Once upon a time, polls predicted Elizabeth Warren would be the 2020 Democratic nominee for President of the United States. Those same polls said Donald Trump would never be the Republican nominee for 2016’s General Election, much less actually be moving in to the White House. While these predictions have been proven wrong (don’t ask those pollsters to pick a lucky number for you), other testimonies regarding the U.S. 2020 Presidential Election are proving out, alarmingly so.
‘It is Election Night 2020. This time it is all eyes on Pennsylvania, as whoever wins the Keystone State will win an Electoral College majority. Trump is ahead in the state by 20,000 votes, and he is tweeting, “The race is over. Another four years to keep Making America Great Again.”
The Associated Press (AP) and the networks have not yet declared Trump winner. Although 20,000 is a sizable lead, they have learned in recent years that numbers can shift before final, official certification of election results. They are afraid of “calling” the election for Trump, only to find themselves needing to retract the call—as they embarrassingly did twenty years earlier, in 2000. Trump’s Democratic opponent, [Biden], is not conceding, claiming the race still too close to call. Both candidates end the night without going in front of the cameras.
In the morning, new numbers show Trump’s lead starting to slip, and by noon it is below 20,000. Impatient, Trump holds an impromptu press conference and announces:
“I’ve won reelection. The results last night showed that I won Pennsylvania by over 20,000 votes. Those results were complete, with 100 percent of precincts reporting. As far as I’m concerned, those results are now final. I’m not going to let machine politicians in Philadelphia steal my reelection victory from me—or from my voters!“
Despite Trump’s protestations, the normal process of canvassing election returns continues in Pennsylvania, and updated returns continue to show Trump’s lead slipping away. First, it drops below 15,000. Then 10,000. Then 5,000. As this happens, Trump’s tweets become increasingly incensed—and incendiary. “STOP THIS THEFT RIGHT NOW!!!” “DON’T LET THEM STEAL THIS ELECTION FROM YOU!!!”
Protestors take to the streets, in Pennsylvania and elsewhere. So far, the demonstrations, while rancorous, have remained nonviolent. Amid police protection, the canvassing process in Pennsylvania has continued, and Trump’s lead in the state diminishes even further.
Then, several days later, the lead flips. Now, [Biden] is ahead in Pennsylvania. First by only a few hundred votes. Then, by a couple of thousand votes. Although the AP and networks continue to declare the race “too close to call,” it is [Biden’s] turn to take to the cameras declaring victory.
Trump insists, by tweet and microphone, “THIS THEFT WILL NOT STAND!!!” “WE ARE TAKING BACK OUR VICTORY.”
So begins the saga over the disputed result of the 2020 presidential election.’
So reads the Introduction to, Preparing for a Disputed Presidential Election, by Edward B. Foley. The prescient piece was published in Loyola University Chicago Law Journal, Volume 51 Issue 2 – WINTER 2019. Over a year before the election of November 3, 2020. (At the time of writing, the author believed Warren would secure the Democratic nomination – I replaced her name with [Biden] in the original text quoted above)
After the 2012 midterm elections, Foley penned an essay (in his free time) on what he calls, the “blue shift” in U.S. elections. This “blue shift” is what Foley named a phenom he identified in our ballot casting procedure where in-person voting results initially show a strong lead for Republican candidates with the lead shifting to a Democrat as Absentee ballots are tabulated.
Who the heck is this Foley character? Per SSRN, Edward B. Foley is an Associate Professor at Ohio State University’s Michael E. Moritz College of Law. He received his BA from Yale and his JD from Columbia University School of Law. When not professoring or composing detailed analyses of U.S. election quirks he has identified, Mr. Foley writes a column for The Washington Post.
