On January 6, Trump Could Emerge As President with Harris As His VP

by Mary W Maxwell, LLB

Today is December 28, 2020. A lot can happen in 8 days and more can happen on the big day itself, January 6, in Washington, DC. One oddball result could be that the House of Reps chooses Trump as president, and the Senate chooses Harris as VP.

Players

Herewith an inventory all the players that have some degree of official involvement in the January 6 affair. These are:

— the 435 members of the House of Reps, who must choose a president if no clear winner has emerged from the 538 Electors’ ballots;

— the states (in an abstract way, given that each of the 50 states gets only one choice of president, via its House delegation);

— the president of the Senate (who is always the current VP, so in this case, Mike Pence, as he is constitutionally in charge of the envelope-opening and sequelae (?) on January 6;

— all Congresspersons, who may be called upon, in their respective chamber, to deal with challenges concerning, say, the integrity of the voting machines;

— the 100 members of the Senate, who could be called upon to choose a vice-president if the Electors’ ballots don’t clinch it;

I don’t believe the familiar “House leaders” have any role. The courts won’t be players on January 6; nor will the executive branch of government.  All responsibility falls now on Congress.

When there is no clear winner from the electors, we have what is called a contingent election, to be conducted, per the Constitution, by the House of Reps choosing a president and the Senate choosing a Vice President.

There has only been one contingent election of a VP in US history, namely Martin Richard Johnson in 1837, and two for president: Thomas Jefferson in 1801 and John Quincy Adams in 1825.

The Choreography

All 535 members of Congress assemble in the Hall of the House of Representatives at one o’clock on January 6. The president of the Senate sits in the presiding seat. Per a 1948 federal law, the following will happen:

“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 [Pence], all the certificates and papers purporting to be certificates of the electoral votes.”

They will be opened and acted upon in alphabetical order of the states.  The tellers, after reading them in the presence and hearing of the two Houses, shall make a list of the votes. The votes having been ascertained and counted according to the rules in this subchapter provided, the result shall be delivered to the President of the Senate, who shall thereupon announce the vote, which shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President and, together with a list of the votes, be entered on the Journals of the two Houses.

Note: the above is the uncomplicated picture.  Below, I will describe the “choreography” in the case of controversy.

The Law(s)

Some laws inevitably come into play, as they form the background of this procedure.  I will mention clauses from the Constitution, including Amendment 12 (ratified in 1804), and statutes from federal law, and from state laws.

Article II, section 1 of the Constitution tells how a president is elected. A specific number of electors from each state (who must not be government officials) meet in December and each signs a separate ballot as to his/her choice of president and VP.

Which individuals will serve as Electors?  Per the Constitution, it is for the state legislatures to decide — there are many variations per state law.  Note: it is at the discretion of the states to tell the electors they must pledge to vote for the man or woman who won the November election in that state. Currently, 32 states, with 341 electoral votes, use the pledge system.  The other 18 states have 197 “free electors.”

Federal statutes were provided by Congress in regard to electing a president, for such niceties as what date the electors must meet (“the first Monday after the second Wednesday of December”) and also for the choreography, as mentioned above, which is easily found in Title 4 of the US Code, section 15.

The Constitution is the boss if a contingent election happens. In Amendment 12 we see that when no candidate has received a majority of the 538 electoral votes (i.e., 270), the election devolves to the House of Reps. There will be one vote per state, plus one for the District of Columbia. Their pool of candidates has to be the top three vote-getters from the Electors’ December 14th ballots.

Interestingly, in regard to choosing a vice-president, if no VP hopeful got 270 electoral votes, the Senate can only pick from the top two – which will certainly be Harris and Pence. But the final winner of the presidency could conceivably be someone other than Biden or Trump.  If an elector has put forth a ballot with the name of a dark horse, that dark horse is eligible.

Another point of interest, if we have a contingent election, is that the concept of a “running mate” does not apply.  The House of Reps may choose Trump as president whilst the Senate may choose Harris as VP. Or the pair could be Biden-and-Pence.  Or it could be Dark Horse and either Harris or Pence.

Is There a Dark Horse?

The Constitution says that the December electoral college ballots should be transmitted “sealed” to Washington. Apparently, the word “sealed” does not mandate secrecy, as some state governors have announced the names that they certified.

