MATTER OF TIME

The first lecture I ever gave in a college classroom was about the Electoral College, and every time that topic comes up in various courses I feel a bit sentimental. If I may say so, I'm a pretty good repository of information about this arcane and ridiculous system. It's far more intricate than most people realize, although there is a very good reason most people don't realize it: none of the technicalities ever matter. In practice we go to bed on Election Night (or wake up the next morning) knowing the next president despite the fact that the actual Electors are unknown and the Electoral Votes won't be cast for more than a month. Everything after Election Day happens behind the curtain.

There are a lot of strange things that could happen under the rules of the Electoral College; they could, but they never do. An Elector could go "faithless." A state legislature could change its rules for selecting Electors. A tycoon could, in my view, offer an Elector a billion dollar check to change his vote with no legal ramifications for either party (Electors are neither elected officials nor appointed civil servants). For all its what-ifs, however, in practice the process is as dull as dishwater. Candidates and state party organizations choose electors based on unquestioned loyalty to the party and demonstrated willingness to be a good soldier.

There is one big glaring loophole, though. A fatal design flaw. And for years I've resisted writing about it because I feel like if we say its name aloud it will make it more likely to happen. But I'm sure that plenty of Republican strategists, lawyers, and conspiracy theorists have already thought of this in what could be either their finest or their darkest hour.

Here's a quick rundown on how the system unfolds. American voters don't vote for presidential candidates; they vote for a slate of Electors committed to support a candidate. A handful of states print the name of these Electors on the ballot but most do not. We vote on the first Tuesday after the first Monday in November (don't ask). Immediately thereafter, each state submits a formal list to Congress of the Electors chosen – whichever set represents the candidate who won the state's popular vote. Five or six weeks later, on the Monday after the second Wednesday in December (really, don't ask) the Electors meet in their state capitol to cast their votes formally. These are recorded by the Archivist and reported to Congress. OK. All clear so far.

The final step occurs in the first week of January, when the new Congress is sworn in and opens its session. On its first day, Congress must certify the Electoral Votes submitted by the states. This, like most parts of the process, is a rubber stamp in the modern era. Any objections made to the Electoral Vote must be in writing and signed by one Senator and one Representative. This is where everything could go to shit. As long as the Republicans have a majority in both chambers, there's no real reason they couldn't just refuse to certify the Electoral Vote. If you think that's too far-fetched I'd suggest you have not been paying close enough attention. How would they justify it? Who knows what Bircher-derived nonsense they would concoct. Texans are currently convinced that the Army is about to come and take their guns; I'm not sure there's a practical limit to their ability to delude themselves when it is to their benefit.

Objections occur rarely and are dealt with quickly. In theory, though, there is no reason either of those statements must hold in the future. A valid (signed) objection results in an immediate suspension of Congress while each chamber convenes separately to resolve the objection. I can find no evidence – certainly none in the 12th Amendment, and none in subsequent acts of Congress – that this suspension could not continue indefinitely. There's no procedure, no contingency plan, for a deadlock that cannot be resolved. It is implied that the members of Congress will come to some sort of reasonable compromise quickly.

Yeah. They wouldn't even need to dig in their heels on all 50 states in a close election, just the one or two that put the Democratic candidate over the top. Close your eyes and tell me that you can't picture it happening; that you can't see Lindsey Graham gravely telling the cameras that California's votes must be rejected because the UN and FEMA and illegal immigrants and teen welfare moms and al Qaeda and whatever other nonsense they can dream up. And tell me that you can't see half of this country buying it hook, line, and sinker.

I am a person of no particular intellectual gifts; if I could figure this out then god knows the lawyers and Dark Artists of the Beltway can figure it out. The only thing stopping anyone from trying this is common sense, restraint, and shame. Take a look at today's Congressional Republicans and let me know how much of that you see. It may not happen soon but at some point, I can guarantee you that someone will try this. If I'm not here to say I told you so, this post will have to do it for me.

