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Monday, November 28, 2016

A New Game

Even though we have all voted, the election continues and it's actually a long and easily contestable path from here to having a President Trump in the White House. To me, the latest maneuvers look like brilliant moves in chess and the political future of the country looks very uncertain.

Jill Stein filed a recount petition in Wisconsin a mere 90 minutes before the filing deadline:
An election recount will take place soon in Wisconsin, after former Green Party presidential candidate Jill Stein filed a petition Friday with the state’s Election Commission, the first of three states where she has promised to contest the election result.
The move from Stein, who raised millions since her Wednesday announcement that she would seek recounts of Donald Trump’s apparent election victories in Wisconsin, Pennsylvania and Michigan, came just 90 minutes before Wisconsin’s 5 p.m. Friday deadline to file a petition.
She raised millions for the Green Party and that in itself is quite clever. Well played, Ms. Stein!
As of Friday evening, Stein’s campaign reported taking in over $5.25 million in recount-related donations — the most by a third-party candidate in history.
But the more brilliant move is the "90 minutes before" part. From what I can tell at this point, Wisconsin will very likely NOT be able to complete the recount before the December 13th deadline:
Wisconsin will almost certainly miss that deadline, since the last recount took more than a month. And that recount was for a state Supreme Court contest where only 1.5 million votes were cast.
If Wisconsin misses the December 19 deadline, the electoral votes may not be counted. 
Stein is going to ask for a hand recount, which will slow the process even further.
Stein is also petitioning for a recount in Michigan and Pennsylvania. With suitable delays, these states may also miss the December 13th deadline, and if so, in combination with Wisconsin, that alone would deprive Trump of enough electors to directly become President. But even if one or more of the states finishes the recount and convenes a meeting for their electors to cast their ballots according to the recounted vote (which, assuming no shenanigans, will still go for Trump), it may enable enough defecting electors (if any, but I'd be surprised if there aren't any at all) to also deprive Trump of the 270 electoral votes he needs.

In the 2000 Florida recount, the US Supreme Court intervened at the last minute (December 12, 2000):
Because it is evident that any recount seeking to meet the Dec. 12 date will be unconstitutional ... we reverse the judgment of the Supreme Court of Florida ordering the recount to proceed ... It is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work.
People who are more politically aware than me will have to clarify, but this seemed to me to tell Florida to wrap it up by the deadline (which was the same day as the Court's intervention) and do the best they could by said deadline.

The current Supreme Court could do something similar. However, as you probably remember, at the moment there are only 8 justices and any attempt to decide something could easily be split 4-4 with the Supreme Court doing nothing at all.

