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(Originally entitled “Trump’s North Carolina ‘Double-Dip’ Voting Advice”; re-edited for republication since it appeared on Sept. 14.)
Channeling his inner George Costanza (and perhaps his outer George Costanza as well), President Trump suggests that his North Carolina supporters double-dip at the ballot box.
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Double-Dipping
In mid-September, Impeached Liar President Trump told his North Carolina supporters that they should vote for him twice, so as to make sure that one of the votes counted. This is illegal under federal law. This led a longstanding friend to ask me on Facebook whether Trump or the people who follow his advice were likely to be prosecuted. And that led to this very long meditation on the topic, which I’ve re-edited after the Vice-Presidential debate.
After Trump’s broadcast if this suggestion, his defenders said that he was just joking — which might have been a viable defense to his prosecution, to the extent that it might lower his criminal state of mind from “intentional” to “knowing,” “reckless,” “negligent,” or even “brainless.” But: Trump later clarified that he meant that they should first vote first by mail and then vote again at the polls if it wasn’t certain that the mail ballot had counted — and whichever one got there first would count and the other will be discarded.
This might actually be a fairly sensible procedure to follow except for two things: (1) double-dipping at the polls is still clearly illegal under federal law and (2) it would put a massive extra strain on the vote verification and tabulating system just when we can least afford it, exacerbating what are already expected to be potential significant delays.
Oddly, his clarification that his comment was not so extreme, that it made some sense — and thus likelier to persuade voters to do as instructed — undercuts the defense that he was joking and could make him more likely to be prosecuted by Biden’s incoming Attorney General Anita Hill (or whoever).
Delicious as that irony may be, it won’t likely matter: the Department of Justice (at least under U.S. Attorney General Bill Barr) will refuse to prosecute him for solicitation of a federal crime, on the grounds that impeachment is the only constitutional remedy for crimes by the President. (They may also note that it turns on the factual matter of whether he was joking. But see above.)
Even if, prior to the general election, the House were to impeach him for soliciting double voting, the current Senate will not remove him and the Supreme Court won’t intercede — because it’s Trump.
2. What About Trump’s Dupes?
Some of Trump’s supporters will likely try to vote twice even if he was “joking.” If the legal system works, anyone who attempts to do so would be prosecuted by the DOJ. Some who attempt it will likely succeed at getting both votes accepted. They would be even more likely to be prosecuted — but (unless the strained election officers do their jobs), also to have those votes counted.
Yes, Trump’s poor unfortunate dupes would have a defense that they did so only because they were misled by the President — and while “mistake of law” is not supposed to be a defense, it’s still a pretty good excuse, and that might make it hard to obtain convictions, due to jury nullification, which weighs against going ahead with prosecutions.
Of course, the failure to prosecute undercuts deterrence against future such schemes. And note that some voters — cough minorities cough — might get prosecuted anyway.
If Trump wins, he will likely issue them a blanket federal pardon — or at least will pardon people individually if they apply. If he does so, the House might impeach him to try to neutralize the pardon, using the mysterious and never really explained “except in cases of impeachment” clause regarding the pardon power. That probably will not work, but it’s not inconceivable. The Congress probably will do this in regards to the execrable Roger “the President should declare martial law if he loses” Stone.
If Trump loses, he could still issue a blanket federal pardon — but probably would wait until it’s too late for the House to put together an impeachment that might neutralize them. If he doesn’t issue such a pardon, those whom he misled may be prosecuted. If he does issue one, they might be called to Congress to testify about how they got to the point where they would do this crime. That might be very beneficial to our society — although not to Trump.
The problem for Trump there is that federal elections are also state elections, and the voters will (I think it’s safe to presume) have also violated state law, for which he can’t pardon them. In North Carolina, Democratic incumbent Gov. Roy Cooper, won’t pardon them. But his challenger, Republican Lt. Gov. Dan Forest, just might. Forest’s chance of winning is of course higher if we presume that most extra bogus votes for Trump are also extra bogus votes for him.)
The defense might argue that these state laws are superseded by federal laws under the Supremacy Clause — but I don’t think that there are or will be five Supreme Court votes to uphold that.