From his Washington Post bio page:
“Edward B. Foley, a Washington Post contributing columnist, writes on matters relating to election law and administration. Foley holds the Ebersold Chair in Constitutional Law at Ohio State University, where he heads the university’s election law program. He also serves as an NBC News election law analyst. In 2016, his book “Ballot Battles: The History of Disputed Elections in the United States” was named a finalist for the David J. Langum Sr. Prize in American Legal History; his most recent book, “Presidential Elections and Majority Rule,” explores the conception and evolution of the electoral college, while making the case for reform. Foley clerked for Justice Harry Blackmun at the U.S. Supreme Court in 1987-1988 and Chief Judge Patricia M. Wald of the U.S. Court of Appeals for the Distict of Columbia Circuit in 1986-1987. He has also served as state solicitor in the office of Ohio’s attorney general.”
He’s an expert on disputed elections, who’da thunk there was such a beast? Foley’s 55-page long 2020 Presidential election fallout predictive analysis contains thoughts like:
‘We can endeavor to contemplate all the different ways Trump might try to stop an Election Night lead from slipping away, whether through litigation or otherwise. Fundamentally, however, it makes sense to focus on the possibility that there remains a basic conflict over the outcome of a pivotal state, like Pennsylvania. On the one hand, Trump keeps insisting that only the Election Night results, which show him in the lead, are valid.
On the other hand, if the canvassing process does show that lead evaporating, thereby putting Trump’s Democratic opponent ahead (or even just potentially so), then the Democrats will insist that the results shown by the canvass are the valid ones. The key question, then, is how this basic dispute plays out—and ultimately gets resolved.’
The Twelfth Amendment, the 20th Amendment, United States Codes, particularly 3 U.S.C. § 15 – all are being devoured by legal and public service procedure minds far superior to my own. And, all are in play, along with other policy and code interpretations. Including the possibility Foley details in his predictive analysis – no President will be inaugurated on January 20, 2021 as our bicameral Congress will not be able to agree on how to handle two sets of electors.
Seven swing states, Arizona, Nevada, Pennsylvania, Wisconsin, Michigan, New Mexico and Georgia sent two slates of certified elector votes to the U.S. Congress. One slate of electors was sent by the Governor’s office certifying Joe Biden as their state’s winner. An alternate slate of electors was submitted by the state legislatures of these seven states, certifying Donald Trump as the winner of the 2020 Presidential Election. As are all things guvmint, the procedures to resolve this type of conflict are convoluted and involved but, in a nutshell, Foley believes such a split vote scenario presented for Congressional certification will create a check, counter-check situation between the Senate (Pence) and the House of Representatives (Pelosi), delaying the inauguration of anybody as President of the U.S. until all disputes are settled.
Since my mind tends to eschew Latin and other regulatory languages, I’ll strive to convey a very abbreviated synopsis of what may happen on Wednesday if the Democrats continue to follow Foley’s manifesto on how to seize power – I mean, his studied essay on 2020 Presidential election fallout possibilities. Please read Foley’s piece in full to get the details, if interested in same. He does a great job of backing up his direction – I mean, theory with the U.S. laws that support same. I’m offering a Schoolhouse Rock version, hum along to whatever song you think works best if you’d care to do so. (Welcome to the Jungle by Guns ‘N Roses is my pick.)
Both chambers of Congress must meet together to certify the vote; the House and the Senate, all in one room. As President of the Senate, Mike Pence will preside over the proceedings. Nancy Pelosi, Speaker of the House, will be seated to the left of Pence and retains control of the House chamber where the combined Congress will assemble for the certification. With me, so far?
Electoral votes submitted by states are presented to the Congress for certification in alphabetical order. In Foley’s example scenario, he expected no disputes until we reach the P‘s, Pennsylvania. As we have Arizona in the mix, we won’t have to wait as long for things to play out as they do in Mr. Foley’s observations.
Imagine, if you will . . .