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58 Responses to “MATTER OF TIME”

  1. Greg Says:

    Sounds like another awesome reason to favour the NPV.

  2. blahedo Says:

    And we can think back to the 2000 election—not even that long ago—for an example of a scenario that might provide a surface justification that wouldn't even seem that loony (hence bringing the wide middle band into the fold of supporters).

  3. J. Dryden Says:

    I don't even think it would be half of the country buying it. I think it would be about 20% of the country buying it–loudly, with guns and pickup trucks driven to violent demonstrations–and 20% of the country NOT buying it–loudly, but with far fewer guns, and that to their eventual defeat. The remaining 60% will have opinions one way or another, but they'll mostly wait and see how this winds up before they hazard an opinion beyond the confines of Facebook.

    And then the Reichstag will catch fire.

    Look, we're not going to have a Hitler. We're just not. But will we have someone come to power IN THE SAME WAY–that is, by exploiting the weakness of the electoral system and its "enlightened" guardians? Well, sure, why not? Because what's stopping him, apart from a lethargic obeisance to political tradition?

  4. US n the UK Says:

    You know what, i would welcome this.

    Let's get this over with shall we.

  5. HoosierPoli Says:

    I dunno, this seems like the sort of procedural move you make when you already have the army surrounding the President's residence and a junta ready to step in. There is no such thing as a paper revolution, just a post-hoc justification to stick in the history books.

  6. Will Says:

    Cool. Now do the one where Kurt Gödel identified an inconsistency in the Constitution that would allow a U.S. dictatorship.

    Or maybe this is that.

  7. Talisker Says:

    At least you *have* a Constitution.

    In 3 days, the UK faces the closest election in living memory. Almost certainly no single party will command a majority in the House of Commons. What are the rules for who gets to be Prime Minister?

    For the most part, there are no rules. It's settled by custom, unwritten convention, and potentially, the personal whim of our 89 year old monarch. Won't that be fun.

  8. Xynzee Says:

    @J.Dryden: is it too late to re-think our views on gun ownership?

    @Talisker: not a fan of Cameron and the last "Labor" leader was Britain's answer to Clinton—ie "the most Republican president in history". Given that choice, that 86yo Monarch looks mighty promising, and remember Chuckles has a positive view on climate change.

  9. Basilisc Says:

    When it happens, and I agree it will happen, it won't be backed by Bircher/FEMA arguments. At least not on the Sunday-morning shows. There we'll hear about things like "improper" disqualification of military absentee ballots, "abuse" of same-day voter registration in "certain neighborhoods", maybe "intimidation" (cue stock footage of the"New Black Panther Party"). It will all seem very arcane and subject to debate. And the dynamics will be very much as J Dryden describes. Republicans will win because they're better organized, more committed, less constrained by faith in "the process". 2000 was just a dress rehearsal.

  10. Alex SL Says:

    One thing I have never understood is why USAmericans have this weird blind spot about their constitutional order.

    There are the right-wingers, who will claim that the founding fathers wanted everybody to own a semi-automatic assault rifle, nobody but the wealthy to have health care, and the country to be Christian, and they point to the constitution for support. And then there are the left-wingers, who will claim that the founding fathers wanted to restrict weapons to the army, everybody to have equal access to services, and the country to be secular, and they point to the constitution for support.

    What you will hardly ever find is somebody who admits that some mid-18th century document may just potentially not be the measure of all things for a society that has moved beyond horse-carriages, slavery and front-loaded muskets. Somebody who says, yeah, maybe that is what the constitution says; so what? It's a bad idea, and maybe we should have written a new constitution a hundred years ago.

    Because nobody, left or right, really seems to doubt that what was a good idea in the 18th century must still be holy writ today.

    This applies with full force to the electoral college, which was clearly designed for a society that could not yet e-mail the election results from Miami to Washington. Every other country on this planet would have reformed this system about three times since 1763 to adapt it to continually changing circumstances. Only the USA would consider that to be totally inconceivable.

