The Senate Holds the Key to Donald Trump’s Re-election

In this post, I’ll describe what I believe is the most viable path for President Trump to be re-elected using provisions outlined in the Constitution, and federal and state laws that govern elections. (In addition to the written text of this post, a video version is provided at the bottom.)

This discussion centers on the Electoral Count Act of 1887. After this Act was passed, it was codified as 3 U.S Code Chapter 1, and several provisions were added. I’ve read the Act and a number of scholarly opinions on what it allows, what it prohibits, and what subjects it does not address. Most relevant to this discussion are sections 2, 3, and 4 of the Act (which correspond approximately to sections 5-15 of the 3 U.S. Code Chapter 1). For a deeper dive into the history and application of the Act, Justice Stephen Siegel published an insightful 131-page article titled, The Conscientious Congressman’s Guide to the Electoral Count Act of 1887.

It’s helpful to remember that the Electoral Count Act is broken into several sections. Provisions contained in one section do not necessarily apply to other sections. Failure to consider this point has led some to come to erroneous conclusions about the mechanics of the electoral process.

Of interest to most readers is how electoral votes for Joe Biden might be disqualified, and if that would set up a situation where President Trump could be re-elected. Let’s begin our discussion by looking at section 4 of the Electoral Count Act.

Section 4

Section 4 of the Act provides rules as to how objections are to be made by members of Congress to the votes of electors on the day votes are counted (January 6th). It specifies that objections must be made in writing and must be signed by a member of both the House and the Senate. An objection is sustained only when both chambers of Congress agree to sustain it. If only one chamber of Congress sustains the objection, that elector’s vote is counted. With a Democrat-controlled House of Representatives, it is unlikely that an objection by Republicans would be sustained since both chambers must vote in favor of it.

Section 2

Section 2 of the Act describes the process by which electors are to be chosen and it outlines the so-called safe harbor provision. The “safe harbor” provision can be seen as a conditional promise that Congress will not reject a state’s electors if disputes about their selection are resolved at least 6 days prior to the day electors vote. This year, electors voted on December 14th. The safe harbor period ended on December 8th. In order for a state to claim they met the safe harbor provision, disputes regarding electors would need to be settled by that day.

Section 2 permits a state to make a claim to Congress that they abided by all applicable laws when choosing and certifying their electors. A state is essentially asking Congress not to disqualify their electors on the premise that all laws were followed. Congress still reserves the right to reject a state’s electors if the state did not choose or certify its electors in accordance with the law. The state’s safe harbor claim would be rendered invalid if an unlawful process was used to choose or certify electors.

Violations of Law

Herein lies the problem for many states. Michigan, Wisconsin, Georgia, and Pennsylvania have been accused in court of violating state or federal law or the Constitution when they administered their 2020 elections, by which they chose electors. In response, these states have not denied that they violated the law. Their defense has been to demand that courts not overturn their unlawful elections because such a move would be unprecedented.

Section 2 of the Electoral Count Act requires states to conduct their elections lawfully. Any breach of the law in the manner in which an election is conducted or electors are chosen is grounds to question the validity of electors and their votes. If a state simply erred in administering its election, that would not be grounds to reject electors, But if fraud were evident or if officials knowingly violated the law, the entire election process is called into question and Congress would be justified in disqualifying that state’s electors.

Forensic Audits

Arizona’s largest county, Maricopa, has been ordered to conduct a forensic audit on its voting machines after the election was certified by the Governor. The safe harbor provision of section 2 is given by Congress as an enticement for states to resolve disputes before they certify their elections and seat their electors. Arizona did not resolve disputes regarding the choosing of its electors prior to the safe harbor day. In fact, Governor Ducey certified the election on the day there was a hearing where evidence of election fraud was presented. The fact that Arizona made no effort to investigate fraud invalidates its safe harbor claim, and Congress has grounds to reject its electors. Likewise, Antrim County Michigan was ordered to conduct a forensic audit after the state’s election was certified and evidence of fraud was uncovered. Michigan’s safe harbor claim is likewise invalid and Congress has grounds to reject its electors.

Any Time Is Fine

A careful reading of sections 2 and 3 of the Electoral Count Act reveals that there are no instructions as to how and when Congress can object to the choosing of a state’s electors when the objection is to the manner in which the electors are chosen.

