[conspire] A personal best for the crazy (the route to Jan. 20th)

[Rick Moen]

Court case: Kelli Ward v Constance Jackson, et al., Maricopa County, AZ
case CV2020-015285,   (That's Kelli Ward, Arizona GOP Chair.)
https://www.clerkofcourt.maricopa.gov/records/election-2020/cv2020-015285


https://twitter.com/AkivaMCohen/status/1334296953845395457
(and tweets that followed)

  Ward's lawyers literally just filed a motion that argued that Congress
  setting the dates for appointing electors and when Electors vote is an
  unconstitutional infringement on State legislatures' right, under
  Article II of the Constitution, to set the "manner" of choosing electors

  Article II expressly says:

  "The Congress may determine the Time of chusing the Electors, and the Day
  on which they shall give their Votes; which Day shall be the same
  throughout the United States."

  In other words, they're not sending their best and brightest.

  They're arguing that the Constitution is unconstitutional.

  They literally just filed a motion saying that Congress
  unconstitutionally enacted laws setting the time four states to choose
  electors and for the electors to vote, because that impairs state
  legislatures rights to select the manner of appointing electors under
  article ii

   They truly keep finding impressively new ways to get stupider and
   stupider

   Of course, Congress's right to set those deadlines is express in
   Article II of the Constitution. So their argument is that the
   constitution is unconstitutional


The pleading mishegoss (Yiddish: craziness) in question is displayed here: 
https://www.democracydocket.com/wp-content/uploads/sites/45/2020/11/12-02-20MtforContInspection.pdf

Very recently this afternoon, the court denied plaintiff's all of
requests in toto, and dismissing the main claims, mildly observing 'The 
evidence does not show fraud or misconduct', 'The evidence does not show 
illegal votes', and 'The evidence does not show an erroneous vote count.'
https://www.democracydocket.com/wp-content/uploads/sites/45/2020/11/Order-2.pdf

(Above is merely one highlight of the amazing legal follies where Team
Trump has filed spectacularly incompetent legal challenges and gotten
them quickly dismissed/defeated.  But I figured it was
entertainment-worthy.)


So, there's that.  And informed observers say it's all a sideshow
anyway, that the Toddler and his allies never intended serious court
challenges, and just wanted to feed the Dolchstoßlegende[1] and collect
a $200M slush fund in donations from the gullible -- to help defray his
balloning interest payments to foreign creditors, fuel further political
aspirations, pay large near-future legal bills, etc.




Where the US presidential election  process stands:

http://linuxmafia.com/~rick/election-2020-11-03.html#ascertainment
47 states plus DC have certified their slated of Electoral College
voters, including all the swing states, Biden/Harris has massively more
than the 270 Electoral College pledged votes required to win, and no 
Electors have suggested they'll try to violate their pledges (as a few 
did in 2016).

Certifications are still pending from (only) New York, Missouri, and New
Jersey.  (Note that certification did not stop for any of the Trumpland
bushwah lawsuits.  A court injunction against that happening would have 
required showing the judge strong evidence of pervadive fraud, and
they've been shown none.  The court bushwah won't stop the last three
states from certifying, either.)



Popular Vote Figures:

US Election project calculates that the voting-eligible US population is
currently 239,247,182.  Of those potential voters, relying on
almost-complete vote counts from Cook Political Report:

33.9% (81,270,700) voted Biden/Harris
31.0% (74,216,308) voted Trump/Pence
 1.2% (2,898,868) voted third-party
33.7% (80,861,306) didn't vote

This is the first General Election in living memory where the winner
outpolled didn't-vote.  Biden/Harris's winning margin of over 7 million
is also historic.



What's Next:

The _very_ latest mishegoss is that Congressman Mo Brooks (R-AL) is now
saying he plans to "challenge the Electoral College votes" when the new 
Congress meets in joint session to certify Biden/Harris's election on
Jan. 6th.  Brooks is a leading light of the 'Freedom Caucus', i.e., the 
looniest of the loons.  But this gives me an opening to talk
contingencies.

tl;dr:  None of the loons' ideas and sabotage are going to work.  It's 
all MAGA posturing.  I can prove it.  We'll consider all the possible
outlandish ways for GOP loons to overthrow results.  (But it fails.)


Dec. 8:  This (six days before the Electoral College vote) is called the
"safe harbor deadline".  After the debacle of the 1876 Tilden/Hayes 
election, the nastiest national campaing in US history, Congress passed
the 1887 Electoral Count Act to clarify procedures.  A key provision was 
that, if any state sends its list of chosen Electors by six days before
the Electoral College votes, then Congress must regard that delegation 
as the state's official pick.  (The 1876 debacle included competing
Elector slates from some states, both claiming to be the state's pick.)
(California has certified its Elector choice results _today_, thus
qualifying for the safe harbor.)


So, states aim to send Congress and the National Archivist an official 
slate of Elector names by then, on paperwork called Certificates of
Ascertainment.


Dec. 14:  By Federal law, the 51 slates of Electors (including DC) meet 
in their respective capitals, and write down their votes, which the
governor (and whoever's the top executive official in DC) send the
results in Certificates of Vote to the lame-duck Vice-President, the
National Archivist, and various other people.  If there's a plot to
change slates of state Electors or any Electors deciding to ignore the
pledges, _we'll know then_ what's up.


