Law, History, Emoluments, the Deep State (i.e., the Rule of Law)… plus some family fun. Twitter: @jedshug
Author: Jed Shugerman
Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and political ambition (a cause of mass incarceration), and "The Imaginary Unitary Executive," on the myths and history of presidential power in America.
What happens when political parties reject elections and delegitimize democracy? American history tells us clearly: violence and bloodshed. Wednesday’s riot at the Capitol may seem unprecedented, but it was utterly predictable. On Sunday, I tweeted this thread on how attempts to steal American elections almost inevitably lead to violence, and I drafted much of this essay on Monday. While Wednesday’s violence was foreseeable, the question now is what Congress should do about the national leaders who enabled and inflamed this crisis.
Even after Wednesday’s literal assault on democracy, a significant number of Republicans continue to spread baseless conspiracy theories. Indeed, these members cited the spread of those theories in order to justify their decision to object to Wednesday’s Electoral College count, the precipitating event for all of this madness. As a pro-Trump mob was marching to the Capitol right on cue, Sen. Ted Cruz led the objections, swooning that “39 percent of Americans say the election was rigged. … You might disagree, but it is a profound danger to our democracy.” Yes, Ted Cruz spreading these baseless concerns, and then citing those concerns, is indeed a profound danger to our democracy.
American history is instructive in this regard. Specifically, the 1850s “Bleeding Kansas” episode when pro-slavery election fraud produced voting disputes and then a cycle of murders has a lot to teach… more in the link…
I’ve been getting inquiries worrying that Pence will block the Biden electoral college win when he presides in the Senate on January 6th. Don’t worry. Neither the 12th A nor the Electoral Count Act give him that power.
The 12th Amendment merely designates the President of the Senate (the VP) to “open all the certificates.” But then it uses the passive voice: “the votes shall then be counted.” Implicitly, Congress does the counting.
The Electoral Count Act is more detailed on the count process. Note that the president of the Senate (the VP) has no special role in resolving any dispute.
After there are objections to any state’s slate of electors, the only way to override the certified electors is if BOTH Houses “concurrently… reject” that slate. See 3 USC 15. Dems control the House. That’s simply never going to happen. The Senate isn’t going to reject any slate either. “But if the two Houses shall disagree…the votes of the electors whose appointment shall have been certified by the executive of the State…shall be counted.” 3 USC 15 . Governors already certified the Biden win, 306-232.
Don’t forget the Safe Harbor provision that the states all met in time and that legally protects the Biden win (306-232): Certification by Dec 8th “shall be conclusive, and shall govern in the counting of the electoral votes.” 3 USC 5. If Pence or the Senate tried to pull any extra-legal/illegal moves to sabotage the count, Biden could seek a court order immediately in federal court, receive the order, and the Supreme Court would refuse any Trump appeal by denying cert. But I don’t imagine that would be necessary.
My mentor Bruce Ackerman and my friend David Fontana wrote this article (summarized here) about how Adams in 1796 and Jefferson in 1800 counted electoral votes with formalistic problems (Vermont & Georgia, respectively. But there was no Electoral Count Act then. Moreover, the historical record does not suggest a substantive dispute over whether Vermont or Georgia intended the electoral votes to go to Adams or Jefferson, respectively. The vice presidents’ actions in 1796 & 1800 simply are not precedents for Pence to defy the voters or the Electoral Count Act.
Bottom line: There is no secret legal maneuver left to stop a Biden presidency. Pence & McConnell understand these rules & are in an awkward political position of their own sad making. Any drama before or on Jan 6 will be merely a pathetic show of Trump loyalty/cowardice.
Pennsylvania update: Remember when I was frantically emailing and posting about Pennsylvania voters who had ordered absentee ballots, but understood it was important to vote in person because they distrust Trump’s mail? And many people were saying you may have to use a provisional ballot? Many of those voters were Democrats and especially people of color. Well, update from MSNBC:
“Pennsylvania officials say a lot of the remaining votes are provisional ballots cast in urban precincts on Election Day, and they are the last votes we count.”