So what then? It seems that the House of Representatives would likely decide the Presidency and the Senate would decide the Vice-Presidency. The House and Senate are majority Republican but they don't particularly like Trump. Here's one scenario:
Still if all 3 states fail to make a timely recount and fail to appoint their slate of Trump-Pence electors…then the presidential race will be thrown into the House where each State has one vote. Under Article II and the Twelfth Amendment, Trump has to carry a majority of state delegations (26 of 50). There is a separate quorum requirement: 2/3 of the States (34 of 50) must have one or more members present. Trump can probably meet this bar: 32 of the state delegations in the 115th Congress will have Republican majorities (albeit some are narrow majorities), and 11 other state delegations have 1 or more Republican members. So the Republicans should be able to reach a quorum of 34 States with one or more members present.  
However, if all three 3 states fail to make a timely recount and fail to appoint their slate of Trump-Pence electors…then the vice presidential race will be thrown into the Senate. Under Article II and the Twelfth Amendment, Pence will need a majority of the “whole number” of senators. The Republicans have such a majority. But the Twelfth Amendment also has a quorum requirement: “two-thirds of the whole number of Senators.” [2/3 is 67 of 100 senators, assuming all elected Senators are alive and sworn during the proceedings to select a Vice President.] The Republicans cannot meet this bar, at least not absent Democratic participation. By absenting themselves, the Democrats can block the narrow Senate Republican majority from selecting Pence.
But even the above scenario is not the most chaotic possibility:
Worst or best case situation…depending on your point of view…the Senate fails to elect a Vice President and the House fails to elect a President. How could the latter happen? Paul Ryan will be in the chair. Ryan might delay the vote or he might allow the vote to be delayed by dilatory opposition motions. If something like that should happen, and if no President and no Vice President are elected by the House and by the Senate, respectively, then the Presidential Succession Act of 1947 kicks in…and the acting presidency will fall to…the Speaker of the House (if he chooses to take it), and if the Speaker fails to take it, then to the Senate President Pro Tempore (“SPPT”) (if he chooses to take it), and if they fail to take it, then to cabinet members. By this time, most (perhaps, all) of President Obama’s cabinet will have already resigned, and so the acting presidency might fall to someone not holding a highly significant cabinet post.
There is now a significant academic literature suggesting that it is unconstitutional for the acting presidency to fall to House and Senate officers, such as the Speaker or SPPT. (I note that I do not share this view which is now commonplace in academia.) Based on this view, should the Speaker or SPPT (as opposed to Donald J. Trump) succeed to the (acting) presidency, it is likely that an outgoing Obama-era cabinet member would sue to displace (as in “replace”) the Speaker or SPPT who is acting as President. 
So in other words, the next President of the United States might be a janitor (Secretary of Cleaning Services) currently serving in Obama's cabinet. There might be a wee bit of a fight over that! Quite chaotic, no?

In other news, I'm eating more bananas lately... :-)

14 comments:

erp said...

Nicely outlined. The coming scenario is unprecedented and IMO Obama will remain right where he is until it's all worked out. Months, perhaps years from now and again IMO, that's why Scalia smothered himself with his pillow and why Obama had that I-know-something-you-don't-know smirk on his face after the election results were announced. Don't forget the Chief Justice who IMO is a not a conservative and will if need be, vote with the enemy on this one. I'd say he's a Manchurian candidate, but he didn't need to be brain washed and hypnotized.

Bret: A word to the wise, never mind about bananas, lay in a supply of toilet paper, apparently that's always the first commodity to get scarce whenever there's a crisis in the land. I know that's what I plan to do and I plan to store it in the bird feed bin in the back yard along with all the extra cash I can get my hands on.

I disagree on one point: the money Stein raised during the campaign was in small amounts, the money coming in for the recount is in large amounts and it's pretty obvious it's coming from Soros et al. and IMO little, if any, of it will be go into the Green Party coffers. I understand Jill has a new beach house and upgraded wheels for her trouble.

Just as lefties are the most racist, they are also the most rapacious grifters and money grubbers -- to wit -- Hillary -- the poster girl for the genre.

Bret said...

I guess after eating all of those bananas in honor of us becoming a banana republic I'll need lots of toilet paper...

erp said...

Usually bananas have the opposite effect, so you may be okay.

I just saw that Wisconsin has declined to do a hand count, so Stein is suing which will drag out the process even more.

Hey Skipper said...

[OP:] With suitable delays, these states may also miss the December 13th deadline ...

You have loaded a great deal on the phrase "With suitable delays", far more than it can carry.

First, the deadline to file the recount petition was presumable made taking into account suitable delays.

Second, SFAIK, no recount has ever overcome the margins in these states. Ever. Which means the recount doesn't have to be complete to verify that no possible recount could sway the outcome.

Invasively count the 10 most populous precincts. If there is little or no change, then the likelihood of the next 10 clearing that bar is far less. At some point, not very far along, there is no possibility of changing the outcome.

Oh, and one other thing: Stein is a loathsome shith*ed.

Bret said...

Hey Skipper wrote: "First, the deadline to file the recount petition was presumable made taking into account suitable delays."

No!