3. So What is Trump’s Potential Play Here?
Now believe it or not, all of that is just a preface to a question I want to answer, which is: what the hell is Trump up to?!
First, Trump’s game is to do what he can to retain the Presidency — at a minimum through any legal means, though perhaps steps beyond that. For that, he needs a deciding vote on the Supreme Court to throw the election in his favor (largely by tossing out legitimate mail-in ballots not counted as quickly as he’d like, and others that can be tossed on technicalities, ideally without informing voters.
Second, specifically regarding Trump’s “double-dipping” advice, the minimum effect of Trump’s advice is to sow confusion into the process. That leads to greater delay — and as you’ll see, greater delay might help him win.
The biggest danger in this election — especially in states like North Carolina — where Republicans control both legislative houses (lower by 65-55, upper by (29-21) — is that Article II, Section 1, Clause 2 of the Constitution states (emphasis added) that:
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”
Over the past century, states have appointed the winner of their popular vote (or, in the case of Nebraska and Maine, that winner plus individual popular votes for their congressional districts) appointed. But there is no *constitutional* requirement that they do so. And a “legislature directing” arguably — though I think it’s unlikely — would not require a law itself, as a law requires presentment to the Chief Executive and that language seems not to refer to that, but possibly only a joint resolution. (And litigating that — under state law, but possibly in federal court — would take time.) If you’re interested in this, here’s a great article concluding that under a precedent established in 1932, you still need the Governor to sign off (especially important in a state with a blue Governor and a red legislature, like potentially decisive Wisconsin):
Given President Trump’s unprecedented suggestions that he would not accept the result of an election that he loses, the question has arisen whether he might attempt to subvert that result by exploiting an apparent loophole. Suppose that more ballots in a state are cast for Democratic nominee Joseph Biden’s slate of electors than for President Trump’s slate but that Trump, perhaps making unsubstantiated claims of fraud, prevails upon the state’s legislature to change the rules and directly appoint his Electors to the Electoral College. Such a course of action would raise two questions: First, can a state legislature change its method for selecting Electors after it has conducted a popular Presidential election? Second, if so, can it disregard the state constitutional requirements for legislation, including presentment for and the possibility of a veto by the governor where state constitutional law so requires?
There may be reason to think that the answer to the first question is no—that a state legislature cannot change the rules of the game after the final out—but we shall assume, purely for the sake of argument, that such a change would be permissible prior to the convening of the Electoral College. Nonetheless, the answer to the second question is clearly no. Even if a state legislature has the power to assign its Electors to the loser of the state’s Presidential election, it can only do so by complying with the state’s constitutional procedure for lawmaking, including gubernatorial participation.
Why? In short, because the Presidential Electors Clause does not delegate any authority to state legislative majorities to circumvent their established state constitutional procedures for enacting legislation. On the contrary, as the Supreme Court held in the 1932 case of Smiley v. Holm, when the Constitution assigns a lawmaking function to a state legislature—as the Presidential Electors Clause does—the state’s own constitutional requirements for lawmaking guide and constrain how the state legislature performs that function. The Presidential Electors Clause does not grant to state legislatures or state legislators any authority to make law outside of a state’s constitutionally mandated procedures. Rather, it gives states the authority to appoint electors and state legislatures the authority to direct the manner of appointment: “Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors.” U.S. Const. art. II, § 1, cl. 2. Thus, state legislatures have no power to choose electors themselves unless they first “direct” that the “manner” of appointment should be legislative selection of electors.
Directing the manner of elector appointment is a lawmaking function that involves laying out a legal framework for the appointment process. As the Supreme Court recognized in Smiley, when a state legislature performs a lawmaking function—even at the behest of the federal government and as directed by the federal Constitution—it must follow the legislative process outlined in its state constitution. The Court reaffirmed Smiley and the proposition that state regulation of elections is a legislative function that includes “the Governor’s veto” in the 2015 case of Arizona State Legislature v. Arizona Indep. Redistricting Comm’n.