Biden already has a good lead with lots of Biden batches to count. Nate Silver says the red areas have a few more votes left than we have thought, but they’re small and not as red as the rest of those counties. The PA count has been slowed down by Trump lawsuits and 2 mechanical/logistical errors, but it’s still on track. Still no legal basis to stop the count or reverse the lead. PA Dems still say they project a win by 100,000, but it’s going more slowly than they hoped.
8 pm update: “The Pennsylvania SOS office is reporting 100K mail ballots left to be counted statewide. The top six counties are all Biden counties, with a combined 70K (inc 35K in Allegheny, 23K in Philly). Biden’s lead will just keep going up.”
And the Biden 80/20 pace continues in Allegheny County: link.
1. Pennsylvania is starting to get called officially for Biden by decision desks. That’s 273 electoral votes w/o GA or AZ. And still on track for Biden to win by well over 50,000, beyond any plausible recount or overseas/military ballot(which is relatively 50/50 see below)
And keep in mind that Obama and Clinton kept adding millions to national popular vote over the following weeks. Biden’s national margin will be around 7-8 million, bigger than Obama over Romney 2012.
2. Lots of people asking about 10,000 overseas and military. GA Military is more mixed vote this year. A. It’s not Iowa military. More Black servicemen (who are more Republican than Black men generally, but the military vote won’t be red enough to catch up. B. August polling of military showed major shift against Trump (see Military Times poll below). C. Overseas non-military is Democratic. D. There is even more blue Atlanta and Savannah coming in today. The margin will be big enough today. Overseas gets counted next week, too little too late.
3. AZ probably stays Biden. The trend towards Trump slowed down in the last batches. Too little too late.
4. Too many states have a margin too big for a recount to have any reasonable chance.
Likely 306 Electoral Votes.
From Military Times Aug 31: “In the latest results — based on 1,018 active-duty troops surveyed in late July and early August — nearly half of respondents (49.9 percent) had an unfavorable view of the president, compared to about 38 percent who had a favorable view. Questions in the poll had a margin of error of up to 2 percent. Among all survey participants, 42 percent said they “strongly” disapprove of Trump’s time in office.”
4. Nevada is going to called for Biden soon to get Biden to 259 electoral votes beyond any realistic recount or legal challenge, just like where Pennsylvania is headed: a politically clear and legally unimpeachable count for Biden.
All signs point to Biden winning the Philadelphia absentee ballots by a lot over the next 24 hours, and winning Pennsylvania by at least 100,000 votes. And that gets Biden to 273 electoral votes without any other undeclared states NV, AZ, GA or NC.
See below. Trump is up by 130,000, but there are about 600,000 absentee ballots left, mostly from urban areas, and Biden is winning them overall 80% to 20%:
By a cautious estimate, Biden will net over Trump at least 200,000 votes, and will win Pennsylvania by about 100,000 votes by Friday.
There is no legal basis to stop this count, and the margin will be too big for any recount to make a slight bit of difference, or to need to count pre-election postmarked/late arriving ballots under the legally vulnerable state Supreme Court extension.
So this is the winning map: PA gets Biden to 273 without AZ, NV or GA:
Biden will win NV and AZ. (Update: Arizona has gotten messy with a tabulation error and confusion about the party registration balance of late-arriving mailed ballots).
Then he needs just 2 of the following 4, and there is a rough consensus that he is likely to win all 4 by close margins: GA, MI, WI, and PA The numbers already look good, given what seems left to count. We should know more by the end of the day. For example, see this helpful projection of PA here: https://twitter.com/monicadrake/status/1323970032737656832?s=21
Trump has no legal basis to stop any of these counts of ballots that arrived on time according to pre-established state law. The Pennsylvania Supreme Court mail extension for ballots mailed on time but arriving late is the only exception, and that suit could become moot by the other states or by the count of PA’s more timely ballots. And the US Supreme Court already rejected that claim 4-4. If Amy Coney Barrett reverses that decision after the election, it will be a major problem for voters’ reliance on the first decision, and if somehow that gives Trump the election, it would be a disaster for the rule of law and the legitimacy of the courts in America.
Senate: less likely. The Democrats need 2 more pick-ups, relying on absentee votes in Maine and then a Georgia run-off. North Carolina looks too far back.