This Election, Prepare for the Unexpected

Even If Trump Wins the Vote on Nov. 5th, He Might Lose the Count on Jan. 6th

For the last three weeks, I’ve been writing and publishing installments in my multi-part series on taxation. But let us put aside taxation for a moment to discuss representation instead.

On Tuesday, November 5, 2024, the American people will cast their vote for the office of president. The role could not be more important; the choice could not be stark; the outcome could not be more uncertain.

The election polls have repeatedly proven themselves unreliable, and only a fool would point to any of them as proof of what will happen. Even if the polls were reliable, each of them is saying something different. The very fairness of the franchise itself is in question, with fears that the integrity of the election could be compromised by ballots from ineligible voters, by destruction of the ballots of eligible voters, by the introduction of fraudulent ballots, by the deliberate miscounting of the ballots cast, by the ballots being bought and paid for by powers that work unseen. In ordinary times, Trump would win in a landslide, but these are no ordinary times. These are the days of the American Eschaton.

Still, let us imagine, let us hope, that a clear winner emerges on November 5th; and let us further hope that this clear winner’s last name begins with “T”. What then? Will the Democrats sigh, shake their heads at the bad taste of the American public, and wait for Harris 2028? Will Trump, Vance, Kennedy, and Gabbard be given leave to usher in a new era of American greatness, while a grateful nation consolidates behind them?

It seems unlikely. No, this Tuesday’s election will not be the end of our unrestful times. It will not even be the end of the beginning of those times.

To understand why we have to talk about…

How Elections are Certified and Counted

The Monday after the second Wednesday in December of presidential election years is set as the date on which the presidential electors meet and vote. In 2024, that meeting is on December 16th.

On that day, electoral college delegations will meet separately in their respective states at their state capitols to cast their ballots for President and Vice President. The electors will then count the results and sign certificates known as Certificates of the Vote.

These Certificates of the Vote will then be packaged with Certificates of Ascertainment provided by the state governors. The packages will then be signed, sealed, and sent by registered mail to the President of the U.S. Senate - that is, to Vice President Kamala Harris.

Once Vice President Harris receives the packages, it will be time for the votes to be counted. The process by which the electoral votes are counted is regulated by federal law known as the Electoral Count Act and found at 3 U.S.C. § 15. For those of you who don’t enjoy reading legalese, here’s how it will work:

• On January 6, 2025, the President of the Senate will convene a joint session of the House and Senate to count the electoral votes.

• During the session, each state’s votes will be opened in alphabetical order. If multiple returns are received from a state, only those certified by the state’s legal authority will be accepted. In cases of a disagreement, the votes certified by the state's governor will be considered final​.

• After each state’s votes are opened, objections to the votes will be submitted in writing. If there are any objections, both chambers will go debate the objections separately; the Congress will be able to reject a state’s electoral votes only if both chambers agree to do so.

• The electoral votes, less any removed by successful objections, will then counted and the presidency awarded to the winner.

Now, as it so happens, I’ve written a lot about the Electoral Count Act. If you’re a long-time reader of Contemplations on the Tree of Woe, you might have read my two 2020 articles on the topic, entitled Who Counts the Votes of the Presidential Electors? and If Chaos is a Ladder, America’s Election Laws are an Elevator. In those two articles, I pointed out a number of major problems with 3 U.S.C. § 15, among them that (a) it seemed to give plenary power to the Vice President to govern the electoral count and (b) it made it extremely easy for Congress to object to electoral votes, while offering little means to adjudicate those objections.

When I made these arguments back in 2020, they were openly ridiculed by mainstream jurists. A certain “William A. Jacobson” at Legal Insurrection penned a particularly insipid piece disparaging my education and reasoning. As it turns out, of course, I was right and he was wrong. The legal risks I highlighted were quite real. We can be certain the legal risks were real, because in 2022 Congress amended 3 U.S.C. § 15 to fix all the issues I said were problems that Mr. Jacobson insisted were not.¹ It was only Pence and Trump’s acquiescence (for lack of a better word) to the purported outcome of the election that avoided the crisis I had pointed out was possible.

The aforementioned 2022 updates to the Electoral Count Act did three things:

• They made it clear that the Vice President’s role is explicitly “ministerial,” by stating “the President of the Senate shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper certificate of ascertainment of appointment of electors, the validity of electors, or the votes of electors.”

• They made it harder for members of Congress to object to a state’s electoral vote. In the 2020 version of 3 U.S.C. § 15, objections had to be signed by just a single representative and senator. In the 2022 version, objections have to be signed by at least one-fifth of both Senators and House members.