Under federal law, to have its electors count, a state must appoint those electors by the first Monday after the second Wednesday in December — which this year is December 14. Subtract from that date the time required to do whatever must be done once the election is certified — and that’s the effective deadline for the counts (including recounts) in all states (& DC) to end.
The electors meet in their various states no later than December 14 and cast their ballots. The ballots are opened at a joint session of the new Congress in the first week in January. (As the incumbent Vice-President, presuming that he still is that, Mike Pence will preside.) The Supreme Court ruled this past July 6 that states may enact legislation to prevent electors from casting “faithless” ballots for their own choice — but it’s not clear to me which states have done or will do so and how effective the laws in the 31 states that had already had them were. ($1000 fines are frankly not enough.) In the absence of strong laws that void the votes of faithless electors and replace them with someone who will cast a faithful vote, duress and bribery are serious possibilities late this fall.
(As a side note: I haven’t found an up to date list showing what laws may have been enacted since that Supreme Court decision. The last one I see is from Bloomberg, right after that decision. Its map shows swing states like Iowa, Wisconsin, Pennsylvania, New Hampshire, Georgia, Texas, and Arizona to be among the 19 with no such laws — which seems pretty damned important!
If no candidate has a majority of the Electoral Vote when they open up the ballots during the first week of January, Congress immediately goes to what is called a “CONTINGENT election.” The House chooses the next President from among the top three candidates — so either Libertarian nominee Jo Jorgenson or the Green Party’s Howie Hawkins might be in the mix, but as neither are likely to win any electoral votes, only faithless electors could (and under these conditions, almost surely would if allowed) put them there — with an absolute majority required to win. The Senate chooses the Vice-President from the top two contenders. The Senate vote is straightforward — except that scholars disagree on whether Pence may cast the deciding vote for himself, in the event of a tie, to create a majority. (And, depending on the election results, a tie is quite conceivable.) If the office is left vacant, the new President would nominate a candidate and the Senate would approved them, or not. Presuming Nancy Pelosi is the alternative successor, my guess is that even the Republican Senate would.
Senate procedures are straightforward, more or less. But the House … oh, it does not work in the way that (unless you’ve already about heard this) you probably think that it does.
The House doesn’t decide by a majority vote. Rather, it votes by State Delegations — that is, each of the fifty states (and *not* DC) casts one vote, based on a vote of its Representatives. Yes, California gets one vote — and Liz Cheney, as Wyoming’s sole Representative, also gets one vote. In other words, that the Democrats have a 232-198 advantage in the House of Representatives, with one Libertarian and 4 vacancies, does not matter.
Idaho, Indiana, Kansas, Kentucky (4-2), Louisiana,
North Dakota (1-0), Ohio, Oklahoma, South Carolina, South Dakota (1-0),
Arizona (5-4), California, Colorado (4-3), Connecticut, Delaware (1-0),
Hawaii (2-0), Illinois, Iowa (3-1), Maine (2-0), Maryland,
Massachusetts, Michigan* (7-6-1), Minnesota, Nevada, New Hampshire,
New Jersey, New Mexico, New York, Oregon, Rhode Island
Vermont (1-0), Virginia, Washington
The following 1-2 states currently do (or may likely) have evenly split delegations:
Pennsylvania (10-10); Michigan*, as noted above, isn’t tied, but it could become tied (9-9) if Republican Peter Meijer beats Democrat Hillary Scholten in the slightly Republican leaning district being vacated by Justin Amash].
(I note the (1-0) states (with at-large members) because if one of them died or resigned after the election, but too late for a new election to be held, their state would not participate in the House’s contingent election. Just in case this didn’t already strike you as crazy enough.)
So, as it stands, under the current Congress — which, again, can still change its composition! — Republicans control 26 delegations, Democrats control 23 (counting Michigan), and one is tied. (If no representative would give way in Pennsylvania, its deadlock would lead to its not casting a vote for President.)
On this ultimate tie-breaker, it looks like Trump would win. We can then work backwards from there: If Trump would win in the event of a contingent election, then delay — overwhelming the officials in charge of voting, cutting the numbers of voting booths and early voting, needling the umpires to make them nervous and cautious even before the voting had begun, and most of all, agitating for a quick end to vote counting before it ends as the results trend increasingly blue — to cause a contingent election would provide a path to an legal but illegitimate win.
