As explained in Notes 48, Trump’s strategy is to keep disputing postal votes until the December 8 deadline so that Biden has less than 270 electoral college votes. With some help from Republican State legislatures and governors as well as Vice-President Pence presiding in the joint session counting the votes, this could end up throwing the election to the House of Representatives voting by State delegations. If Republicans still have a majority of representatives in 26 States then Trump wins.
See also the links in comments to Notes 48 and also the complex legal details:
A plausible outcome would be a Democrat majority in the House of Representatives withdrawing from the joint session in protest at Pence rejecting disputed votes from Democrat Electors in a swing State and preventing the vote by State delegations occurring at all, so no new President could be inaugurated when the terms of Trump and Pence expire at noon on January 20.
Under Congressional legislation for Presidential succession, the next in line as Acting President would automatically be the Speaker of the House, Nancy Pelosi, or her replacement elected by the Democratic majority that take their seats on January 6.
So of course we now have an article in the Wall Street Journal explaining that the legislation on Presidential succession is unconstitutional as the Constitution requires succession by an “Officer”, implicitly an officer of the United States Executive Branch, while the Speaker of the House is an officer of the legislative branch. Consequently the next in line turns out to be the Secretary of State, Republican Pompeo who is, as required, an officer of the Executive branch.
Equally naturally the article is by a Republican.
A Winding Constitutional Path From Trump to Pence to Pompeo
The president is sick, so here’s a review of the laws governing succession.
Although presented as about succession in the event of Trump dying from covid-19, it is actually about the planned disputed election battles in the Supreme Court.
Less naturally, the Republican author is John Yoo, best kown for his legal memos in support of torture in the “War on Terror”:
An opposing analysis, with links to earlier legal arguments is here:
Do Professors Akhil and Vikram Amar Still Think the Presidential Succession Act is Unconstitutional?
The indications may just be aimed at giving the Democrats and the liberal media something to get hysterical about, and/or to keep up morale amongs Trumpists that they still have some hope.
The level of dysfunctionality involved in this stuff is quite spectacular. A notorious war criminal would not have been chosen to write the legal analysis if the Wall Street Journal had somebody more credible available.
But unless Biden gets a big enough landslide for the result to be clear without postal votes on November 3, it looks like there will be a protracted battle.
It seems unlikely that the fight would be just among lawyers.
Ross Douthat at the NY Times has a useful analysis:
“There will be no Trump coup”
I broadly agree. Trump has little potential as an authoritarian dictator. Liberal fantasies about that reflect their own extremism.
But, as he points out, there is a real danger from the impending return of liberal domination of US politics. They are even more thoroughly corrupt and disconnected from the people than ever and a Biden administration has nothing to offer the people who reject that.
There is still no left opposed to them and the opposition to them will still be from the right.
If there is a big enough landslide on the election night so that subsequent postal votes would not affect the outcome, then legal battles in swing states will be pointless.
Likewise if Democrats win a majority of seats from a majority of States in the House (including smaller Republican States that they don’t usually win).
Likewise if Democrats win a majority in the Senate.
All three are possible.
But if none occur there will certainly be drama from election eve to December 8.
That lays the basis for Trump to retain leadership of a large right wing party loudly convinced that the election was stolen by the corrupt liberal elite.
Even if the drama ends with the Electoral College votes on December 8. That will still result in consolidation of a far right mass based party in the USA.
Worse if it doesn’t end there but only in Congress or the Supreme Court.
I don’t see any likelihood of Trumpists being able to retain office in the face of what is clearly a majority of both the people and the establishment hostile to them.
But the “stab in the back” legend has a powerful appeal on the right and we will still be stuck with a weak inept ruling class and no left wing opposition.
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