    In a way that is charming, so no offence meant. Each to their own etc. I just don't get it, personally.

  11. Davis X. Machina Says:

    Every other country on this planet would have reformed this system about three times since 1763 to adapt it to continually changing circumstances.

    It helps to be invaded, preferably by Germans, at regular intervals.

  12. Dave Dell Says:

    A distant memory of mine is reading about Dixiecrat electoral votes by rogue electors in the 40's or early 50's? Guess I'd better hit up the wiki pages.

  13. Elle Says:

    For the most part, there are no rules. It's settled by custom, unwritten convention, and potentially, the personal whim of our 89 year old monarch.

    Or the Cabinet Manual and the Fixed-term Parliaments Act 2011. There's a fairly readable summary of what will happen here.

  14. HoosierPoli Says:

    'What you will hardly ever find is somebody who admits that some mid-18th century document may just potentially not be the measure of all things for a society that has moved beyond horse-carriages, slavery and front-loaded muskets. Somebody who says, yeah, maybe that is what the constitution says; so what? It's a bad idea, and maybe we should have written a new constitution a hundred years ago.'

    Patriotism means never having to admit you were wrong, just that you were misinterpreted.

    Still, every country has some fundamental basic law, and there are rules for amending the Constitution democratically, and absent that, it REALLY MATTERS what the law means and how it's interpreted. And it's WAAAAY easier to have a president appoint right-thinking judges than it is to assemble a 2/3rds majority to change the text itself. So the political process follows the path of least resistance: hollering about interpretation rather than actually making the text say what we want it to say.

  15. Huntly Says:

    If this were to happen, does that mean Obama would be president until the "objection" is resolved? Could this scenario not then apply to Democrats?

  16. Major Kong Says:

    That's almost as crazy as the Supreme Court selecting the President.

    Oh wait…..

  17. Nick Says:

    See, you all talk shit when I advocate for the Second Amendment, and now Xynzee and maybe J. Dryden are on board. Unless you guys want the kind of people who voted for Michelle Bachmann in the primaries to have more guns than you.

  18. Alex SL Says:

    It helps to be invaded, preferably by Germans, at regular intervals.

    No doubt about that. Or you are the Germans and have your system of government collapse every time your neighbours have beat you back…

  19. Skipper Says:

    @HoosierPoli — well we came pretty close to that in 1934 when the corporatists had an army and a junta in place to replace FDR. Prescott Bush was supposed to become the Fascist dictator of the US — the corporatists loved Fascism. The whole thing unraveled when Gen. Smedley Butler, who they had recruited to lead the army, turned them in. There is only scant evidence of the "Business Plot" remaining. FDR needed the corporatists to get the New Deal through and ended up not hanging the ringleaders as he should have. There were congressional hearings, but the archives have since been scrubbed cleaner than a surgeon's hand. The Bush Family has gone on to bigger and better treachery.

  20. c u n d gulag Says:

    "The only thing stopping anyone from trying this is common sense, restraint, and shame."

    Are those still around?

    I thought they all died during "The Gingrich De-evolution."

    And if they can pull their 'Brook's Brother's Revolution" to get their beloved dimwit, George W. Bush, in charge as 'Preznit., then there are no boundaries that they will not only gladly, but boldly, leap over!!!

    It's how Authoritarians roll…
    Just ask the Italians and the Germans……………………………

  21. April Says:

    Admitting up front that this is not my area of expertise IN ANY WAY, what occurs to me is that there would be such an outcry against the electoral college that it might not be that difficult to pass an amendment getting rid of it. If that happened, Republicans would never win the presidency again because the popular vote is, and will ever more increasingly be for the Democrat. And maybe that's why the Republicans haven't tried it yet.

    If I'm wrong, I'm happy to be educated as to why I'm wrong.

