Grasping at Straws: The Last Gasp of Republican Angst
I could swear I have written this exact same article before, but here we go again:
The Question of Sedition
Quite a few people are questioning whether the continued refusal of the Republican party to accept the results of the recent election might not constitute sedition.
I did some extensive research on this subject some years ago and I do not believe that anything has changed since then but, No, it is NOT sedition.
The Sedition Act of 1918, which is still in effect, specifically stipulates that the limitations on free speech – and that is exactly what the Sedition Act is, a limitation of the freedom of speech, among other things – are only permissible when the United States is at war. (The Sedition Act of 1918, Section Section 3 (first sentence.)
We are not at war and therefore it is impossible to charge anyone with sedition.
The Republicans Are Down to Their Last Straw
That notwithstanding, the Republicans only have one recourse at this point, which is to challenge the seating of individual electors or the entire delegation from a given state. Under the rules currently in effect, when the Congress meets in joint session to accept or reject the proposed electors, one member from the Senate and one member from the House must rise to object to the seating of either the delegate or the congregation.
Each time that happens, the Joint Session must go into recess and the two houses must meet separately to vote on the challenge. In order for the challenge to be upheld, both House of Congress must agree to bar the delegate or the congregation from that state. If either House votes nay, the delegate or congregation in question is accepted and seated.
There is zero likelihood that the Democratic-controlled House of Representatives will vote to uphold any such challenge.
There’s A Time Limit on These Negotiations
If the Republicans choose to challenge entire delegations, they would be challenging the delegations from Pennsylvania, Michigan, Wisconsin, and Georgia, which will take a total of eight hours. If they choose to challenge each delegate individually, they would be challenging 62 delegates. With a legal limit of two hours per delegate, that will take 124 hours.
I do not believe that it is possible to filibuster this process because of the time limit. If, for example, the Republicans attempt to filibuster in their deliberations, at the end of the two-hour period they would have failed to vote which means that the House vote would prevail.
But What If the Republicans Had Taken Over The House
The truly chilling reality, however, is that, if the Democrats had lost control of the House of Representatives, then the delegations from Georgia, Michigan, Pennsylvania, and Wisconsin would not have been seated.
At that point, the legislatures from those states would actually be free to appoint a different slate of electors.
This is quite different from the “Mark Levin” scenario that was being bandied about a few weeks ago. That scenario suggested that legislatures have the right to appoint the state’s electors, which is true but only up to the point where a popular election has taken place. If the state held a popular election, then the legislature of that state would be bound to accept the decision of the popular vote…but they could have appointed a slate of electors before the presidential election and that would have been legal if the state had voted to appoint the electors rather than holding a popular vote.
This Scenario is a Little Different
This scenario is different because, under this scenario, the electors for the affected states were rejected by the legislature, which then gives the state legislatures involved the right – and the obligation – to appoint a new slate of electors.
The Democratic governors in three of those four states might very well attempt to block their Republican legislatures from appointing their own slate of but when those electors tried to present their tabulations, we would end up right back where started because, then, the Democrats could challenge those four delegations with one Democratic Senator and one Democratic Member of Congress challenging the seating of the Republican delegations.
Either way, this would obviously be heading toward a Supreme Court which has shown a surprising reluctance to side with Donald Trump over this election.
And Then There’s This Other Deadline
This could go back and forth until 12.01 PM on January 20, 2021, when the Speaker of the House of Representatives, Nancy Pelosi would automatically become the 46th president of the United States under the Presidential Succession of 1947.
Personally, I believe this election is a done deal and the people who are raking up these old chestnuts are just doing so for the clicks.
koshersalaami
12/15/2020 @ 11:34 pm
McConnell congratulated Biden today. It’s over.
Alan Milner
12/16/2020 @ 12:00 am
That is not correct. The real close of the presidential campaign is actually on January 6, 2021, when the Electoral College certificates are opened, read and counted. It is during this process that objections to accepting the vote from individual electors or the entire delegation can be filed in writing and signed by at least one senator and one House member.
See page 9 of Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress, which outlines this process in exhaustive detail. https://fas.org/sgp/crs/misc/RL32717.pdf
This is the specific action that McConnell is now asking Republican senators NOT to do.
We are still in purgatory until January 6. Note that the new Congress is officially seated on January 3rd so that it will always be the new Congress that ultimately makes the final decision about who will be the next president.
Alan Milner
12/16/2020 @ 12:43 am
The new Congress is seated on January 3, 2021. On January 6, the new Congress will meet in joint session to open and count the electoral college votes, which seems the punchline for a bad joke because everyone in the world knows EXACTLY how many votes each candidate received but that isn’t exactly accurate because, on January 6, the electors from Georgia, Michigan, Pennsylvania and Wisconsin can be challenged simply upon a written challenge signed by one member of the House and one member of the Senate.
Each time such an objection is made, the joint session must go into recess and the House and Senate must vote separately to uphold or reject the challenge and both the House and Senate must vote to uphold the challenge,. Since the House isn’t going to uphold any of these challenges, this effort will fail….but it could delay the final decision on the 2020 election for a considerable period of time, even though no debate is permitted during these deliberations, and there is a strict time limit of two hours to consider each challenge.
This is the action that McConnell is trying to stymie because it obviously won’t work under the present circumstances, with the Democratic party in control of the Senate.
However, if they can delay the final decision by challenging each of the 62 delegates individually rather than challenging the entire delegation, which they could also do.
