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2020 Presidential Election -- Biden v Trump: Sleepy Joe vs Dopey Don [Results begin on page 409]

Patrick Bateman

By Patrick Bateman
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Bama Chick
Bama Chick

I am so thrilled tonight! I spoke with my mom and asked her how my dad was taking the election. She said after every network declared Biden the winner, he turned off Fox News and said “Well, glad t

HenryJames
HenryJames
Thatguy
Thatguy

This was my experience in Galveston County, except for one thing. I came in and presented my ID to the geriatric at the front who printed out my pin number. I took my pin number to a table where two B

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washparkhorn

washparkhorn 9939

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The legal pushback on the Ken Starr (and Mark Levin) argument that state legislators can nominate whomever they wish as electors.  Lessig: no can do. 

"As the counting of votes continues, an anti-democratic suggestion has taken hold among supporters of President Trump that Republican state legislatures could prevent a Biden presidency by directly appointing Trump-supporting electors to the Electoral College, rather than by sending a delegation of electors in line with their states’ popular votes. “GET READY TO DO YOUR CONSTITUTIONAL DUTY,” tweeted conservative radio host Mark Levin on Nov. 5. Soon after, Donald Trump, Jr., retweeted Levin. Later that night, Sen. Lindsey Graham joined the bandwagon. The idea is not entirely new: In September, Barton Gellman in The Atlantic reported that some state legislators were already considering this gambit—though Pennsylvania Republicans soon rejected the notion.

There are a host of clear legal problems with this suggestion, including that electors are required to be selected on Election Day, not later (absent circumstances not present here), and that due process requires a state to give effect to the fundamental right to vote for president. What’s more, such a move would justifiably be seen by much of the public as a coup. It is a terrible idea."

Spoiler

 

But even more fundamentally, the Supreme Court has unanimously undercut the core premise to this argument for legislative superpower. And we should know. We argued the opposite before the court this year, in the context of presidential electors, rather than state legislatures, going rogue—and we lost.

The legal theory that would allow state legislatures to go rogue and appoint electors without regard for the popular vote rests on an argument made by Chief Justice William Rehnquist in Bush v. Gore, for himself and two other justices. On this view, a legislature is unconstrained in its power to set the manner by which electors are selected—meaning that even after an election, the legislature could ignore the results and select a different slate altogether. A recent opinion by Justice Brett Kavanaugh suggests that Rehnquist’s argument may again be on the rise.

But advocates for this view need to recognize that between Bush v. Gore and today, the Supreme Court has unanimously decided that presidential electors are not actually “electors” but instead are bound to the people’s vote. That principle that cabins elector discretion must also constrain legislatures—at least if the country is to avoid an abomination that the Framers expressly rejected.

At its core, Rehnquist’s argument in Bush v. Gore defended the special structure that the Framers had erected for selecting the president. Central to that structure was “electors” — people chosen for the sole purpose of choosing who the president would be. Those electors were to be selected as the legislatures directed. The Framers had considered giving Congress the power to choose the president. They rejected it. They considered giving governors the power to choose the president. They rejected that too. They considered giving state legislatures the power to choose the president but feared that would make the president too dependent on the states, or on the political games played by the states, so they expressly rejected that idea as well. And they considered giving the people the power to choose the president directly. For many reasons — including most prominently the practical impossibility of running a campaign when it took four months to cross the nation — that idea never took hold.

Instead, the Framers crafted a distinctive structure, echoing the plan Maryland had for selecting its governor. Electors were to be selected in the manner the legislature chose—but it was electors, not state legislatures, who were to decide who the president should be.

This structure did create, as Rehnquist observed, unique features within the constitutional design. In exercising their power to decide how electors are to be chosen, legislatures could not be constrained by either state law or the state’s constitution. If a state’s constitution, for example, said that the people shall choose the electors in an election, that rule did not in fact constrain the state legislature. Instead, “after granting the franchise” to the people, as a majority of the Supreme Court in Bush put it, a legislature could “take back the power to appoint electors” “at any time.” Or put differently, when the legislature acted pursuant to the power granted to it by Article II, it stands above any limits imposed by state law.

We each made a similar argument to the Supreme Court in May when, in Chiafalo v. Washington and Colorado v. Baca, we defended the Framers’ plan for presidential electors. Electors, as we argued—though selected in the “manner” that the state legislatures directed—were given their power by the Constitution, not state legislatures. That power, we argued, could not be constrained by state law, for precisely the same reason that state law could not constrain state legislatures. Electors were above state regulation, just as state legislatures were.