Jan. 6.  New Congress convenes, and their first order of business is to 
meet in joint session in the House chamber, with VP Pence presiding in
his role as President Pro-Tempore of the Senate.  Pence starts opening
envelopes for each state + DC alphabetically, from Alabama to Wyoming,
reading each result.  

Actually, to back up, each chamber has one duty first:  Swearing in.
Constitution Article I, Section 5 lets each house of Congress decide 
its membership:

  Each House shall be the Judge of the Elections, Returns and
  Qualifications of its own Members, and a Majority of each shall
  constitute a Quorum to do Business; but a smaller number may adjourn
  from day to day, and may be authorized to compel the Attendance of
  absent Members, in such Manner, and under such Penalties as each House
  may provide.

House Speaker Pelosi runs the House rules including swearing in everyone
on Jan. 3rd.  (The Speaker is sworn in first, and then swears in other
members.  The new Speaker might be someone besides Pelosi, but let's
assume Pelosi for discussion.)  If she knows serious Electoral College
hanky-panky is underway because of Dec. 14's results, she can announce
that the incoming Republican members' qualfications need to be examined
and therefore they will not get sworn in for the time being, and
temporarily have full Democratic control of the House during these
matters.  (After all, if there are allegations of voter fraud, an
investigation by the House Committee on Administration is required.)
This is settled law, e.g., it was done during Reconstruction by the
Republican party, especially if there may be a 'contingent election'
(covered below).  Also, since each chamber controls its rules, Pelosi
can just not get around to the next step in suc a process (also covered
below).  These are plenary powers of Congress, so, e.g., the far-right
five-member Supreme Court majority can object all it wants, and a house
of Congress can just tell them to pound sand.

But imagine we're in the joint session that follows, and VP Pence starts
making wild moves like saying, when alphabetical order reaches 'C', that 
he's received a second envelope for California from a set of 55 Electors 
who have cast their votes for Trump/Pence rather than Biden/Harris, and
he's ruling them the official California Electors.

With each of the 51 envelopes proclaimed by Pence, members of Congress
can object to accepting the proposed state slate's votes, provided the
objection's in writing and signed by at least one House member and at
least one Senator.  Probably, Rep. Brooks's stunt halts here, unless he
can get a Senator to go along, and do so in writing.  Standing up on the
floor and making a speech doesn't do anything.  (Such stunts occurred in
2016 and 2000 from Democrats, and were just ideological PR noise.)

If there's a real objection, by Federal law (part of the Electoral Count
Act), the joint session _stops_ (and cannot resume until the objection 
is resolved), the Senators withdraw to their side of the building, and
each chamber debates and votes on the objection separately by majority
vote.  There are rules (Federal law:  Electoral Count Act) about what
happens if one chamber or the other approves the state slate:

House and Senate both approve:  Electors are accepted.
House rejects, Senate approves:  Electors certifed by the state's 
   governor are accepted (not any competing slate).
House accepts, Senate rejects:   same
House makes no decision:  The process stops.

This means that the House of Representatives has a controlling role, in
that a majority of seated House members (who, remember, might
temporarily consist only of Democrats, if the Speaker wants to play
hardball) can stop the Electoral College vote process indefinitely if
games are being played with objections, by simply not debating or
holding a vote on the objection, e.g., referring the matter to a
committee that then never meets.

So, the worst doomsday scenario works out as above, with a majority of
the House freezing the process.  And neither the Senate nor the Supreme
Court nor the President has any power to force otherwise.  Time passes.
Congress isn't doing anything because the House deliberately stalled
the process.  Leading to:


Jan. 20:  At noon, the Pres & VP's terms of office end.  Period.  This
is the law of the land as per the 20th Amendment (which cut the lame
duck period by 50% after Herbert Hoover did a lot of nothing through
March 1933, blocking FDR from acting to counter the Great Depression
until Hoover left).  If Congress hasn't certified succesors yet, then
the House Speaker or one of a series of sucessors becomes Acting
President (until Congress is able to fix the situation).

Oh, wait, you say!  What about 'congingent elections'?  By the 12
Amendment, if the joint session starting on Jan. 6 fails to certify a
majority of Electoral College votes for a winner, then the joint session
ends, and the House of Representatives votes among the the top Electoral
College picks, each state's delegation getting one vote.  The
Republicans in the House can in theory designate a President this way,
because (at least in this Congress, and I believe in the incoming one,
too), they dominate 26 of the 50 House state delegations.  _However_, 
as mentioned, the Speaker, on behalf of a majority of the House, can
prevent Congress from proceeding to contingent election at all (by
refusing to act) -- and also can defer seating Republican house members
until after the matter is settled.


The above doesn't prevent 'hard' coups (tanks in the street), but nothing
in the way of adminstrative process does.  The point is, though, that 
a majority of the House has the means to thwart 'soft' coups that rely
on legal process. 


But talking about doomsday scenarios, albeit interesting as an exercise,
is also a digression into fantasy, because none of that is going to
happen.  I doubt that Rep. Brooks is even going to find a Senator
willing to sign a paper with him.

Short of tanks in the streets, or global thermonuclear war, count on a
very ordinary and cheery Inauguration Day for Biden and Harris.