{"id":1472800,"date":"2024-06-23T01:00:00","date_gmt":"2024-06-23T05:00:00","guid":{"rendered":"https:\/\/bugaluu.com\/news\/?p=1472800"},"modified":"2024-06-23T01:00:00","modified_gmt":"2024-06-23T05:00:00","slug":"gaps-in-electoral-college-tiebreaker-rules-could-bring-constitutional-crisis","status":"publish","type":"post","link":"https:\/\/bugaluu.com\/news\/gaps-in-electoral-college-tiebreaker-rules-could-bring-constitutional-crisis\/1472800\/","title":{"rendered":"Gaps In Electoral College Tiebreaker Rules Could Bring Constitutional Crisis"},"content":{"rendered":"

Gaps In Electoral College Tiebreaker Rules Could Bring Constitutional Crisis<\/span><\/p>\n

\n

By Brian McGlinchey at Stark Realities<\/a><\/em><\/p>\n

While many Americans know that an Electoral College tie sends presidential and vice presidential elections into the House of Representatives and Senate,\u00a0few realize there\u2019s a constitutional crisis lurking in the incomplete rules for resolving such draws.<\/strong><\/p>\n

In 2024, scrutiny of these hidden dangers is more than a mere academic exercise, as there are plausible\u00a0scenarios<\/a>\u00a0by which Joe Biden and Donald Trump could end up with 269 electoral votes apiece<\/strong>. One, for example, centers on Trump winning Nevada, Pennsylvania, Michigan and Wisconsin, and Biden winning Georgia, North Carolina and Arizona.<\/p>\n

One of the scenarios that could yield a 2024 Electoral College tie <\/strong>(via\u00a0270toWin<\/a>)<\/a><\/p>\n

In the event neither candidate reaches the requisite 270 electoral votes, Americans would witness the first \u201ccontingent election\u201d in\u00a0100 years<\/a>.<\/strong> In accordance with the\u00a012th Amendment<\/a>, the president would be chosen by the House of Representatives, and the vice-president by the Senate. In both chambers, votes would be cast by the\u00a0newly-elected<\/em>\u00a0Congress that first convenes in January.<\/p>\n

That top-level description \u2014 which is about all you typically get from most media references to the possibility \u2014is deceptively simplistic. In practice, a contingent election would be far messier than most Americans realize, with the potential for a deadlock that leaves the Oval Office unattended.<\/strong><\/p>\n

\u201cUnsettled legal and procedural questions permeate nearly every aspect of the process,\u201d wrote Beau Tremitiere and Aisha Woodward at\u00a0Lawfare<\/a><\/em>, \u201cand in today\u2019s political environment, high-stakes legal disputes and constitutional hardball would be inevitable.\u201d<\/p>\n

Before we look at the lurking risks to an orderly transfer of power, let\u2019s quickly review some contingent-election basics.\u00a0In the House, presidential votes are cast not by individual representatives, but by state delegations<\/strong>, with each state having a single vote. The House chooses from the top three Electoral College vote-getters; of course, in most years, only the two major-party candidates receive any. Winning requires the votes of 26 states.<\/p>\n

As of today, Republicans control\u00a026<\/a>\u00a0House delegations compared to the Democrats\u2019\u00a022<\/a>, while the North Carolina and Minnesota delegations are evenly split among the two parties. However, since the votes would be cast by the victors of the November election, the delegation-control math could be different when the 119th Congress is gaveled into existence at noon on Jan. 3.<\/p>\n

If the House vote for president results in a tie, the state delegations keep on voting until there\u2019s a winner. If that hasn\u2019t happened by Inauguration Day \u2014 January 20, 2025 \u2014 the new vice president becomes acting president<\/strong> until a candidate gets 26 votes in the House.<\/p>\n

Things work a little differently in the Senate. Unlike the House\u2019s state-delegation approach, individual senators cast their own vote for vice president. <\/strong>Rather than the top three electoral-vote finishers, senators pick among the top two. Counting independents who caucus with the Democrats, the Democrats currently control the Senate by a slim 51-49 margin, but face an\u00a0uphill climb<\/a>\u00a0to retain a majority in January.<\/p>\n

