Mail-in delays

(AP Photo/Elaine Thompson)

I wrote a diary a couple weeks back about strategies the Trump campaign should be working on.  Since they have multiple people working on this full time they have probably already considered everything I will write and are either pursuing it or realized flaws in my thinking.  However, I do want to chase down an idea about delayed results in mail-in states.  First the important bit, Amendment 12

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;

The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.

Notice the important bit about “if such number be a majority of the whole number of Electors appointed.”  States have already decided the manner in which their electors are to be appointed.  They will likely not have the ability between November 4th and December 14th (elector voting day) to change that method.  The very interesting part will be the certification of electors.  Let’s hypothesize that Trump secures 265 electoral votes, and Biden secures 255 electoral votes, but mail-in problems have caused the certification process to be delayed in Pennsylvania.  Whoever wins Pennsylvania and their 20 electoral votes wins the electoral college.  Biden is ahead by 50,000 votes in Pennsylvania, but 80,000 mail-in ballots are in dispute.  Consider the possibility that the count continues to be delayed and the electors are not certified according to Pennsylvania law by December 14th.  What then?  The electors still gather, vote, and transmit sealed results to the President of the Senate who will direct the count.  The person with the majority of the whole number of Electors appointed is then president.  But what about Pennsylvania??!!?!  They never appointed electors and so forfeit their participation in the electoral college.

I sure hope the Trump campaign is developing the legal team to pursue this as needed.  By the way – Get the district judges seated.  There are 70 open seats.  When your case is assigned do you want it assigned to an Obama judge?  Their are 6 vacancies in New Jersey, 3 in Ohio, 4 in Illinois, 5 in Washington, 18 in California, 2 in Nevada.  That is where the legal fight will happen.  Seat your district judges before November.