Honestly... maybe this is how it should be. Maybe a general election for president is too large to be handled, and the election should return to the state legislatures where it originated in 1789. It’s not like that’s less democratic. If done this way, people would care about state politics again because a vote for state politician is a proxy vote for president. You also get more opportunities to vote for president: every two years you elect the people who will elect the president. There would still be campaigns, but the presidential candidates would have to canvass for state legislators.
Plan A since November 9, 2016 was to bully Trump until he caved. Dragon energy. I’ve heard some people casting doubt on Trump Supreme Court... but Ginsburg up and dying removed screwed the Dems. Now they don’t dare go to court.
Surely they don’t do the recount unless they think it helps. Notice only Wisconsin and Georgia are being recounted. Trump wants to maintain as much as possible our trust in elections. A recount is like electoral surgery, instead of amputation. Each stare will be a different plan. Step one is win the election. After that’s done he can disestablish the machine.
In a normal situation, it’s governed by section 1: the state legislatures are passive in selecting electors if the votes are in before midnight, assuming there is a popular vote.
And presumably there is an agreement among both parties to award the electors to the winner of the popular vote, even if this is determined after midnight, even if the popular vote party does not control both houses of the state legislature. This is probably a good idea, in order to prevent riots.
They’ve never had a reason to break this agreement before (but they could; they are the law), except in Florida 2000, and apparently Hawaii 1960, because the popular vote winner was not seriously contested except in these, and because it is rare for a state legislature to be controlled by one party, and the popular vote to come in for the opposite. But it’s happening right now in AZ, WI, MI, PA, NC, and GA. If these states did it, NV would probably retaliate and do it too, but it would be Trump safely over 270. There would be riots and assassinations. But all six of these states have real grounds for contesting the counts, and all six have Republican majority state legislatures.
3 U.S. Code § 2. Failure to make choice on prescribed day
Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.
(June 25, 1948, ch. 644, 62 Stat. 672.)
I presume each State has a long time ago that winner takes all regards of what day, effectively nullifying 3 USC 1. But, Republican State legislatures could, in theory, change their rules right now and send a Republican slate of electors.
For what it’s worth, the Republicans control the lower house and state Senates of all WI, MI, PA, GA, NC, and AZ (and all states Trump won in 2016) https://ballotpedia.org/Partisan_composition_of_state_houses
https://ballotpedia.org/Partisan_composition_of_state_senates
If they went this way, all hell would break loose, because it means that (until the law is amended) the state legislatures elect the president, not voters.
And actually Minnesota is split, so there would be a gridlock, and so the electors would be appointed 8-2. 8 D (for their 2 Dem senators and 6 Dem reps) and 2 R for their 2 Republican reps.
3 U.S. Code § 2. Failure to make choice on prescribed day
Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.
(June 25, 1948, ch. 644, 62 Stat. 672.)
3 U.S. Code § 2. Failure to make choice on prescribed day
Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.
(June 25, 1948, ch. 644, 62 Stat. 672.)
It looks like the EC is toast then. Or at least, if we throw that question to SCOTUS, they will discover that it’s toast. If that’s the only path to victory so be it.
lt’s toast because, according to the letter of the law (textualism), there can be no recounts, at least for president. The states must appoint electors on the 3rd, or they appoint none at all. I imagine this hasn’t been followed to the letter for many decades, but it’s clear as day: there is no provision in law for electors to be selected after the 3rd. If that goes to the Court, then there can be no electors appointed, and it goes to the House, where we win.
I don’t know if Trump wants to take it in that direction.
edit: actually, read the next couple sections. It allows late selection. And if no electors are chosen, then basically each representative and Senator gets a vote.
The litigation will be specific to each state. In some states it might be best to invalidate only the late votes. In other states it might be better to call into question the entire election and throw the appointment of electors to the state legislature.
It would just be the contested states. PA’s legislature is Republican dominated in both houses, so there would be no fight.