<\/a><\/h3>\n

Here\u2019s where we encounter a major gap in the contingent-election rules: While the 12th Amendment spells out what to do if the House is deadlocked on Inauguration Day, it fails to address the same possibility in the Senate.<\/strong><\/p>\n

The vice president is also president of the Senate. During ordinary business, vice presidents are summoned to cast tie-breaking votes. Some suggest that, since Kamala Harris would be vice president during the contingent election, she would simply cast a tiebreaking vote \u2014 for herself.<\/p>\n

However, the 12th Amendment stipulates that \u201ca majority of the whole number [of Senators] shall be necessary to make a choice [of vice president].\u201d Some scholars argue that\u00a0this rules out a tiebreaking vote being cast by the vice president<\/a>, who is, strictly speaking, not a \u201csenator.\u201d<\/p>\n

The most concerning scenario would arise if both the House and Senate are deadlocked on Jan. 20<\/strong>. If that happens, some say the new president should be selected using the\u00a0Presidential Succession Act of 1947<\/a>. That\u2019s the law that provides a line of succession that proceeds from vice president to speaker of the house, president pro tempore of the Senate, and then through the cabinet secretaries in order of their departments\u2019 founding date, with State coming first.<\/p>\n

Not everyone agrees on that solution. \u201cThe Succession Act does not clearly apply to a failure by the House to elect a President or the Senate a Vice President <\/strong>by the time the new terms of those officers begin,\u201d wrote William Josephson in the\u00a0Journal of Constitutional Law<\/a>.<\/em><\/p>\n

According to its language, the\u00a0Succession Act<\/a>\u00a0applies to the absence of a president \u201cby reason of death, resignation, removal from office, inability, or failure to qualify.\u201d<\/strong> That last term seemingly refers to\u00a0constitutional qualifications for office<\/a>\u00a0\u2014 such as being 35 years old and a natural citizen \u2014 and not the failure of any candidate to receive the requisite number of electoral votes or contingent-election votes.<\/p>\n

<\/a><\/p>\n

On top of that, it\u2019s been argued that the Succession Act\u2019s inclusion of the House speaker and Senate president pro tempore in the succession sequence violates the Constitution<\/strong>. \u201cThe best reading of the Constitution’s text, history, and structure excludes federal legislators from the line of presidential succession,\u201d wrote Akhil Reed Amar and Vikram David Amar in the\u00a0Stanford Law Review<\/a><\/em>.<\/p>\n

Even if the Succession Act were to be applied, Americans may be surprised by who ends up serving as interim president. The House speaker would almost certainly refuse the opportunity to ascend.<\/strong> Given politicians\u2019 huge appetites for power, that\u2019s counterintuitive \u2014 but not when you consider that, under the Succession Act, the speaker becomes president only \u201cupon his resignation as speaker\u00a0and as representative<\/strong>\u00a0in Congress.\u201d<\/p>\n

Knowing the House could sort out the contingent-election impasse in short order, most speakers would recoil at the idea of tossing away not only the speakership but even their seat. If the Senate president pro tempore likewise refused, that could lead to a President Antony Blinken as an interim solution<\/strong>. Again, that\u2019s only based on the highly dubious assumption that the Succession Act covers a tied-election scenario.<\/p>\n

Partisan Procedural Warfare<\/h3>\n

As if gaps in the basic rules of a contingent election weren\u2019t enough, the process would also be subject to delays and breakdowns arising from parliamentary gamesmanship.<\/strong><\/p>\n

As many more Americans now know \u2014 thanks to what happened last time around \u2014\u00a0Jan. 6<\/a>\u00a0is the legally-prescribed date on which Congress counts electoral votes submitted by the states. If there\u2019s a tie, the 12th Amendment says the House must \u201cchoose immediately, by ballot, the President.\u201d<\/p>\n

The electoral vote count on January 6, 2021 was particularly well-attended\u00a0<\/strong><\/a><\/p>\n

Like so many other words in Washington, \u201cimmediately\u201d can\u2019t be taken at face value. Since Congress has never gotten around to passing a law spelling out how contingent elections are to be administered, the House would first need to adopt a set of rules for the process<\/strong>. The majority party as of January 2025 would be incentivized to force rules that favor its candidate.<\/p>\n