  22. Xynzee Says:

    @AlexSL: one of the precepts of the Founding Fathers was that men—as in those w/ the dangly bits, and the rich landed ones at that—via the Enlightenment had moved beyond their base brute nature towards a more evolved and rational/reasonable place. Who would rise above instinct, partisanship and tribalism towards a place where good debate would rule the day. Though my understanding the Electoral College was a bit like the ace up the sleeve for these landed gentle men just incase the peasants didn't quite understand who was in charge.

    Unfortunately, for all their idealism, people are just as brutal, tribal, "unreasonable", and superficial as always.

  23. Talisker Says:

    @Elle: That's why I said "for the most part." There are some rules (not all of which have the force of law) but there is an awful lot they don't cover.

    @Xynzee: You've just made Gordon Brown very sad. If you don't know who he is, that only underlines the point.

  24. Elle Says:

    but there is an awful lot they don't cover.

    Like what?

  25. jesse b Says:

    @Xynzee, Clinton was the "best Republican President ever" not the "most"…

    Great, Ed. Now you've given Gohmert and Cotton an idea…

  26. Jim Barnett Says:

    Take the partisan out of it and I agree. Either side is guilty of lacking sense, restraint, and shame. A few standard deviations here and there, but suck is suck.

  27. Skepticalist Says:

    You are a terrifying bunch.

    I believe it was Jefferson who thought the Constitution might have to be reworked every 40 or so years. What an idea in the 1820s of bouncing the Electoral Collage.

    It would have been be tricky though. You never know. It might have lead to our losing the Writ Of Habeas Corpus or something. Oh, wait…….

  28. Khaled Says:

    Instead of a "Red Scare", the fascist elements in the US have to protect us from MILITANT ISLAM and the night terrors of ISIS members sneaking across the US border to commit violent acts against churches, IHOPs and Liberty Loving Americans.

    One election was already stolen in 2000, another one is not out of the question. Just wait, Jeb Bush's election will be ordained via voting "irregularities" in Ohio, Virginia, and Florida, with Iowa going "red" and being elected president, although Hilary will win the popular vote. As the corporate elites work to solidify their power, another pointless Middle Eastern War will force "emergency measures" to be declared before the 2020 election in order to "identify foreign influence" on the Democratic Party, which will result in the "temporary" suspension of presidential elections until the "dangerous Muslim terrorist saboteurs" are eliminated in the inner cities and in the ranks of the Democratic Party. After the ensuing blood bath, a victorious Jeb Bush proclaims victory in the 2022 "special election". An Amendment soon follows repealing the 22nd Amendment, allowing Jeb to run again and again until he steps aside for Jenna Bush.

    Yeah, that all sounds totally crazy. Oh wait, no it doesn't.

  29. oldgulph Says:

    A constitutional amendment to abolish the Electoral College could be stopped by states with as little as 3% of the U.S. population.

    Instead, the presidential election system can be changed again by state laws.

    Unable to agree on any particular method for selecting presidential electors, the Founding Fathers left the choice of method exclusively to the states in Article II, Section 1:
    “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”
    The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as "plenary" and "exclusive."

    The constitutional wording does not encourage, discourage, require, or prohibit the use of any particular method for awarding a state's electoral votes.

    As a result of changes in state laws enacted since 1789, the people have the right to vote for presidential electors in 100% of the states, there are no property requirements for voting in any state, and the state-by-state winner-take-all method is used by 48 of the 50 states. States can, and have, changed their method of awarding electoral votes over the years.

    The National Popular Vote bill would guarantee the majority of Electoral College votes, and thus the presidency, to the candidate who receives the most popular votes in the country, by replacing state winner-take-all laws for awarding electoral votes in the enacting states.

    The bill would take effect when enacted by states with a majority of Electoral College votes—that is, enough to elect a President (270 of 538). The candidate receiving the most popular votes from all 50 states (and DC) would get all the 270+ electoral votes of the enacting states.