This is not the only context in which the Supreme Court has recognized that state legislatures have superpowers granted to them by the federal constitution. In Leser v. Garnett (1922), the court had held that even a state constitution could not constrain a state legislature when that legislature was ratifying an amendment to the federal constitution. When exercising that ratifying power, the legislature performed a “federal function.” That function could not be constrained by the state in any way, whether by its constitution or, as the Supreme Court had held in an earlier case, Hawke v. Smith (1920), by an express vote of its people.

Such cases do support the theory of legislative superpower birthed by Chief Justice Rehnquist and echoed by Justice Kavanaugh. But that superpower is to the end of selecting electors. The Framers expressly rejected the idea that the state legislatures themselves should choose the president. The corruption of post-election bargaining was obvious to them. They therefore expressly avoided giving any existing entity the power to select a president, so as to avoid that obvious corruption. Instead, the entity that was to make that choice was to be one that was free of any obligation to anyone —that is, the electors themselves.

In Chiafalo, however, the Supreme Court unanimously resolved that history had overtaken the Framers’ design. Nine justices agreed that even if the Framers had assumed that “electors” would be free to cast a vote however they chose, an emerging presumption of democratic control had displaced that original design. Whatever they originally expected, the court held, there was nothing in their words that constrained the power of the state to ensure that it was the choice of the people that would ultimately decide how the electors would vote. Elector discretion had been displaced by democracy. “Here,” as Justice Elena Kagan wrote in the closing line of her opinion, “[w]e the people rule.”

If the electors have lost their superpowers to an emerging democratic consensus, then legislatures must have lost them as well. It would be a complete perversion of the Framers’ design to remove the constitutional discretion of electors but accept a constitutionally unconstrained power in the state legislatures. The framers expressly decided against that obviously corrupt design: “You want Pennsylvania’s electoral votes? How about more tariffs for steel?” And if the justification for ignoring their choice in Chiafalo was democracy, that same justification must now mean that the legislatures have no special power to deviate from the choice of the people, at least once that choice is made. If “the people” constrain the electors, so too must “the people” constrain the legislatures.

Applied in a principled way, Chiafalo changes the scope of any legislative superpower. Maybe in the context of the precise question raised in Bush v. Gore, there remains a presumption in favor of legislative text over judicial constructions of that text. But Chiafalo must mean that state legislatures cannot now act against the vote of the people any more than presidential electors can.

Thankfully, it appears very unlikely that any legislature will accept Mark Levin’s challenge, and select a slate contrary to the votes of its people. But if any legislature were to take up the call, the Supreme Court would be asked to review that unprecedented act. Its ruling should be clear that this move is illegal. Prominent originalist scholars have noted how far Chiafalo strayed from the framing design. It would be extraordinary now if, in the name of originalism, the justices would sanction an even greater perversion of the original design. The greatest charge against originalism is partisan selectivity. We do not believe that selectivity is inherent to originalism. But few would agree if, after ignoring the Framers in Chiafalo, the Supreme Court invoked the Framers now to defeat a candidate who has won an absolute majority of the public’s vote. Whatever else that result would say, it would certainly not communicate that “[w]e the people rule.”

 

https://www.lawfareblog.com/state-legislatures-cant-ignore-popular-vote-appointing-electors

 

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BradInATX

BradInATX 9208

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I have to say I'm astounded that the swingy state throwing down the "miss me with your fraud BS" hammer with the most force is Georgia of all places.

I wonder why. Do they see the state as purple now and know that being a GOP wingnut means long-term harm to their careers there? Positioning as moderate Rs?

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sidis

sidis 9832

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Posted (edited)

The grift is so strong. Separating tards from what little money they have is the true American pastime. 

https://www.washingtonpost.com/investigations/postal-worker-fabricated-ballot-pennsylvania/2020/11/10/99269a7c-2364-11eb-8599-406466ad1b8e_story.html
 

Quote


Project Veritas founder James O’Keefe on Saturday hailed Hopkins as “an American hero” on Twitter. A GoFundMe page created under Hopkins’s name had raised more than $136,000 by Tuesday evening, with donors praising him as a patriot and whistleblower. The fundraising page was removed by GoFundMe after this story was published Tuesday, a spokesman for the platform said.

“Your donations are going to help me in the case I am wrongfully terminated from my job or I am forced into resigning due to ostrizization [sic] by my co-workers,” the page states. “It will help me get a new start in a place I feel safe and help me with child support until I am able to get settled and get a job.”

Edited by sidis
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SaucyJack

SaucyJack 3504

Posted
Posted
4 hours ago, BehoId, The Underminer! said:

Since PA is really the ace up Joe's sleeve this election, imma go ahead and call him JoePA

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3 hours ago, GhostOfTomJoad said:

How long into Pence's vacation does he find out via Twitter he's been fired and replaced by Ivanka? This would make her the first female veep ahead of Kamala.