Although it is true that a rule is provided governing objections in section 4, objections to provisions found in section 2 are not subject to the rules of section 4. Section 2 objections would be handled under the normal rules of Congress. For Congress to pass a bill, both chambers must vote in favor of it. If one chamber votes against it, the bill is not passed. The same rule applies to objections pertaining to sections 2 and 3 of the Electoral Count Act. For the vote of an elector to be counted, both chambers must agree that the vote should be counted. If one chamber votes to object to an elector, that elector’s vote is not counted. As long as the objection pertains to a section other than section 4, only one chamber’s vote is needed to disqualify electors.

If objections were made in the Senate to the electors of several states on the grounds that the election procedures violated state or federal law or the Constitution (conditions specified in section 2), and if Republicans voted by party line to sustain those objections, the votes of electors in those states would not be counted.

Sections 2 and 3 of the Electoral Count Act provide no rule as to how or when objections must be made, or when they must be voted on by Congress. If the Senate wanted to convene a special session tomorrow and vote on objections to electors, there is nothing to prevent them from doing it.

Alternate Electors Not Needed

A number of states have two sets of electors that sent certificates to Congress. One set of electors voted for Joe Biden and one vote for Donald Trump. In all cases, the Trump electors were not certified by the Governors of those states. The scenario I’m discussing doesn’t factor in two sets of electors. Donald Trump can be re-elected without them. The “dueling electors” scenario favors Biden and the Governors who certified those electors.

Counting the Vote

The President and Vice-President are chosen by a simple majority of 270 out of a total of 538 electoral college votes. Some have assumed that if a state’s electors were to be rejected, the total number of electoral votes would be reduced. If for, example, all 20 of Pennsylvania’s electors were rejected, some believe the total number of electoral college votes would be reduced by 20 to 518. Such a reduction would reduce the simple majority to 260 votes. There is no discussion in the Electoral Count Act or any other election law indicating that the total number of votes is to be reduced when a state’s electors are rejected. It would seem that the total number of votes remains at 538 (and the majority at 270) regardless of how many electors are rejected by Congress.

Joe Biden is currently claiming a total of 306 electoral votes. If he loses 37 votes due to electors being rejected, he would not have the 270 votes needed to win the election. Almost any combination of losses of three states for Biden would leave him short of 270 votes. For example, if Biden electors for Pennsylvania, Arizona and Michigan were rejected by the Senate, Biden would end up with 259 electoral votes—11 shy of the number needed. In this scenario, Donald Trump would also come up short of the number needed to win. If neither candidate has the required number of votes to be declared the winner, a “contingent election” is the next step.

If no candidate receives a majority of votes from the electoral college, the 12th amendment states that the House of Representatives is to take a vote to decide the next President and the Senate is to vote to decide the next Vice-President. The House vote is to be conducted with each state delegation receiving one vote. In the Senate, each Senator casts one vote. Currently, Republicans hold a majority of state delegations in the House. The vote in the House would likely re-elect Donald Trump. The vote in the Senate would likely re-elect Mike Pence.

All of this is based on the assumption that Republicans will maintain their majority in the Senate. David Perdue and Kelly Loeffler will be on the ballot in Georgia’s January 5th run-off election. If they lose,  the already slim majority for Republicans gets even thinner, making it all the more important for them to be elected.

The Senate Holds the Key

The courts have in most cases refused to even consider claims of election fraud and administrative malfeasance. Republican Senators have an opportunity, and I would argue, an obligation to provide the remedy that the courts have refused to. The remedy is to reject the electors of states that did not follow the law.

Republicans control the Senate. They have the ability to sustain objections to electors without the help of the House when those objections pertain to sections 2 or 3 of the Electoral Count Act. There is no time-frame specified as to when objections must be made or voted on. The Senate and the Senate alone has the ability to prevent Joe Biden from being inaugurated. Mitch McConnell cannot say we have to accept Biden because nothing can be done. If Biden becomes our next President, the blame belongs squarely on the shoulders of a Republican Senate that chose to accept the results of a fraudulent election when a constitutional remedy was available.

My call to action:

1. Email and call US senators and insist that they reject the electors of any state where election laws were not followed.
2. Tell them to object to the safe harbor provision of section 2 of the Electoral Count Act.
3. Tell them section 2 does not require the House to agree with the Senate in sustaining an objection.
4. Tell them section 2 has no date specified as to when the objection is voted on.
5. If you know a U.S. Representative or Senator, send them a link to this post.

VIDEO