I have not seen a complete list for 50 states plus DC and do not know if there are any dark horses. When Republican Senator Mitt Romney broke ranks with his Party in the Impeachment trial of Trump, I got the idea he may have “plans.”

I harbored a hope that some of the unpledged electors – from the 18 “free” states would have reached out for new blood. Those 18 states (shown with their number of Electors) are: Arkansas-6, Georgia-16, Idaho-4, Illinois-20, Kansas-6, Kentucky-8, Louisiana-8, Mississippi-6, Montana-3, New Hampshire-4, New Jersey-14, New York-29, North Dakota-3, Pennsylvania-20, Rhode Island-4, South Dakota-3, Texas-38, and West Virginia-5.

I have underlined the state if it had a November 3rd victory for Trump, and bolded the November 3rd Biden states.  Total of electors from non-pledge states is 197. I sure wish more had been said about Dark Horses in the press, to let people know there could be new blood. But all was hush hush. It’s too late now to add new names for January 6. (But see below.)

Elections Are Rigged, Aren’t They?

President Donald Trump, and many others, have claimed that the November 3, 2020 election actually showed him to be the winner “by a landslide,” but that there was cheating, and therefore the White House should not be handed over to Joe Biden.

A hard-hitting attorney, Sidney Powell, came along and said the cheating was largely the product of Dominion software.  I hereby state that I do not have a personal interest in supporting Trump.  I wish we had a better candidate. But I am quite sure that the election was “stolen” and so of course I think we need to enforce the law — for the sake of enforcing the law.

In 1992, Jim Collier published Votescam. He had to work hard at getting an answer to the question: “When ABC-TV announces the number of votes, shortly after the polls close, where do they get that figure from?” He found that they make it up. It’s done by a private group of media people. Since 2003, the group has been named NEP – National Election Pool. All three TV networks, plus CNN and Associated Press belong to it.

In my best guess, all elections have been stolen. The men picked — by The Powers That Be — to become president will always manage to get sufficient “votes.” Probably TPTB only allow their two picks to run against each other anyway, so the November outcome doesn’t really matter to them. If this is so, it would be quite the turnabout for the Sidney Powell forces to prevail.

How To Proceed To Resolve the 2020 Election

Here I attempt to cite any available legal methods for challenging the November 3, 2020 election. Some have already been tried, and in at least one Michigan county there was a recount that proved favorable to Trump.

There have also been lawsuits filed in district courts and some of these went to appeal. However, US courts lower than the Supreme Court are in the habit of “not getting involved.”  Judges can easily dismiss a case on a technicality such as “lack of standing.” Thus we never hear the merits. Alas.

One creative governor, Alan West of Texas, brought his state’s case to SCOTUS.  Per Article III of the Constitution, a state in dispute with the feds gets to go directly to the US Supreme Court.  Governor West’s complaint was that if other states had fraudulent results, that disadvantaged the voters of Texas (who were pro-Trump).

Amazingly, 17 states sent an amicus curiae brief to SCOTUS, siding with Governor West. More amazingly, the Court said No. More amazingly yet, West floated the idea of secession. He said: “Perhaps law-abiding states should bond together and form a Union of states ….”  I think that was a reasonable rejoinder.

As for the court’s unwillingness (though with a few days left they may still come to the party!), note that in 2000, in Gore v Bush, the court did make a ruling that decided an election. It resulted in the recount in Florida being stopped, and this awarded the election to Bush. In a dissenting opinion, Justice John Paul Stevens wrote:

“…It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law…. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law. I respectfully dissent.”

Back to the Choreography

Earlier I copied from 3 USC 15, mostly verbatim, the way Congress will act on January 6 if there is no dispute, no challenge to the validity of electors’ ballots. Quoting that law again (with some paraphrasing), here is what may be in store if hell breaks loose:

“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.”

(That is shortly after the vote count at one o’clock on January 6, 2021. A brand new senator, Tommy Tuberville of Alabama, football coach, has said he wants to raise objections.)

“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.”

(The two chambers never debate anything together.)

No electoral vote or votes from any 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.

Clearly the final arbiter in all of this is Congress, not the state, yet it is respectful to the state.

“If more than one return or paper purporting to be a return from a State shall have been received … those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed ….”

