Wish Biden and Trump Could Both Lose? They Can! It's Not Too Late to Save the Republic.

 

 Consider this scenario to settle the election in accordance with the law while also resolving, to some small extent, the severe partisanship bordering on hatred that we are seeing in the country today.

When Congress meets on 6 January to tally Electoral College votes, they reject enough state's vote tallies to bring every candidate's vote tally below 270. Then by law (12th Amendment) the House chooses the President by a vote of delegations and the Senate chooses the Vice President. 

 

To see how this resolves the partisan issue, you need to pay attention to the mechanics of the process. And it requires at least one "faithless elector" to cast a presidential ballot for someone who is not a divisive figure. Someone who neither party might be happy with, but both parties could live with. If I had to choose that person, I'd choose former Secretary of Defense Robert Gates or former Democratic presidential candidate Jim Webb. To satisfy my Libertarian friends, we could even make that choice Libertarian presidential candidate Jo Jorgensen. Here's how it could happen:

 

Not all states allow by law for an elector in that state to cast a vote for someone who was not the winner of the popular vote in that state. But some do. This website details the law in various states.

Let's go to the top of the list, Alabama, because the law there 1) applies no penalty for a faithless vote, 2) allows the vote to stand, that is it doesn't automatically replace the faithless elector with someone who would vote in accordance with the popular vote, and 3) Alabama voted for Trump, so if Trump is on track to lose in a conventional Electoral College vote, an Alabama elector is more likely to be willing to stray from the norm to prevent a Biden presidency. In my opinion, this faithless elector, though certain to garner scorn from some uber partisans, would probably be praised as the savior of the Republic by the rest of us. 

 

OK. So now we go to the House chamber on 6 January 2021 and a joint session of Congress. The session is chaired by the president of the Senate, the current Vice President Mike Pence. As each state's electoral ballots are counted there is an opportunity for objection to the acceptance of said ballots. By law, that requires at least one House member and one Senate member to file a written objection. That should be a pretty low bar. I'd bet Senators Romney, Collins or Murkowski could be persuaded. When this happens, the Senate retires to it's own chamber and both Houses have two hours of debate followed by a vote. Significantly, the vote in the House is conducted by state delegation, not by individual House members. Currently the Republicans have majorities in 26 of the 50 state delegations and that is not anticipated to change after the new Congress is sworn in on 3 January 2021.  So presumably, the House will vote to reject those electoral votes. 

 

Now we examine the Senate, and even if the runoff elections for Senator in Georgia BOTH go to the Democrats, that only gives the Democrats 50 Senators. Now with a Biden presidency, the Senate would be in Democratic hands because the Vice President, Kamala Harris, tips the majority to the Democrats as the tie breaking vote. But this event all takes place on 6 January of next year. Mike Pence is still that tie breaking vote, and presumably the electoral votes get refused.

 

This same scenario needs to play out in several states in order to accomplish the goal of reducing any one candidate's total of electoral votes to below 270. I'm not sure how the law is written, but the number might need to be reduced to below half the ballots accepted, not simply below the number 270 which is half the ballots cast. I'll let the legal scholars in the Congress figure that out. My suggestion would be to disqualify votes from the states where there are credible allegations of fraud. All the more justification to refuse to accept those votes. Political cover of a sort.

So now we have an Electoral College in which no candidate has the required number of ballots for election to the presidency. Under those circumstances, the Constitution's 12th Amendment is quite clear on how to proceed from here.

The House of Representatives votes to choose from among the top three vote getters, in this case Trump, Biden, and Jorgensen (or substitute another candidate of your choice). Once again, the vote in the House is conducted by delegation. Presumably the candidate introduced by the faithless elector would win the vote if this enterprise goes according to plan. There would be nothing to stop the delegations from voting for Trump at this point, but that would defeat the goal of reducing partisan rancor. Indeed, it would almost certainly be seen as outright theft of the presidency, although it would still be perfectly legal. And since all the actors needed for this scenario to play out are Republicans, it would certainly be possible for this to be used to steal a win for Trump when most would acknowledge it was not deserved. Still, I think few of the Republican participants would be willing to put their careers on the line, not to mention the future of the country, just to save Trump. Most of them will probably be glad to see the back of him, and though some Republicans might blame them for denying Trump four more years, I'll bet there will be plenty of reluctant Biden voters who will forgive them denying those four years to Biden in the name of saving the country.

 

So next we move on to the selection of the Vice President. That happens in the Senate where each Senator gets one vote, but unlike the House where the choice is between the top three vote getters, the Senate's choice for Vice President is made only from among the top two. Harris or Pence. For my money, Harris is simply an unacceptable choice. Especially among Republicans, and all the key players in this scenario are Republicans. To name Mike Pence the Vice President would be particularly appealing to Republicans if the presidency was to go to one of the prominent Democrats I mentioned, and that would be especially true if the Senate were to end up 50-50, and a Republican Senate could only be narrowly assured with a Republican Vice President at the helm as a tie breaker. Another reason for choosing Pence is his cooperation as President of the Senate during the counting of electoral votes might be necessary, and if the Georgia Senate seats both go to Democrats, his tie breaking vote will determine the Vice Presidency. There's little chance he's choosing Harris over himself. This could work. Who knows. We might even approach bi partisan governance going forward as we seek to heal the partisan wounds of the past.

 

You might be surprised to learn that I don't see this scenario as a particular long shot. If Trump can prove election fraud of a significant enough magnitude to rightfully claim the presidency, then I would support him. I believe that fraud likely occurred. But if that can't be proven to the satisfaction of most reasonable people, then the divisions created in this country as a consequence of half the population believing the election was stolen no matter who wins is an unacceptable alternative. I hope lawmakers in Congress see the choices their same way I do.