It’s January 6, 2021 and both chambers of Congress have assembled in the halls of the House of Representatives to certify our next President. Alabama has been recognised and recorded, Alaska’s electors have been accepted by Congress so now, Arkansas is on deck as Arizona takes the plate. The dueling elector situation in Arizona is presented and considered. (there’s a thought, duels tend to end political disputes, historically)
Back at the Capitol building, Pelosi orders all of the Senators to clear her House chamber so the Reps can chat in private. When the Senators return, Pelosi says the House approves the Biden electors from Arizona. The Senate says they approve the Trump electors, it’s a tie so here comes the Vice President. The accepted way to handle this challenge is to fully dispose of all the elector votes for that state; both slates would be thrown out. Pence announces that Arizona’s electoral votes will not be included in the national vote certification and moves on, asking that Arkansas’ votes be presented for Congressional certification.
Pelosi objects, orders the Senators out again and refuses to reconvene a full Congress until Pence accepts the Arizona numbers that give the state to Biden. Pelosi uses the line in her job description that says, “the power to preserve order” to eliminate civil debate. The Speaker can, and no doubt would, simply refuse to continue on with the count “to preserve order.” The Congressional vote certification stops at Arizona and the sun sets on Wednesday with no President having been certified by Congress.
Should that scenario play out, and no compromise be reached in the days after, there will be no Presidential Inauguration come January 20, 2021. While Congress plays their usual time-wasting game of ignoring their constituents, their oaths and the needs of the nation, the Speaker of the House will be given Presidential powers until an actual President is decided upon and inaugurated.
From Foley’s Instruction Manual, I mean essay:
‘The Twentieth Amendment seems to contemplate the possibility that the counting of electoral votes may be incomplete and thus there might be neither a president-elect nor a vice president elect at noon on January 20, when the terms of the previous president and vice president expire, and thus there would need to be an acting president to be identified in a statute enacted by Congress:
If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the 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.
But what if there is a debate on whether or not the situation exists where “a President shall not have been chosen”? Suppose the House of Representatives thinks the electoral count remains incomplete because of an intractable dispute, and thus in its view the situation calls for an acting president until the dispute is resolved, whereas the outgoing vice president (before noon on January 20) believes that the electoral count has been brought to a conclusion despite the House’s objection, and thus the declared president-elect is entitled to all the powers of the office starting at the beginning of the new term. Does the Constitution, properly interpreted, provide an answer on whether the situation is one involving an acting president, as the House contends, or a president-elect, as the outgoing vice president contends?
Related, if there were to exist the situation at noon on January 20 of two simultaneous claims to the status of commander-in-chief—one from previously incumbent president claiming to have been declared re-elected by the outgoing vice president, and the other from the Speaker of the House claiming to assume the status of acting president given the House’s declaration that there is no president-elect because the electoral count remains disputed and incomplete—do military officials, including those responsible for control of nuclear weapons, wishing to obey the lawful commander-in-chief know how to decide who is the lawful commander-in-chief?’
Ah hah, there’s the rub. Foley’s eerily accurate prediction about how the 2020 General Election would play out is actually a fictional tale designed to terrify legislators and citizens into removing presidential atomic weapons powers from the Executive Branch, in which they currently reside, and placing them under the Legislative Branch responsibility umbrella. He’d like to take the button out of the Oval Office and put it in the halls of Congress, in other words.
Foley’s work has purpose beyond the readily noticeable anti-Trump, chest thumping factor – he’s published a gaming plan. As I’ve posited too many times already for most people’s nerves to handle, all of the confusion before the election ensured a chaotic aftermath; I believe that was by design. After reading, Preparing for a Disputed Presidential Election, my belief has morphed into unshakeable faith.
Edward B. Foley, Prognosticator Extraordinaire or author of an Instruction Manual? I’ll vote for anti-American egomaniac who scarily nailed it on the 2020 election. By the way . . . who’s all revved up and ready for a President Pelosi?
ELECTORAL COLLEGE VOTES IN STATES WITH ALTERNATE ELECTORS
Arizona – 11
Nevada – 6
Pennsylvania – 20
Wisconsin – 10
Michigan – 16
New Mexico – 5
Georgia – 16
CURRENT PRESIDENTIAL ELECTORAL VOTES
Biden – 306
Trump – 232