The deadline is a federal deadline and they didn't ask the states for their opinions on when that deadline should be. And if hand counts are required...

Hey Skipper wrote: "...there is no possibility of changing the outcome."

You know better than that - the probability approaches, but never reaches, zero. Once Stein pays for the recount, they'll have to recount everything unless some court somewhere intervenes as they did in Florida.

erp said...

The court in question is made up of three lightweights, three yentas, John Roberts, questionable, at best. The only reliably judicial justice is Clarence Thomas. Not good odds.

Skipper, how can you say that there is no possibility of changing the outcome when we don't know what Soros et al. have up their sleeves and which judges are ready to confirm their actions?

The progs know it's now or never. Nothing too underhanded to turn things their way.

erp said...

Soros funding the recount -- no surprise here!

Hey Skipper said...

[Bret:] You know better than that - the probability approaches, but never reaches, zero. Once Stein pays for the recount, they'll have to recount everything unless some court somewhere intervenes as they did in Florida.

It does reach zero if the remaining uncounted votes are less than the margin.

Unmentioned is what I have heard is the most pivotal part of law: standing. In order for Stein, that psychobitch from hell, to get any attention in court will require her to establish standing. Since the odds of any recount awarding her victory very rapidly become zero, once that point is reached (she got, what, 1.5%-ish of the votes in these states?), in order for her to even get a hearing requires that she establish standing, which requires showing her odds of victory are injured by the remaining uncounted votes.

Good luck with that.

[erp:] Skipper, how can you say that there is no possibility of changing the outcome when we don't know what Soros et al. have up their sleeves and which judges are ready to confirm their actions?

Because monitors from all sides are watching like over-caffeinated hawks.


erp said...

Skipper, I hope you're right.

Clovis e Adri said...

Call me naive, but I think the recounting makes sense.

There is a reported 7% difference between electronic votes and paper ones. They will not change the election, but they make for an interesting case study, so to collect maximum information on them is helpful.

I think it is extremely unlikely the above scenario painted by Bret will follow, though I thank him for pointing out such an interesting possibility.

More probably, they will end up explaining the 7% difference due to temporality (electronic and paper votes were not cast all in the same day) and demographics, but it will be worth to look at: it adds to the trust in the system. Such trust is lacking for many, including the winner, so why not to tackle the matter?



---
Unmentioned is what I have heard is the most pivotal part of law: standing.
---

Since Clinton joined it, isn't her standing also conidered?

erp said...

Clovis, since this situation dreamt up by the dream team of lefty master manipulators, is unprecedented, the issue of standing is far from clear, obviously why Hillary was brought in.

Our voting was never in question until voter ID was thrown out and we extended voting from one day - Election Day - to multiple weeks making fraud an easy matter.

We moved to different states several times and each time we had to re-register to vote bringing with us the proper documentation, etc. When we moved to Florida, we didn't arrive in time to register, which BTW meant going to the registrar's office at the county court house, not the local 7-11*, so we weren't allowed to vote that year.

* A ubiquitous convenience store.

Restore the law and most of these problems will go away.

Bret said...

Clovis wrote: "I think it is extremely unlikely the above scenario painted by Bret will follow..."

Well, between the time I wrote the post and now, PA claims Stein missed the deadline for requesting a recount, so that's almost certainly game over for my scenario. I guess I was a little too quick to write this post but I assumed that once folks (Soros or otherwise) started putting millions of dollars into it, that they would be competent. Silly me!

erp said...

Bret, it's chaos they want and they've going after it in a very orderly, competent manner.

Hey Skipper said...

[Clovis:] Since Clinton joined it, isn't her standing also considered?

I think representatives of the Clinton campaign joined as observers, but they did not make any recount request.

There is a reported 7% difference between electronic votes and paper ones.

A statistician (Nate Silver?) who does a lot of polling work for the Democrats, shot holes in that assertion, in that the alleged oddities disappeared once looked at other than superficially.