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Friday, October 07, 2016

GOP repudiation of Trump before 11/8? If so, then what?

As I write this on Friday night October 7, there is renewed talk of GOP leadership disavowing Trump.  True, Trump will still be on the ballot that we citizens cast.  But suppose the GOP leadership publicly announces that it will ask GOP electors, when they meet and vote on 12/19, to cast their presidential vote for Pence.  Then some GOP-leaning superPACs spend a lot money before 11/8 informing voters of this plan.  

Suppose this plan is successful, insofar as it causes on Election Night, 11/8, the media to announce that GOP electors were chosen in enough states to amount to 270 Electoral College votes. Then on 12/19, the GOP electors all do as intended according to this plan: they cast their official Electoral College votes for Pence, not Trump.  Pursuant to 3 U.S.C. 9-11, these electors all sign their certificates showing Pence as their choice and send the certificates to Joe Biden, as President of the Senate. 

Now, someone might claim that some of these electors violated a previous pledge they made to cast their Electoral College votes for Trump.  Maybe this claimant even arranges to send to Biden a separate set of Electoral College votes cast by replacement electors who were substituted because the faithless electors violated their pledge. (This move would be reminiscent of 1876.) We can assume that the claimant wouldn't send to Biden 270+ Electoral College votes for Trump, but some number short of 270 in the hope of depriving Pence of the presidency.  

What would happen when Biden receives two conflicting sets of Electoral College votes from some states, one set for Pence, and the second set for Trump? Under the Twelfth Amendment and 3 U.S.C. 15, the new Congress meets on January 6, 2017, to open these Electoral College votes.  If the Republicans control both the Senate and the House and stay organized on behalf this plan, they could vote to accept all the Electoral College votes for Pence and reject all the Electoral College votes for Trump, and Pence would be constitutionally elected President.   If, however, the Democrats control the Senate (perhaps unlikely as a practical matter if the GOP electors reached 270+, but still worth considering), while the Republicans retain the House, the situation gets even more complicated. If  for some states the Senate votes to count the Electoral College votes for Trump (would they in an effort to deprive Pence of the White House?), and the House votes to count the conflicting Electoral College votes for Pence, then under 3 U.S.C. 15, the conflict is supposed to be resolved by the governor of each state that sent to Biden two or more sets of conflicting Electoral College votes.  But some scholars think that 3 U.S.C. 15 is unconstitutional, and it is unclear what happens if both conflicting sets bear the governor's signature.

Anyway, let's suppose for simplicity that the governor-as-tiebreaker in each state is accepted, and the consequence is that Pence is pulled below 270--perhaps because Pennsylvania's Democratic governor follows the Senate's lead and picks the Trump set of electors. If Pence falls below 270, then the House of Representatives must choose the President with the choice confined to Pence, Clinton, and Trump.  But under the Twelfth Amendment, each state has one vote, and it takes 26 states to achieve a choice (not just a majority of states that vote in the House).  If 26 states vote for Pence, then he's the constitutionally elected President (by the different route than above).  But if no one gets 26 states (because some state delegations are evenly divided between Democrats and Republicans, and Pence can't quite reach 26), then under the Twentieth Amendment whomever the Senate has picked as Vice-President becomes the Acting President. 

So if the Democrats control the Senate, they would have picked Kaine as Vice-President. But if the Republicans control the Senate, who would they pick?  It depends on whom the GOP electors voted for on 12/19 when they picked Pence for president.  As I read the Twelfth Amendment, they are not supposed to pick Pence for both President and Vice-President.  So they would need to come up with another name for Vice-President, who might end up as Acting President.

All of this is highly speculative, of course, and even if the process starts down this road, there might be some wild and unexpected twists-and-turns.  But this year's presidential election already has been wild and unexpected, so who knows? It pays to speculate a bit, just to try to be prepared for strange scenarios that might actually unfold.

Posted by Edward Foley on October 7, 2016 at 11:15 PM | Permalink


Thanks, Richard. A second set of Electoral College votes sent to Congress/Biden does not need to be justified under state law (or otherwise) in order to require Congress/Biden to deal with it. That's the most important overlooked lesson of Hayes-Tilden in 1876, as I discuss in Chapter 5 of my book Ballot Battles. It is often forgotten what happened towards the very end of that dispute, when the Democrats submitted a spurious second certificate of Electoral College votes from Vermont and in doing so threatened to derail the whole process of counting the Electoral College of votes--and this happened on February 28, as Inauguration Day loomed on March 4.

So a key question is not whether the second set of Electoral College votes would be legally sound, but how Biden and Congress would respond to its submission under the Twelfth Amendment and 3 U.S.C. 15.

Posted by: Edward Foley | Oct 8, 2016 8:51:41 AM

Richard Winger

In CA the Trump electors stand at 108 because of two overlap electors. But there are six other acting GOP electors that
Jim Brulte had no authority to replace, viz., Whitman, Maldenado, Villines, Strickland, Cooley, & Dunn. What Brulte May of done on October 3rd was in addition as being two days late in filing with the CA SOS over stated his authority of appointment by six replacement electors. Brûlte was limited to replacement of Walters only. We also have the issue of the common law "weekend" viz., 12 o'clock noon on October 1st until midnight. Remember
only October 2, 2016 was a holiday under the CA Government Code only. The filing by the Chairman of the GOP looks
not correct to me. I am waiting too see the results of the Public Records requests to see the extent of the damage the GOP party leadership to Trump/Pence ticket. Mark Seidenberg, Convention Chairman, American Independent Party of
California, which nominated Trump/Pence ticket on August 13, 2016 in Sacramento. Please note
CA Attorney General Opinion 62-12. This AG opinion makes clear the Brilte filing on October 3rd was late in filing under both the bylaws of the GOP and CA Election Code 7300.

Posted by: Mark Seidenberg | Oct 8, 2016 3:58:01 AM

There would be no basis for any state to send in two sets of presidential electors. There would be no dispute as to which presidential electors had been elected in each state. As for the three states that say a presidential elector who votes differently than the person that elector had promised to vote for is deemed to have resigned, those laws don't work when the state's entire slate of electors "disobeys." The laws in those 3 states say the "disobedient" elector is to be replaced by the other electors. But if all the electors "disobey", there would be no electors to replace them, so it can't happen.

Posted by: Richard Winger | Oct 8, 2016 1:00:50 AM

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