    The bill has passed 33 state legislative chambers in 22 rural, small, medium, large, red, blue, and purple states with 250 electoral votes. The bill has been enacted by 11 jurisdictions with 165 electoral votes – 61% of the 270 necessary to go into effect.

    NationalPopularVote.com

  30. Mo Says:

    Nick –

    Fuck guns, I'm learning how to pilot a drone.

  31. Barry Says:

    Basilisc Says:

    "When it happens, and I agree it will happen, it won't be backed by Bircher/FEMA arguments. At least not on the Sunday-morning shows. "

    Agreed. It'll be run top-down, because the elites want it. The Tea Partiers will be the tools.

  32. Evan Sultanik Says:

    @Will: There are well-known constitutional loopholes that are consistent with what Gödel's could have been: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2010183

  33. mds Says:

    Could the commenters taking this opportunity to boost National Popular Vote explain how your system fixes the explicit constitutional requirement for Congressional certification that Ed outlines in his post? (Spoiler: It doesn't.)

  34. geoff Says:

    Ed, aren't we also looking at the prospect of some states changing their granting of electoral votes from "winner take all" (i.e. the winner of the popular vote receives all of that state's electoral votes) to "proportional voting" where states could choose Electors for multiple candidates based upon the percentage of votes they received? Thus enabling a kind of national Presidential gerrymandering like we currently have in the Congress?

  35. oldgulph Says:

    Any state that enacts a proportional approach on its own would reduce its own influence. This was the most telling argument that caused Colorado voters to agree with Republican Governor Owens and to reject this proposal in November 2004 by a two-to-one margin.

    It would not accurately reflect the nationwide popular vote;

    It would not improve upon the current situation in which four out of five states and four out of five voters in the United States are ignored by presidential campaigns, but instead, would create a very small set of states in which only one electoral vote is in play (while making most states politically irrelevant),

    It would not make every vote equal

    It would not guarantee the Presidency to the candidate with the most popular votes in the country.

  36. oldgulph Says:

    Maine (since 1969) and Nebraska (since 1992) have awarded one electoral vote to the winner of each congressional district, and two electoral votes statewide.

    Maine and Nebraska voters support a national popular vote.

    Dividing more states’ electoral votes by congressional district winners would magnify the worst features of the Electoral College system.

    If the district approach were used nationally, it would be less fair and less accurately reflect the will of the people than the current system. In 2004, Bush won 50.7% of the popular vote, but 59% of the districts. Although Bush lost the national popular vote in 2000, he won 55% of the country's congressional districts. In 2012, the Democratic candidate would have needed to win the national popular vote by more than 7 percentage points in order to win the barest majority of congressional districts. In 2014, Democrats would have needed to win the national popular vote by a margin of about nine percentage points in order to win a majority of districts.

    A GOP push to return Nebraska to a winner-take-all system of awarding its electoral college votes for president only barely failed in March 2015.

  37. Robert Says:

    I recall that in Constitution 1.0, members of the House of Representatives were the only part of the Federal government elected by the people. Popular democracy was not what the Demigods had in mind at all.

  38. oldgulph Says:

    The Founders did not intend that women, black people, and native Americans vote.
    Most of the Founders intended that only white men with money could vote.

    Prior to arriving at the eventual wording of section 1 of Article II, the Constitutional Convention specifically voted against a number of different methods for selecting the President, including
    ● having state legislatures choose the President,
    ● having governors choose the President, and
    ● a national popular vote.
    After these (and other) methods were debated and rejected, the Constitutional Convention decided to leave the entire matter to the states.

    The Constitution does not prohibit any of the methods that were debated and rejected. Indeed, a majority of the states appointed their presidential electors using two of the rejected methods in the nation's first presidential election in 1789 (i.e., appointment by the legislature and by the governor and his cabinet). Presidential electors were appointed by state legislatures for almost a century.

    Neither of the two most important features of the current system of electing the President (namely, universal suffrage, and the 48 state-by-state winner-take-all method) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation's first presidential election.