 

Misread that as Howie Long into Pence's vacation... whoa, but glad for the dude

 

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2 hours ago, Beau Vine said:

He knows a brimful of them.

...and there all on 45

180525-donald-trump-ac-617p_cf708db31750

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cactusflinthead

cactusflinthead 27606

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3 minutes ago, Loch Ness Monster said:

Trump bankrupted a casino! And cried about fraud when he lost an Emmy. 

If I'm afraid about anything it would be one of his supporters doing something cray cray. DT will be out in January.

Oh we're going to see crazy. That kid that got a visit and the other ones talking don't worry me so much. It's the ones that don't talk. Ted, the unabomber. The LV shooter. The Sandy Hook shooter. Those are the worries. Smart enough to pull it off and keep quiet in the process. 

I'm not a member in good standing on the ledge, but I can see their concerns. 

They already tried to foist the violence in Portland off on someone else. Again, not very savvy to the nuances of cameras and witnesses. 

It's the ones that don't say anything that are a problem. Hell, it took Ted getting published and his brother recognizing his writing to get him

Eric Rudolph. Yeah, him too.

I'd like a word with any of y'all that agreed with shutting down the effort to root out this bunch of deplorables. Yeah, it's been a while. God, that's probably a decade ago. 

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Thiefery

Thiefery 5018

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lol they are having all these sworn affidavits that prove of a rigged elections.. from the media to the actual vote counters.. Man this country is fucking sad .. I had to turn it off..so much BS being reported by this clown and his blonde bimbo..but families are eating this shit up..pathetic.

 

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BrickHorn

BrickHorn 18289

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Just now, 4th&Five said:

 

They’re not trying to win in the courts. That’s a diversion. The court cases are only there to fuel the narrative of election improprieties and a parallel story of a biased judiciary. They are priming the cult to support a power grab through extrajudicial means. “If there was massive voter fraud and the courts did nothing about it, what other choice did the President have? He had to save us from the Democrats trying to steal the election.” 

That’s the play. Trump is not and never has been interested in persuading reasonable, impartial people. He’s talking to the marks. Always. There are a lot of them, and those idiots take a completely different lesson from the inevitable failure of these frivolous suits. 

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ndawg

ndawg 1242

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Just now, BrickHorn said:

They’re not trying to win in the courts. That’s a diversion. The court cases are only there to fuel the narrative of election improprieties and a parallel story of a biased judiciary. They are priming the cult to support a power grab through extrajudicial means. “If there was massive voter fraud and the courts did nothing about it, what other choice did the President have? He had to save us from the Democrats trying to steal the election.” 

That’s the play. Trump is not and never has been interested in persuading reasonable, impartial people. He’s talking to the marks. Always. There are a lot of them, and those idiots take a completely different lesson from the inevitable failure of these frivolous suits. 

Somewhat this, but also a general ongoing strategy of constantly feeding the news cycle with chaos'n'bullshit because that tends to work out well for him. He doesn't think two moves ahead, he just shakes the tree and picks up anything that lands.

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Loch Ness Monster

Loch Ness Monster 3533

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Posted

Guys- Trump is just gonna bitch on Twitter for two months and fire people.

Go on rallies for people to tell him how awesome he is and give him money/golf until his McDonalds & no exercise habit catches up with him.

Actually think it might be good for Trumpers to slowly realize they lost. Day by day they realize its over.

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heso

heso 2816

Posted
Posted
16 minutes ago, Thiefery said:

it's not something big..it's all fucking lies man.. how the hell does FOX allow all these heresay, there's nothing concrete, just accusations 

 

Because they care more about their viewers than anything else. The rubes have spoken: Trump is god and anyone that refutes that is a leftist commie. 

Fox tried to do the right thing on Saturday. They called the race for Biden and then tried to shift into opposition party mode. The trumpkins would have none of it. Their god said he was cheated and Cruz and Graham validated it. Once someone outside of the Trump family spoke up to support that narrative the breaks were off and the GOP went full throttle into the abyss.

From where I’m sitting, it LOOKS like this is all just pandering to the base and to Trump’s bruised little ego. He has the base, and if he does indeed start a PAC, he’ll have all of the small Trumper money. As of right now, he’s just asserting his complete control over the Republican Party and the politicians have no choose but to play along. 

If this goes 1 day past November 23rd and PA doesn’t certify their election results, that’s when shit starts to get real. Up until that point it’s all just pandering and preening for Trump and his minions. 

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