• They limit the grounds for objections to two very specific grounds, namely either a lack of lawful certification or an irregularly given vote.

So, everything is fixed, right? Not so fast, because…

The Democrat Have a Plan to Block Trump’s Election

The Democratic strategy to block Trump from election if he wins the electoral vote relies on the following legal argument:

1. Donald Trump engaged in insurrection when he incited his followers to attack the Capitol on January 6th, 2021.

2. Section 3 of the 14th Amendment renders a former president who has engaged in insurrection ineligible to serve as president.

3. Therefore, Donald Trump is ineligible to serve as president.

4. If Donald Trump is ineligible to serve as president, a vote for Donald Trump to serve as president would, by definition, be an irregular vote.

5. 3 U.S.C. § 15(d)(2)(b)(ii)(II) permits members of Congress to object to the count of an electoral vote if the elector’s vote was not regularly given.

6. Therefore, members of Congress can object to the count of all electoral votes for Donald Trump.

Assuming that the Democrats hold a majority in the House and Senate, all they then need do is sustain each objection, et voila! All of Trump’s electoral votes will be discarded.

Is this argument foolproof? No, of course not. But it’s certainly as legitimate (or illegitimate) as the arguments that were made in 2020. You see…

The Disqualification Clause is Rather Ambiguous and Hence Exploitable

Section 3 of the 14th Amendment, known as the "Disqualification Clause," was added after the Civil War to prevent those who engaged in insurrection or rebellion against the United States, or gave aid and comfort to its enemies, from holding federal or state office. It specifically targeted individuals who had previously taken an oath to support the Constitution (such as federal officials or members of Congress) and subsequently broke that oath by supporting the Confederacy or otherwise rebelling against the United States​. In full, it reads as follows:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The Disqualification Clause is among the worst-written clauses in the Constitution. Imagine the clause simply read “A person shall be given the death sentence if they shall have engaged in insurrection.” What, exactly, would that clause tell us? It would certainly tell us that the punishment for insurrection is death. But it wouldn’t tell us anything about the definition of “insurrection,” how determines whether someone has “engaged in insurrection,” and by what process this determination is made. Is an arrest enough? What about an indictment by a grand jury enough? What about a civil judgment? What about a criminal verdict? What about just the opinion of a Congressman or Senator or governor or judge?

The language of the Disqualification Clause is more complex but the problem is the same. It automatically disqualifies those who have “engaged in insurrection” but it provides no definition of what that means nor any process whatsoever by which a candidate can be judged as having done so. The Disqualification Clause also doesn’t define “officer” of the United States, and many scholars have argued the U.S. President isn’t an officer; the reasons for that is so complex that we don’t have space to get into here.

It is a safe bet that most of the readers of this blog do not think that Trump engaged in insurrection on January 6th; whether he did or not is irrelevant to the discussion that follows. What we, Conan-themed contemplators, believe matters not. What matters is what Congress and the Courts believe. So what do they believe?

Well, in September 2023, the Disqualification Clause was litigated in Colorado by (ostensibly) Republican voters demanding that Trump be removed from the Colorado ballot under 14th Amendment grounds. The Colorado District Court, faced with the exceptionally vague clause, ruled the following:

• The definition of an insurrection is “"a public use of force or threat of force ... by a group of people ... to hinder or prevent execution of the Constitution of the United States'”’

• The question of whether Trump “engaged in insurrection” was to be determined at trial as a matter of fact under the standard of “preponderance of the evidence” (e.g. the civil law standard rather than the criminal law’s standard of “evidence beyond a reasonable doubt”);

• By the preponderance of the evidence presented at trial, Trump engaged in insurrection; and

• Despite having engaged in insurrection, Trump could not be removed from the ballot, because the President is not an officer of the United States under the Disqualification Clause.

Kind of a twist ending on that one!

Not willing to accept defeat, the plaintiffs appealed to the Colorado Supreme Court. On December 19, 2023, the Colorado Supreme Court ruled 4-3 in favor of the plaintiffs, stating that:

• It was unnecessary to define insurrection, because Trump had engaged in insurrection by any reasonable definition of them; and

• The President is an officer of the United States for purposes of the Disqualification Clause.

Accordingly, the Colorado Supreme Court reversed the District Court and disqualified Trump from the Colorado ballot.

And, accordingly, the Trump campaign appealed to the US Supreme Court. On March 4th, 2024, the US Supreme Court sided with Trump, issuing a unanimous ruling that Congress has the exclusive power to enforce Section 3.