    The current winner-take-all method of awarding electoral votes is not in the U.S. Constitution. It was not debated at the Constitutional Convention. It is not mentioned in the Federalist Papers. It was not the Founders’ choice. It was used by only three states in 1789, and all three of them repealed it by 1800. It is not entitled to any special deference based on history or the historical meaning of the words in the U.S. Constitution. The actions taken by the Founding Fathers make it clear that they never gave their imprimatur to the winner-take-all method. The winner-take-all method of awarding electoral votes became dominant only in the 1830s, when most of the Founders had been dead for decades, after the states adopted it, one-by-one, in order to maximize the power of the party in power in each state.

    The constitutional wording does not encourage, discourage, require, or prohibit the use of any particular method for awarding a state's electoral votes.

    As a result of changes in state laws enacted since 1789, the people have the right to vote for presidential electors in 100% of the states, there are no property requirements for voting in any state, and the state-by-state winner-take-all method is used by 48 of the 50 states. States can, and have, changed their method of awarding electoral votes over the years.

  39. April Says:

    @mds Well, I'm assuming that if there were a constitutional amendment to abolish the electoral college, it would include abolishing the congressional certification as well.

    Have the vote, count the numbers, and the winner IS……..

  40. Skepticalist Says:

    This bizarre system owes a lot to the fact that the 13 Colonies weren't all that happy with each other. Some of them had more in common with Britain.

    They were a cantankerous bunch. Things haven't really improved other than it's easier to keep track of every little damn thing.

  41. Xynzee Says:

    @Talisker: my bad. Forgot about him, but then he is a Scot ;) —I'll be hiding in my bunker now.

  42. oldgulph Says:

    A constitutional amendment to abolish the Electoral College could be stopped by states with as little as 3% of the U.S. population.

  43. mds Says:

    @mds Well, I'm assuming that if there were a constitutional amendment to abolish the electoral college, it would include abolishing the congressional certification as well.

    As oldgulph has already noted, NPV doesn't involve a constitutional amendment, since new constitutional amendments are probably impossible for the forseeable future (Three-fourths of the states has become a pretty high bar in an era when a whackaloon shitbag like Phyllis Schlafly can kill an amendment practically singlehandedly).

    The fact that the Constitution remains unaltered by the NPV "pact" is what led to my observation that all the walls of text extolling its virtues in this comment thread are entirely failing to address the whole point of Ed's post: As long as Congress retains the power to certify the EV result, it will be possible that a Republican Congress might one day simply refuse to accept a Democratic electoral college victory, no matter how the electors are awarded.

    (I mean, the very first comment in the thread is "Sounds like another awesome reason to favor the NPV." It's like that Far Side about dogs just hearing their own name, only with "Electoral College" in place of "Ginger.")

  44. A.B.A.B.D. Says:

    I don't think this has been mentioned in the comments so far (apologies if it has), but many members of the Congressional Black Caucus did object in the certification process of the 2000 election, but they could not get one Democratic Senator to join them. The quote from Democratic Senator Christopher Dodd at the time was "It was a very good point they made. It's over with."

    For some reason, I don't think the Republicans will return the favor…

  45. PhoenicianRomans Says:

    Alex : What you will hardly ever find is somebody who admits that some mid-18th century document may just potentially not be the measure of all things for a society that has moved beyond horse-carriages, slavery and front-loaded muskets. Somebody who says, yeah, maybe that is what the constitution says; so what? It's a bad idea, and maybe we should have written a new constitution a hundred years ago.

    No, but the UK and the Commonwealth have The Crown. That's not just a flippant comment – it's a very real thing. It's a quasi-mystical symbol for Government Authority separate both from the government of the day and from whatever big-eared idiot is sitting on the throne.