That means 124 hours worth of deliberations….nonstop deliberations because the rules of procedure for this process preclude virtually every motion in Roberts’ Rules of Order. However, they may be able to force adjournments. No one is going to spend 124 continuous hours doing this.
The Republicans can’t even walk out and then claim that there was no quorum because in this unique procedure you cannot move to adjourn because there is no quorum present….but that would be grounds for an emergency appeal to the Supreme Court.
Where does this all lead. If they can delay the process long enough – and long enough is just 14 calendar days – then, under the Presidential Succession Act of 1947, there having been no final confirmation of the outcome of the election, Nancy Pelosi would become president of the United States automatically at 12:01 PM on January 20….and there is nothing that anyone, including Donald Trump, Mitch McConnell, Joe Biden or Nancy Pelosi herself could do about it.
The only way out of this mess for Joe Biden would be for a member of the Delaware Congressional delegation to resign immediately. This would allow the State of Delaware to immediately appoint Joseph Biden to fill that vacant seat before January 20th so that the Democratic Caucus in the House of Representatives could then appoint Joseph Biden to the Speakership of the House, at which point, on January 20th, he would automatically become president.
This may sound very far-fetched but it is exactly in accordance with current law and I think that is what Trump is aiming for and what McConnell is trying to prevent, for the exact reason that you have suggested, control over the Republican party.
ArtWStone
12/16/2020 @ 9:47 am
I concur with Alan’s synopsis.
I had not thought about the Delaware twist.
We should likely expect a total mess on 01/06/21 and the possibility of it not being over until 01/20/21.
Future generations will need to better clarify process to avoid a despotic takeover of the USA by a more likeable traitor than Trump.
12/16/2020 @ 11:37 am
Art Stone, there was a chilling piece on PBS News Hour last night, they interviewed US citizens who’d come from countries with decades long to lifetime dictators. They talked about how people spoke of the dictatator, the obviously fake rationales, the lies that were told, the cronysim, the election fraud, and how familiar that all felt to them living here right now. Watch out, you’re being naive, was their overriding message.
12/16/2020 @ 11:29 am
oh god Alan, I hope you’re wrong! This has been so exhausting and I’m so eager for it to be over.
Two hopeful signs are yesterday was the first day I can remember where there no photos of Trump on the front page of either the Boston Globe or the Washington Post. It’s still half covid articles, but they are really starting to focus on Biden.
The other is that Mitch has spoken. It seems not a peep gets by that man, so if he says its over, I think it’s over, at least election challenge-wise. Reading Obama’s book, I’ve been kinda shocked at how much derring do goes on behind the scenes. Surely that will continue, but if Trump is now dead to McConnell, I think he must be dead to the GOP.
koshersalaami
12/16/2020 @ 7:41 pm
He isn’t dead to the GOP because he can still fundraise like mad and because his constituency is super-loyal.
12/17/2020 @ 12:30 pm
Look at your paper….any photos of Trump?
Second day of zero photos of Trump on front page of Globe or Post. Both have a small below the fold article about his Mar a Lago neighbors who don’t want him moving in, but no accompanying photo. I realize I’m a visual person, but this speaks loudly to me that Trump is fast fading news. The less we see of him in the media, the more dead he grows.
Even if he isn’t, quite, it’s delightful to not have to look at his picture.
Jonna Connelly
12/16/2020 @ 8:47 pm
I’m still trying to comprehend the fact of you, Alan, reading, studying and digesting all this legal information and I’m wondering if we should worry about you.
Alan Milner
12/16/2020 @ 9:55 pm
Jonna, you should start worrying about when I stop doing those things. I literally grew up in the news business.
Myriad
12/17/2020 @ 7:05 pm
I personally can’t wait until Jan 16 (or whenever) and I don’t even live in the US – the whole world is waiting for the US to start righting the ship o’ state.
Alan Milner
12/17/2020 @ 10:55 pm
Well, really, the election will be over on January 6, but we don’t get the keys to the car until January 20th.
12/18/2020 @ 1:18 pm
Are you? I am interested in how we appear to the world.
Much press lately about how the US has slipped from being the dominating world power because of Trump, but honestly, I’d be content to stop being the dominating world power. Life seems nice in Canada, peaceful, quiet, like you can go weeks without feeling compelled to look at a newspaper.
Alan Milner
12/18/2020 @ 1:49 pm
I wrote and erased a long answer. The short answer is that we outclass the next 15 countries in terms of military power. In terms of the economy, ours can survive without Chinese manufacturers, but the Chinese cannot survive without American consumers.
Myriad
12/18/2020 @ 3:48 pm
Alas, Canada lags behind the US but tends sooner or later to pick up on American trends – and our two biggest provinces and a couple of the smaller ones now have trumpian-inspired con (in both senses) governments busily dismantling things and letting the virus run rampant. My province is not one of these, but is hardly a place to relax and let down one’s guard.
Alan Milner
12/18/2020 @ 3:59 pm
That fills me with foreboding. The disease is spreading. Never have so many people become convinced to vote against their own self-interest. We are truly living in the midst of madness.
Myriad
12/18/2020 @ 4:15 pm
Hoping that installation of Biden & his cabinet will start to reverse things. Here, the provinces seem to be succumbing, but it looks like the Liberals under Trudeau are pretty sure to maintain federal govt. (Tho the fact that the oppo is clownish is no guarantee, right?)
koshersalaami
12/18/2020 @ 1:50 pm
How we appear to most of the world is they’ll be relieved to have an America that acts American.