At this point, please note that we are no longer speaking of Reps voting en bloc per state. Voting within each chamber is by individuals and, as we know, the Democrat Party has a majority of the House’s 435 seats.

“In case there shall arise the question which of two or more of such State authorities determining what electors have been appointed … is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such state shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law…”

In other words, it takes agreement of both chambers to do anything. “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. …”

Fatigue May Be the Answer

In all the swing states in which Trump lost on November 3^rd, the Republicans who would have been electors showed up at the electoral college. They claim to have signed the ballots.

There is going to be an extremely long session of Congress if this controversy does not settle down. However, we can think about the possibility of postponing the Inauguration. Amendment 20 of the US Constitution (ratified in 1933) says:

“If, at the time fixed for the beginning of the term of the President [January 20], 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, … 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.”

My Recommendation

Our elected leaders have been putting party loyalty above their duty to the nation. It is ridiculous. I have called it the Westminster-ization of Congress. The Founding Fathers did not intend that the legislatures’ decisions be made by edicts issued from Speaker of the House Nancy Pelosi or Senator Majority Leader Mitch McConnell. They should be made by representatives of the people and with an eye to Rule of Law.

Today we are faced with serious allegations of election fraud.  The matter needs to be handled honestly and responsibly.  As the law maxim says, “Fraud vitiates everything it touches.”

If Joe Biden is wrongly handed the White House, that fraud will spell doom for everything.  It will mean that there is no way to do things in the American government other than by selfish calculation and kowtowing to the powerful.  I mean we would be saying “OK, the baddies can do as they please.”

My druthers at this moment would be for Trump to resign immediately, and withdraw his candidacy for the January 6 event. I recommend this mainly because the media has persuaded millions of Americans, over the last four years, that Trump has a personal desire for power and that this should be withheld from him.

In short, citizens are not as smart as they once were. They may be easily goaded into hostilities..  The media will cause the clash on January 6 to escalate into street violence. Then there won’t be a lawful way to settle it!

Military Involvement on Domestic Soil?

We should not be looking for a military solution to the January 6 event.  But General Mike Flynn was correct to say that the president should seize the offending voting machines. Is that not the normal job of the FBI – to investigate federal crime? The holdback is puzzling.

Were Trump to resign, Pence would become president until at least January 20.   As quoted above from Amendment 20: “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.”

Let there be meetings of citizens to talk about what has befallen us. The corruption in every branch of government is huge. The worst area is the DoJ where corruption (i.e., being beholden to some outside force) has for decades prevented the arrest of governmental criminals. Ergo, those criminals act with more and more impunity.

Another maxim is: Impunitas semper deteriora invitat – “Letting them get away with bad behavior always leads to worse.”  Still another one is Qui non improbat, approbat – “If you don’t protest, you approve.”

America’s Got Talent

Let Sidney Powell be a Special Prosecutor. She won’t be partisan – she is way above that. Let Robert F Kennedy, Jr be put in charge of anything having to do with children, and make Ty Bollinger “Secretary of Vaccinations.” Give Zephyr Teachout a Cabinet post – any Cabinet post. (She’s the author of Break ’em Up – about monopolistic corporations.)

Put Rand Paul in charge of the Federal Reserve Bank. Law professor Lawrence Lessig can be Keeper of the Cyber. Rep Tom Massie of Kentucky had the mettle to insist on the Legislature coming back to Washington to vote on a dicey bill. He honors the balance of powers — make him Vice President! Hey, America’s got talent.

We can use the troubles of the 2020 election to think new thoughts. Congress, as I said, has a lot of leeway via the 20th Amendment.

In a 1934 case, Burroughs v United States, which had to do with bribery, the US Supreme Court ruled:

“To say that Congress is without power to pass appropriate legislation to safeguard such an election from the improper use of money to influence the result is to deny to the nation in a vital particular the power of self-protection. Congress, undoubtedly, possesses that power, as it possesses every other power essential to preserve the departments and institutions of the general government from impairment or destruction, whether threatened by force or by corruption.”

Think back to Alexander Hamilton trying to sell us the plan for an Electoral College.  In Federalist 68, he said that the Framers were proposing that, a president would be chosen by electors “most capable of analyzing the qualities… under circumstances favorable to deliberation…. Nothing was more desired than that every practicable obstacle should be opposed to cabal, intrigue and corruption.”  Wow.  Why can’t we have that?