    As I understand it, de jure, all authority in my country (NZ) still flows from delegations by The Crown and the Ministers serve at Its pleasure – which allows us to comfortably ignore the reality that if the Governor-General ever says "no", we'll be a formal Republic by teatime. Indeed, we'd never have a Bush-Gore campaign count kerfuffle here, because the GG (representing The Crown) would sit down and try to come up with some sort of do-over that was transparently fair rather than looking to legalistic procedure.

    The US doesn't have The Crown. Instead, it has to invest its Constitution with the same sort of quasi-mystical symbology, which makes it difficult to revisit it as an actual document.

  46. Talisker Says:

    @Elle: The analysis you linked to is good and I have a lot of time for Tomkins. But he makes clear the Cabinet Office Manual does not have the force of law, and he talks a lot about what "should" happen when the party leaders "behave properly".

    If the leaders decide to behave improperly, we are in uncharted territory.

    For example, suppose the Conservatives get a few more seats than Labour, but not enough to win a vote of confidence (even with support from Lib Dems, DUP, UKIP et al.). Labour potentially could form a government, given the support (or at least abstention) of the SNP. Egged on by the Tory press and his own party, David Cameron refuses to resign as Prime Minister, citing the evil scary separatist menace of the SNP.

    What happens then? I have no idea.

    @PhoenicianRomans: That's the problem with relying on "the Crown". There may not be a "transparently fair" solution, in the sense of a compromise that satisfies everybody. In the scenario I've described above, the Queen would have the impossible task of reconciling hard-line, right-wing English nationalism (in the shape of the Conservative party, its allies in the press, and UKIP) with left-wing Scottish nationalism. What would she do? Would she be anything like an impartial arbiter, given her rumoured disdain for Scottish nationalism?

    That's how it is in the UK. I'm not familiar with NZ, but I know Canada has a much better developed and coherent body of written constitutional law (as opposed to unwritten convention), which would help it handle a crisis like this.

  47. Phoenician in a time of Romans Says:

    No, I don't know if "The Crown" could help in the situation you mention – but it certainly could have helped in the Bush-Gore situation.

    But, technically, "The Crown" sidesteps your scenario with Congress refusing to certify results entirely. Commonwealth governments are formally formed at the Queen's invitation, not at the pleasure of the previous Government.

  48. Khaled Says:

    "ISIS claims responsibility for attack in Texas"

    Yes, what I wrote is so far fetched.

    Just wait, the snakes in the grass are being planted. If the next presidential election is close, i.e., Florida, Iowa, etc, going red and then Ohio and Virginia having "irregularities", the above situation that Ed described will happen.

    Never forget that under Reagan the US illegally sold arms to Iran. And sold arms to Iraq.

    These same people are still filling the ears of the people who are in charge of shit.
    I don't mind the cold, and I like hockey. I hear Halifax is beautiful this time of year.

  49. John M. Burt Says:

    If they were going to do this, wouldn't they have done it in December of 2008?

  50. Davis X. Machina Says:

    …it will be possible that a Republican Congress might one day simply refuse to accept a Democratic electoral college victory, no matter how the electors are awarded.

    Clearly He could not want that as an outcome.
    God's will be done.

  51. mds Says:

    If they were going to do this, wouldn't they have done it in December of 2008?

    Exactly. If they were really determined to block a Democratic president from taking power in this fashion, they would have done it when Democrats also controlled both houses of Congress.

    (As for not doing it in December of 1996? In aggregate, they weren't crazy and shameless enough yet. But they keep working on it.)

  52. Chicagojon Says:

    Completely and utterly late to this thread but the last 2 comments get me rumbling.

    I don't buy the 'why didn't they do this in 2008'. "They" had already stolen the 2 previous elections and in 2008 post fiscal-crisis B.O. looked like the surest 1-term president in my lifetime. There was no way he was going to be able to salvage the shitstorm that he was stepping into and despite what anyone has ever said all that matters for the POTUS election is money/jobs. Since the economy had no chance of bouncing back in 4 years there was no chance or reelection. What better time to elect the first & last black president of the 21st century?