While most of the posturing about mail-in ballots is designed to give people a reason to doubt the legitimacy of an election that he loses — and perhaps to precipitate the kind of “Brooks Brothers riot” in Palm Beach that ended the Florida recount, except with more violence. including “recourse to Second Amendment remedies, if you know what I mean — part of it may be a strategic way to “wait out the clock” if he knows that he’d win the tiebreaker.
Some observers have argued that Trump-friendly states might decide that they will report their own choices rather than the public’s — whatever existing law exists to the contrary be damned. (Having a friendly Supreme Court, like Wisconsin has had for years, would certainly help here.) Failing that, in a state with a red legislature (like North Carolina) that votes blue — they might simply refuse to certify their electoral votes at all, due to supposed shenanigans or snafus. This could then force a contingent election, where — based simply on control of delegations — Trump would win.
Luckily for Democrats, I’ve left something out of the analysis of state delegations: Never Trumpers.
If Biden wins the popular vote, and if it seems clear that (if all the votes were counted and all states had certified and reported the votes) he would have won the electoral vote as well, it will be hard for Republicans from the states that voted for Biden but got squelched by their legislature to appoint electors who will vote for Trump. (Hard, but not impossible; Republicans are much better than Democrats at obtaining compliance from their supporters.)
It would be even harder for those who have made it clear that they dislike Trump to do so. They could say “party be damned” and vote for Biden. Or they (could) simply not show up for the joint session. (Pelosi will still be in charge; she’s not going to send the Sergeant-at-Arms after them.)
This is likely a problem only for Republicans. I don’t think that we’ll see many Never-Biden Democrats in Congress. (Out in the public sphere, sure. But not in Congress. They get the stakes.) So it would not take many faithless votes in Florida to flip the outcome, or ones Kentucky or even Utah to create a tie. Or one or more at-large reps could decide to stay home. Even North Carolina, if it goes hard for Biden and the gerrymandered 10-3 Republican majority shrinks to perhaps 7-6 could see one Republican stay home to create a tie (if one does so, the state casts no vote at all) or even switch to Biden (in which case the whole delegation goes to Biden.)
Or … we could even see the House intentionally delay reaching a result in its contingent election for President until after noon on Inauguration day: which would be a way to cast Trump aside in favor of the incoming Vice-President. If that happened, the new Vice-President would become “Acting President.” (In a circumstance where “Acting” is not the result of a temporary disability, which means that the President is expected to retake the reins. Given a permanent absence in office, such as a President’s death, or the failure, to elect a President, “Acting President” is the same as “President.”)
The easiest way to accomplish a failure to appoint someone would be to deny the quorum required by the Twelfth Amendment of the Constitution. That would mean NO ONE showing up from some states — which would require a significant amount of trust between parties.)
Delaying a resolution of the election could be tricky way to let Republicans elect Pence rather than Trump. (Remember, we’re talking here about a conspiracy between Never-Trumpers and Democrats.) If neither side gets to 270 Electoral Votes (because, for example, some states default, or some electors cast a faithless vote), and we move to a contingent election by state delegation, Never-Trumpers (if there are enough of them in the right delegations) could switch their votes to Biden. If they change enough delegations for Biden to get to 270, he wins. Or, just enough Never-Trumpers could change their votes to deadlock their delegations and keep their state’s votes from being cast, so that no one reaches the required 26 state delegations!
If they don’t elect a President by a majority of delegations by noon on January 20, then the new Vice-President takes office. If Republicans continue to hold the Senate, that would be Pence, so enough might consider it preferable. (Democrats may accept this for some consideration, for example on judicial appointments. (If Harris is likely to be chosen by the Senate, though, House Never Trumpers won’t likely do this.)
Unless, that is, Never-Trump Republicans and center-right Democrats decide that they don’t want Trump as President, or Harris as Vice-President immediately becoming President, either. Then the Senate could simply *refuse to choose* a Vice-President by noon on Inauguration Day. This would leave the position vacant — and vy the legal line of succession the Speaker of the House becomes President. But right now, that’s Nancy Pelosi — and of course Republicans won’t elect Pelosi.