According to Trump vs. Anderson, neither state nor federal courts can declare a candidate ineligible for office unless and until an act of Congress explicitly grants them that power. The Court made this ruling out of concern that allowing each state to apply Section 3 independently would lead to inconsistent outcomes, creating a “patchwork” where a candidate could be eligible in some states but disqualified in others. This inconsistency, the Court argued, would undermine electoral integrity and national coherence in federal elections, thus necessitating Congress’s exclusive role in enforcing such qualifications for federal office​.

Unfortunately, as is common in Roberts Court decisions, SCOTUS managed to rule on the issue without actually ruling on the issue. Yes, the decision settled whether states can or cannot disqualify candidates unilaterally; but it didn’t resolve any of the broader questions about whether Trump’s actions constituted insurrection under Section 3 or about how Congress might act to enforce this clause.

So as of today (October 30, 2024):

• The question of whether the President counts as an officer of the United States in the context of the Disqualification Clause remains unclear;

• The definition of exactly what “insurrection” means in the context of the Disqualification Clause remains unclear;

• The due process required to determine whether someone has “engaged in insurrection” remains unclear, including how this determination is to be made, by whom, and under what standard of evidence.

• The means by which Congress can enforce such a determination remain unclear. Does it need to pass a law to let states enforce it? Can it does directly on January 6th?

Nobody knows the answer to any of the questions. Anyone who says they know the answer is lying. Given how much uncertainty there is, the Democrats have ample room to take action to stop Trump with the argument I outlined above.

Should they attempt to do so, of course, things will get ugly. They will, at a minimum, spiral into a constitutional crisis of litigation and counter-litigation. If that happens, things could get very weird, because…

The Electoral Count Act Might Not Be Constitutional

Let’s assume that the Democrats apply the strategy above and reject all of the electoral votes for Trump. Therefore, only the votes for Harris are counted, and Harris wins the Presidency. Let’s further assume that the Supreme Court seems likely to agree with this. Even so, the Republicans have a counter-strategy to the Democratic strategy that goes like this:

1. The Democrat refusal to count the electoral votes arose under the Electoral Count Act.

2. The Electoral Count Act is unconstitutional.

3. Therefore, the Democrat refusal to count the electoral votes must be rejected.

The argument that 3 U.S.C. § 15. is unconstitutional has been elaborated at great length (124 pages!) by law professor Vasan Kesavan in a seminal law review paper, “Is the Electoral Count Act Unconstitutional?” 80 NC L. Rev. 2001. Kesavan concluded that the Electoral Count Act was, in fact, unconstitutional. Specifically, he wrote:

The structural argument reveals that the Electoral Count Act is unconstitutional… As a prima facie matter, the Electoral Count Act, to the extent that it is a law that has legal force, clearly violates the anti-binding principle of rule-making. This is perhaps the strongest structural argument against the constitutionality of the Electoral Count Act. In addition, the Electoral Count Act is also unconstitutional in its potential operation in counting electoral votes. The bicameral procedure of 3 U.S.C. § 15 violates the anti-Senate principle of presidential election, the Chadha principle of law-making, and the anti-President principle of presidential election. Finally, to the extent that the joint convention rejects electoral votes contained in authentic electoral certificates as not "regularly given,'" the Electoral Count Act violates the anti-Congress principle of presidential election, the pro-states and pro-state legislatures principle of presidential election, and the pro-electors principle of presidential election.

So what happens if Congress sustains an object to counting Trump’s electoral votes under 3 U.S.C. § 15; but Trump wins a lawsuit that gets 3 U.S.C. § 15 thrown out? Again: no one knows.

Kasavan, writing in 2001, concluded that if things got really crazy, then the 20th Amendment would kick in. The 20th Amendment states:

Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified

Congress did, in fact, provide by law for this case. The law is the 1947 Presidential Succession Act, and it sets the line of succession for the President as Vice President, Speaker of the House, President Pro Tempore of the Senate, and then Secretary of State.

Let’s refresh. At this point, we’ve assumed that Trump has won the electoral vote; a Democrat Congress has used Disqualification Clause to reject the electoral vote under the Electoral Count Act; the Supreme Court has rejected the Electoral Count Act as unconstitutional; a Constitutional crisis has arisen that has led to the 20th Amendment kicking in; and the 20th Amendment kicking in has triggered the Presidential Succession Act.

That would mean that the Presidency would automatically pass to Vice-President Harris… except if the election is disputed long enough to matter Vice President Harris’s term will have expired along with Trump’s term. Then the President would be whoever the Speaker of the House is in 2025. Who that will be, I have no idea.