To give one example of how the rules could be tailored to one party\u2019s benefit, note that the 12th Amendment doesn\u2019t stipulate how the House\u2019s individual state delegations conduct their votes<\/strong>, or whether the state\u2019s decision must spring from a plurality, simple majority or supermajority of the delegation.<\/p>\n

Different procedural machinations could unfold as the Senate carries out its vice presidential election. Under Senate rules, ending debate and moving to a vote requires the consent of\u00a060 senators<\/a>\u00a0\u2014 but it\u2019s unlikely either party will have that many seats in January, which means the VP vote could be delayed by a filibuster<\/strong>. To break it, the majority party could be compelled to \u201cgo nuclear<\/a>\u201d \u2014 changing Senate rules so only a simple majority is needed to cut off debate.<\/p>\n

Given the enormous stakes, the majority party could be tempted to use far more extreme tactics. In the House, that could mean expelling or refusing to seat members<\/strong> of state delegations that would otherwise be evenly split among Democrats and Republicans, or those delegations where the chamber\u2019s minority party has a mere one-vote advantage.<\/p>\n

As all these controversies and procedural duels play out, the clock will be ticking \u2014 and there are just 14 days between Jan. 6 and the Jan. 20 inauguration. Over that short period, any number of high-stakes legal challenges could play out in various courts.<\/p>\n

<\/a><\/p>\n

While the prospect of rushed litigation is disconcerting, it may also be wishful thinking.<\/strong> Due to separation-of-powers concerns, the federal judiciary has historically avoided involving itself in what it considers\u00a0internal congressional disputes<\/a>. If controversy erupts over how the contingent election is being administered in the House or Senate, there may be no external referee for an aggrieved party to turn to.<\/p>\n

In short, if both contests are still unsettled on Inauguration Day, America could conceivably be without a president or vice president and without any final authority on how to name a temporary one.<\/p>\n

Potential \u201cFaithless Elector\u201d Mayhem<\/h3>\n

What seems like a 269-269 tie on Nov. 6 could be resolved in an altogether different and even more controversial way: One or more presidential electors could go rogue<\/strong> when the Electoral College votes on\u00a0Dec. 17<\/a>, voting for someone other than the winner of their state\u2019s popular vote.<\/p>\n

In 2016, there were a whopping ten such \u201cfaithless electors.\u201d Texan Bill Greene, for example,\u00a0voted<\/a>\u00a0for libertarian Ron Paul, who\u2019d made a spirited bid for the GOP nomination. While a 2020 Supreme Court ruling\u00a0upheld<\/a>\u00a0the power of states to impose penalties on faithless electors,\u00a0many states have no laws barring deviant votes<\/a>, some states have laws with no penalties, and many states have no provision for canceling deviant votes.<\/strong><\/p>\n

In a less likely but more explosive scenario, rather than breaking a seeming 269-269 tie, faithless electors could instead\u00a0cause<\/em>\u00a0a tie<\/strong> and a contingent election. Keeping in mind that the House chooses from the top three electoral-vote recipients, faithless electors could throw someone other than Biden and Trump into the mix \u2014 such as independent candidate Robert F. Kennedy, Jr, or someone else who could end up becoming president as a House compromise candidate.<\/p>\n

Americans can debate the likelihood of a 2024 electoral college tie and ensuing contingent-election deadlock. However, until gaps in the Electoral College tiebreaker rules are filled by new federal law and perhaps a constitutional amendment, we\u2019ll keep playing a quadrennial game of chance that could someday result in an unprecedented crisis from which there is no clear exit<\/strong>.<\/p>\n

Stark Realities<\/a>\u00a0undermines official narratives, demolishes conventional wisdom and exposes fundamental myths across the political spectrum.\u00a0Read more and subscribe at\u00a0starkrealities.substack.com<\/a><\/strong><\/em>\u00a0\u00a0<\/p>\n

<\/a><\/p>\n

Views expressed in this article are opinions of the author and do not necessarily reflect the views of ZeroHedge.<\/em><\/p>\n<\/div>\n

Tyler Durden<\/a><\/span>
\nSat, 06\/22\/2024 – 21:00<\/span><\/p>\n

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