Gaming Election Law

A recent article in the Atlantic described a way in which, if the Democrats lost the presidential election but won a majority of House seats, they could put Biden in the White House. Like Trump’s failed effort last time, it happens when Congress meets to certify the election. The Democrats refuse to certify Trump’s victory on the theory that he is an insurrectionist and so not qualified for office, the same theory backed by the Colorado Supreme Court.

The article listed an additional requirement, that the US Supreme Court, in deciding the Colorado case, not rule on whether Trump is guilty of insurrection. That requirement was satisfied. The Court ruled unanimously against Colorado on the grounds that a state did not have the power to make the decision:

Because the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal officeholders and candidates, we reverse. (majority opinion, Donald J. Trump, Petitioner V. Norma Anderson, et al.)

But it still isn’t going to happen. As the concurring minority, justices who agreed with the verdict but not the opinion, wrote:

Although only an individual State’s action is at issue here, the majority opines on which federal actors can enforce Section 3, and how they must do so. The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment. In doing so, the majority shuts the door on other potential means of federal enforcement. We cannot join an opinion that decides momentous and difficult issues unnecessarily, and we therefore concur only in the judgment. (Justice Sotomayor, Justice Kagan, and Justice Jackson, concurring in the judgment. Sotomayor, Kagan and Jackson in Donald J. Trump, Petitioner V. Norma Anderson, et al.)

The majority did not rule that Trump was not guilty of insurrection. They did not rule that he could not be barred from office. They did rule that he could only be barred by suitable legislation, hence not by a vote on certifying the election. That is, I suspect, what the minority justices were unhappy with.

Trump could still, in principle, be convicted under US Code 2383 which appears to be the relevant enabling legislation:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States

For that to happen he would have to be indicted, tried, and convicted between now and January 6^th; given the speed with which the court system moves it isn’t going to happen. A few Democratic representatives might choose to ignore the Supreme Court verdict on one excuse or another and vote to refuse to certify his win but the tactic requires nearly all of them to do so; even with the current level of political polarization, that isn’t going to happen either.

Before the Supreme Court verdict came out I did a good deal of thinking about the implications of the tactic — an intriguing tangle. It is not going to happen in this election but other approaches to gaming the election or something like this one in a later election with a different Supreme Court still might.

And besides, why should I let the Supreme Court spoil my fun?

A Tangled Game

Suppose it had happened. If Biden has a minority of electoral votes and Trump is disqualified, is the requirement for a majority of electoral votes interpreted as a majority of all electoral votes or of those not cast for a disqualified candidate?¹ If the former, then neither candidate is elected president and the election is thrown into the House. Each state gets one vote, determined by a majority of its representatives. One can easily imagine a situation where the Democrats end up with a majority of representatives but the Republicans with a majority of states.²

The candidate selected must be one of the three with the highest number of electoral votes. If all electoral votes have gone to Trump or Biden and Trump is disqualified, it looks as though the election goes to Biden. But given that the Republicans are likely to view the refusal to certify an election that they won as an attempted coup they might refuse to vote for him, at which point there is no president. They might argue that if only two candidates got electoral votes there is a tie for third among every US citizen qualified to be president so they can elect anyone they want. Or they might argue that Trump's vice presidential candidate, not having been disqualified, is elected Vice President and, since there is no president, he takes office as acting president.

Suppose the situation is anticipated. The Republicans could arrange to have a different Republican win the three electoral votes of Wyoming and so qualify to be chosen by the House. If it turns out that the outcome is so close that those three votes are needed to give Trump a majority, the election is thrown into the House and the Republicans, by hypothesis controlling a majority of states, can select Trump if the Democrats don't eliminate Trump, the other Republican if they do.

Suppose the Republicans don’t try that. Further suppose, implausibly, that RFK anticipates the whole mess, spends all his campaign money on one district in Maine, a state that divides its electoral votes, and ends up with one electoral vote. The Republicans then have to decide between him and Biden.

Someone should do it as a novel.

Finally suppose that the Democrats execute their tactic and all goes according to plan. Biden is elected president but Trump’s vice presidential candidate has not engaged in insurrection so is not disqualified. We end up with a president of one party and a vice president of the other.

Assume that that the stress of the pressures under which Biden is spending his old age is just balanced by the advantage of elite medical care. Checking a table of male mortality by age, that gives him  about a 40% chance of dying during his second term and being replaced by a Republican.

Two Can Play

So far I have been looking at a way in which it looked, until a few days ago, as though the Democrats might be able to game current election law. The Republicans can do it too.

Assume, this time, the same outcome as in the last election. Biden gets a majority of the electoral votes but the Republicans end up with a majority of the house. Assume that, this time, all the Republican representatives are willing to do whatever it takes to put Trump in office. They challenge the electoral votes of enough states to eliminate Biden’s lead, use their majority to make the challenges succeed. Under S.4573 Trump only needs a majority of the remaining electoral votes to be elected.

Conclusion

If the players of the political game are entirely unscrupulous about gaming the rules we could end up, by any of several different routes, with an arguably legal coup, the candidate who lost the election becoming president. What Trump claimed happened last time but this time for real.

Rules are not enough. There is never enough fine print to cover everything.

P.S. A Republican Senator for California?

Primaries in most states choose which Republican will be the Republican candidate, which Democrat the Democratic candidate. In California all candidates for an office run against each other in the primary, with the top two going on to the general election.³

This year, both of the California senate seats are up, one a special election to fill out Diane Feinstein’s term, one a regular election for her successor. The two winners of both primaries were Adam Schiff, a Democrat, and Steve Garvey, a Republican.

My initial reaction last night after I saw the early results was that, since one person could not occupy two senate seats, Schiff would have to withdraw from one, leaving Garvey unopposed in the other. California, a deep blue state where a Republican last won a statewide office in 2006, was going to have a Republican senator.

Unfortunately I was wrong, as I realized this morning. The special election is for the final months of Feinstein’s term, the regular election for her successor. They are the same office at different times so Schiff can run in, and will win, both.

If, however, Feinstein had died a few months before the election for the other senate seat … .

The relevant text would be S.4573 - Electoral Count Reform and Presidential Transition Improvement Act of 2022. It discusses the case of electoral votes eliminated by an objection:

“(ii) GROUNDS FOR OBJECTIONS.—The only grounds for objections shall be as follows:

“(I) The electors of the State were not lawfully certified under a certificate of ascertainment of appointment of electors according to section 5(a)(1).

“(II) The vote of one or more electors has not been regularly given.

1. Neither of which is relevant here, and:

“(B) EXCEPTION.—The vote of an elector who has been appointed under a certificate of ascertainment of appointment of electors issued pursuant to section 5 shall not be counted if—

“(i) there is an objection which meets the requirements of subsection (d)(2)(B)(i); and

“(ii) each House affirmatively sustains the objection as valid.

The rules were designed to deal with what happened on January 6^th 2021 not what could happen on the same day four years later.

2. Currently Republicans have a majority of 26 state delegations, Democrats of 22, 2 are evenly split.

3. The exception is the presidential primary, where registered Republicans vote for a Republican candidate, registered Democrats vote for a Democratic candidate, and I get to vote for the Libertarian candidate.