    The fact that he was reelected is reason alone why he's in my top xx list (not that it means much – my presidential shitlist is 30+ deep. It doesn't take much to be the best of the worst). It's also why he will always be listed by 'the other side' as one of the worst presidents ever and never be given any credit for anything he ever did. Oh, and cuz he's black and "they" are racist.

  53. Matt Says:

    Two thoughts on this:

    * one thing that might stop the Rs from doing that is the lack of anyone else to blame. Think about all the gridlock & sabotage since 2008: it's always been "well, we want to do the right thing but (the Senate | the POTUS) won't negotiate with us". Sure, it's a transparent fig leaf made of pure bullshit, but it's *something*.

    * the other thing is worry about what ELSE might shake loose in the ensuing constitutional kerfuffle. If we started renegotiating the basic structure of government, is there ANY chance that the Senate would emerge as-is? There's a lot of senators from tiny Red states that would almost certainly lose their jobs, and their leverage point for additional sabotage…

  54. Elle Says:

    @Talisker:

    Yes, Adam is both good company and a thinker of interesting thoughts.

    I don't see that there's the remotest of possibility of a Prime Minister being invited to form a government based on the "personal whim" of the monarch. The Cabinet Office manual and FTPA (particularly s.2) collectively provide process guidance and a backstop for any Prime Minister who had so comprehensively lost his or her head that they were hanging on to the Number 10 curtains and refused to resign as convention suggests if they couldn't get a Queen's Speech through.

  55. Robert Says:

    Another thing not mentioned in the Bestest Constitution Evar – political parties. Try and imagine the last two hundred years of American history without political parties.

    No, I can't either.

  56. PhoenicianRomans Says:

    Elle: I don't see that there's the remotest of possibility of a Prime Minister being invited to form a government based on the "personal whim" of the monarch. The Cabinet Office manual and FTPA (particularly s.2) collectively provide process guidance and a backstop for any Prime Minister who had so comprehensively lost his or her head that they were hanging on to the Number 10 curtains and refused to resign as convention suggests if they couldn't get a Queen's Speech through.

    Yeah, but imagine a situation (as in Bush vs Gore) where there's no real way to determine an actual winner without resorting to politically motivated interpretations of ambiguity in the rules. In this case, having a ceremonial Head of State who can propose something outside of legalistic procedure makes a lot of sense.

  57. Elle Says:

    @Phoenician

    Yeah, but imagine a situation (as in Bush vs Gore) where there's no real way to determine an actual winner without resorting to politically motivated interpretations of ambiguity in the rules.

    I'm not sure it's very easy to compare a Presidential election to the UK's constitutional circumstances. I'm struggling slightly to see where this total lack of clarity would come from. Either Cameron can get a Queen's Speech through the House or he can't. In the case that he can't, either Miliband can get a Queen's Speech through the House or he can't.

    This is a politically complicated situation, in that both largest parties will be entering into furious negotiations with other parties that might or might not enter into coalition with them or otherwise wave through their Queen's Speech. It is also obviously more procedurally complicated than usual, because of the electoral maths. Despite the larger number of moving parts when compared with 2010, it just doesn't seem desperately unclear. If nothing else, we now have both the Cabinet Office manual and the FTPA.

    The Palace's customary silence on all matters has let some hares run, but they've now clarified that the Queen will be delivering any Queen's Speech put before her, even if it may not pass. Constitutional convention and the Palace are both crystal clear on the fact that she won't be picking the Prime Minister, and it's very misleading to suggest that she might.

  58. Pat Says:

    Small quibble, because it would depend on the Supreme Court adhering to precedent over partisan political preference, but the case of Powell v. McCormick would actually prevent such a move. In that case, the House of Representatives declined to certify the qualifications of Adam Clayton Powell of Harlem, who had some ethical… let's call them "incidents." The Court held that the House could not do so, reasoning that its discretion to certify qualifications was purely ministerial and limited to the age and residency requirements in the text of Article I.