However — the Speaker of the House doesn’t have to be Pelosi! In fact, it doesn’t have to be any of the incumbent members of the House at all! (It always has been, but that’s not a constitutional requirement.) It doesn’t even have to be someone constitutionally eligible — but in this circumstance that would be as likely.
So, the House — now voting as individuals, rather than as delegations, so that the Democratic majority finally matters again — could choose as its Speaker … [drumroll] … Joe Biden! Furthermore, this could happen as the result of a deal where Biden agreed to nominate as his Vice-President, with enough Democrats agreeing to confirm him along with, we’d presume, most Republicans — John Kasich! Or, if we want to see the woman elected to federal office that we were promised … Alaska Senator Lisa Murkowski!
Either Kasich or Murkowski would probably have to agree in turn to appoint a moderate Democrat — someone like (respectively) Claire McCaskill or Steve Bullock — to be Vice-President if they ascended to the Presidency. Kasich is only 66 and Murkowski is 63, either would probably live out their term.) They might have to agree to serve only a single term if this happens.
Two old white moderates would be music to the ears of centrists! (Why, we haven’t had that since Clinton and Gore left office!) It would also, of course, lead to riots by people from both sides. (Unity at last?) And Attorney General Harris would have fun prosecuting Trump and his family and his cronies for federal crimes, so it would not a total loss for her either — and she’d still be able to run in 2024.
So, my point is — does a constitutional amendment to eliminate the Electoral College seem any more reasonable to you now?
4. … Then Justice Ginsburg Died (An Update)
The above analysis was pretty sound until Justice Ruth Bader Ginsburg died and Trump and the Republicans decided to cram through the nomination of Judge Amy Coney Barrett while they still could, before the likely Democratic takeover of that body at noon on January 3 — which is a Sunday, which could conceivably lead to a later date. (I have a astoundingly crazy possible alternative way around that limitation that McConnell could try to use, but as I don’t want to distract you I’m rendering it in pale yellow. To read it, you can either highlight it or copy and paste it elsewhere — and the rest of you can just skip past it!
If you want what may be the craziest-ever scenario that still arguably stays within constitutional bounds, imagine if Republicans now held the majority in the House. As the Senate’s website notes: “The Twentieth Amendment to the Constitution directs that a new Congress convene at noon on January 3 in each odd-numbered year, unless the preceding Congress has by law designated a different day for the new Congress’s convening. On November 20, 2014, the 113th Congress completed action on H.J.Res. 129, setting the convening date for the 114th Congress as January 6, 2015. The joint resolution was signed into law by President Obama on December 4 (P.L. 113- 201). Congressional leaders planned that the 115th Congress would convene January 3, 2017, and that the 116th Congress would convene January 3, 2019, obviating the need for a law to set the date.” Note that in 2021 January 3 falls on a Sunday, so it would not be surprising to see that day changed … except that they’re not really in the passing legislation business right now.
Technically, it looks to me like Mitch McConnell could take this exception as allowing one Congress to set the starting date for the new Congress as January 3, 2023 — or maybe January 2, just to be sporting and give them a day in office — which means that he might do it. Normally, this would be tossed into a fiery pit by the Supreme Court — Justice Roberts, for one, would surely oppose it. But … Roberts won’t be the swing vote within a few days. (To the extent anyone will, it would probably be Gorsuch, who is way way way rather than way way way way way right-wing.) If precedent is against it — Thomas, Barrett, and probably Alito won’t care. Now the relevant thing in our timeline is: what if McConnell claims that, with respect to the Senate alone, a Senate resolution has the force of law? Any reasonable Supreme Court would laugh at that, stick it halfway up McConnell’s nose, and set it on fire. But this upcoming Supreme Court? Seriously, who knows their limits? This gambit would be unconstitutional based on a rarely used principle known as “the structure and function of government” — but would they say so?
