They knew three branches created balance. They knew the House would rough and tumble, Senate deliberative, Courts sage. The Framers could not imagine all contingencies but did foresee a lot. This year tests their foresight – and our capacity to hold this Republic together. The real issue is whether we can wrestle fraud allegations to a consensus – since they undermine faith in the outcome. If Congress does not shift the outcome, only the Supreme Court can tell us how we treat mass fraud allegations.
Third, expect a mass show of citizen rage, distrust, and general anger in Washington DC. Public reports say January 6th will see a mass rally – and not for Biden-Harris. Whatever the final numbers, national sentiment will be noticed by Congress – maybe also the High Court.
Net-net stay tuned. This may the most important week in 80 years, at least 40. We live in consequential times. The battle is not at Pearl Harbor or Normandy, but right here. It is one of ideas, defending integrity and freedom. This battle will stay joined well beyond January 20.