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.