As a final note, one potential Constitutional argument against such a gambit — because it’s the only one that mentions the timing of Congressional elections, at least implicily — lies in the otherwise mostly inert 27th Amendment — the one exacted 200 years after it was first proposed by James Madison — which says that no law enacted under one Congress, if it changes the compensation of members of Congress, can take effect until an election had intervened This thus gives the public the ability to vote out any scoundrels who supported it, (and if you’re interested in such a thing, refer to the discussion in this really great additional article,)
Oddly, in any era of early voting, one might imagine that both houses of Congress could quickly and recklessly pass a bill in which a provision was buried granting them each one billion dollars per day in compensation and have a deeply reckless President sign it before Election Day, satisfying the letter of the law, but that seems unlikely.
All right, now that that huge footnote is out of the way, let’s consider how President Trump — who brazenly stated that the main reason he was appointing, and demanding the rapid confirmation of, Barrett so quickly to have her in place to vote on any election case — could use a compliant the Supreme Court to get himself elected despite the popular vote — especially votes in the swing states.
Trump can get two bites at this apple, with separate cases filed in federal court and state court. Each Justice is assigned to supervise and accept emergency appeals from at least one Circuit — and in Election cases, where the clock on both appointment of electors (Dec. 9) and taking office (Jan. 20) is running, imposing or lifting a stay (pause) on election counting can be critical. So I expect rational Republican advisors to concentrate in states whose supervising circuit Justices have reliably pro-Trump track records.
Chief Justice Roberts has three circuits (4th, DC, and Federal), Sotomayor two (6th and 10th), Alito two (3rd and 5th), and everyone else one (Breyer 1st, Kavanaugh 7th, Gorsuch 8th, Thomas 11th). Ginsburg supervised the 2nd Circuit — (New York, Connecticut, and Vermont — none of which are likely to have big election cases).
Roberts can shuffle circuit assignments around (assignment happens only “from time to time”) so Barrett will presumably take over for Ginsburg and hear appeals for the 2nd Circuit. (Roberts may shuttle her to a different — less choice and liberal — circuit, but I doubt until after Election Day. Here’s the map:
Gold (with CA) is 9th); medium blue (with Colorado) is 10th; green (with Minnesota is 8th), whatever you call that color with Illinois is 7th), dark brown (with Texas) is 5th), dull gold (with Michigan) is 6th, medium gray (with Florida) is 11th), reddish brown (with Virginia) is 4th, beige (with Pennsylvania) is 3rd, light-medium brown (with New York) is 2nd, and the dark teal (with Maine) is first. (DC and the federal district are in dark green.) Whoever chose this set of colors should be fired!
Given this lineup, I’d expect to see cases going to the SCOTUS filed in either Pennsylvania, Texas, or (non swing states) Mississippi or Louisiana (Alito); Georgia or Florida (Thomas); Iowa or Minnesota (Gorsuch); or Wisconsin (Kavanaugh). Despite their being swing states, cases from Michigan and Ohio would go to Sotomayor and Virginia, and those from North Carolina would go to Roberts. Again, this calculus changes if Barrett doesn’t take over the 2nd.)
Some of the claims expected in such cases have already been brought forth:
- He will try to disqualify mail-in ballots before they are all counted, first trying to stop counting of all not received by Election Day, then perhaps those not received by three days after — regardless of existing rulings that allow it.
- He will try to ensure that voters to not have the chance to “cure” real or imputed errors in their ballots, such as:
- signature mismatches
- failure to update a changed address within a city or county
- failure to insert a ballot within its signed envelope into a “secrecy envelope” to prevent anyone from seeing or tampering with it
- (More to be added)
- (More to be added here too.)
The final thing that I expect to happen if Trump accepts that he’s lost the office ahead of January 3, or January 20 if Republicans hold on to the Senate, is that Justice Thomas will resign and his far younger replacement will be confirmed by the Senate even if he does so at 11:00 on Deadline Day. And maybe Justice Alito will too.
Joe Biden doesn’t want to expand the Supreme Court? Oh, he will!
You may want some nice leisurely weekend reading. Well, here you go!
Update 10/26 regarding the status of state “faithless elector” laws. This news is not pretty.