But at last we have closure. A definitive answer as to who will lead our country if all else fails. Right? Well, actually…

The Presidential Succession Act Might Be Unconstitutional Too

During a September 2003 joint hearing Before the U.S. Senate's Committee on Rules and Administration and Committee on the Judiciary, M. Miller Baker said:

The 1947 Act is probably unconstitutional because it appears that the Speaker of the House and the President pro tempore of the Senate are not "Officers" eligible to act as President within the meaning of the Succession Clause. This is because in referring to an "Officer", the Succession Clause, taken in its context in Section 1 of Article II, probably refers to an "Officer of the United States", a term of art under the Constitution, rather than any officer, which would include legislative and state officers referred to in the Constitution (e.g., the reference to state militia officers found in Article I, Section 8). In the very next section of Article II, the President is empowered to "require the Opinion, in writing, of the principal Officer in each of the executive Departments" and to appoint, by and with the advice and consent of the Senate, "Officers of the United States". These are the "Officers" to whom the Succession Clause probably refers. This contextual reading is confirmed by Madison's notes from the Constitutional Convention, which reveal that the Convention's Committee of Style, which had no authority to make substantive changes, substituted "Officer" in the Succession Clause in place of "Officer of the United States", probably because the Committee considered the full phrase redundant.

This line of reasoning was thoroughly explored in a Stanford law review article (Akhil Amar and Vikram Amar, “Is the Presidential Succession Law Constitutional,” 48 Stanford L. Rev., 1995), which reached the same conclusion.

If the presidential line of succession is found to unconstitutional, what does that mean?

Do we just skip the Speaker of the House and President pro tempore of the Senate and proceed to the Secretary of State? Does the Supreme Court decide? Does the Supreme Court send it back to Congress? But what if Congress can’t agree?

Again, no one knows. We could easily end up in a situation where multiple people are all claiming to be the President! Such situations are usually resolved with an advanced legal technology called “men with guns”.

Hopefully That’s Cleared It All Up For You!

Our long and winding review of the situation has led us to the conclusion that the outcome of the 2024 Presidential election could be:

1. Harris, if Harris wins the electoral vote;

2. Trump, if Trump wins the electoral vote, and Democrats do not object under the Electoral Count Act and 14th Amendment;

3. Harris, if Trump wins the electoral vote, Democrats object under the Electoral Count Act and 14th Amendment, and Trump acquiesces to the objection;

4. Trump, if Trump wins the electoral vote, Democrats object, Trump appeals against their objection to the Supreme Court, and the Supreme Court rules that Trump cannot be disqualified under the 14th Amendment;

5. The Speaker of the House, if Trump wins the electoral vote, Democrats object, Trump appeals against their objection to the Supreme Court, and the Supreme Court rules that the Electoral Count Act is unconstitutional, triggering the 20th Amendment, triggering the Presidential Succession Act; and

6. Virtually anybody, if the above comes to pass and the Presidential Succession Act is deemed unconstitutional… And I haven’t even exhausted all the possibilities.

Now, obviously, the most ordinary course of events is simply #1 or #2. Historically, 75% of our Presidential elections have been quite routine, without any shenanigans or skullduggery in the electoral count.² But 75% is not 100%. The possibility remains that this one will be different. I, for one, am expecting the worst.

But then… I always do.

1. Imagine a whistleblower issues a press release stating that a corporation’s data is at risk because it lacks encryption and isn’t backed up regularly. The corporation’s PR flunky responds to say that the whistleblower is a scaremonger attempting to get attention, because the data is quite secure. Everybody believes the very credible corporation and not the wild-eyed whistleblower, who is cast out of polite society. But the corporation then quietly spends a lot of money to put in place high-end encryption and real-time data backup to address all of the problems that it just told everyone weren’t real problems.

2. The complete list of the 25% of elections which did have shenanigans and skullduggery includes cases where residential electors get their votes counted even when they…

• didn’t even send a certificate of the vote! (GA in 1800)

• represented territories that weren’t even states! (IN in 1817, MO in 1821, MI in 1837)

• weren’t certified as properly appointed by their state governor! (TX and MS in 1873)

• didn’t cast their votes on the prescribed day! (WI in 1857)

• didn’t certify that they voted by ballot! (MS in 1873)

• were officers of the federal government (CN, NH, and NC in 1837)

• were replacements for missing electors arbitrarily appointed by the remaining electors without even a majority vote! (TX in 1873)

• didn’t follow the requirement to vote for one person not resident of their own state! (GA in 1873)