What Happens if No One Wins?

Article subtitle: 
The Constitution provides for election crises—and its provisions favor Trump.
Article author: 
John Yoo and Robert Delahunty
Article publisher: 
American Mind
Article date: 
November 5, 2020
Article category: 
National News
Medium
Article Body: 

The following article explains in detail the process that would transpire if no winner is declared in the election. It's complex, convoluted, and in some scenarios the constitutionality of the process is not clear. Which would lead to the Supremes getting involved. Which implies the importance of confirming Barrett to the Court, or for Democrats to vehemently oppose her. Article excerpts follow:

... In this essay we provide a short roadmap through the main legal and constitutional issues that could arise if Election Day fails to result in a clear winner of the presidency, identify opportunities for political mischief, and explain why the weight of the constitutional structure favors President Donald Trump in a contested election....

A crucial fact in this year’s election is that, largely because of COVID, an unprecedented number of voters will vote by mail. According to the Washington Post, 84% of the electorate, or 198 million eligible voters, will be able to vote by mail this year. In the 2016 election, roughly 25% of the votes were cast by mail. This year, as many of half the ballots may be mailed in....

Delayed election results could mean much more than the inconvenience of waking up on November 4 and not knowing who is President. They could trigger a constitutional crisis that would shake the country to its foundations....

An old federal statute, the Electoral Count Act of 1887, establishes deadlines for the states to report their official results and for the 538 members of the Electoral College to meet. The latter date this year is December 14, or 41 days after Election Day. The state deadline this year is December 8. The date is a safe harbor: if a state reports in time, Congress will accept its electors. The Act provides that if “any controversy or contest” remains after December 8, Congress will decide which electors—if any—may cast their state’s votes in the Electoral College.

Delays in counting the votes could well encroach on the December 8 deadline. State legislators and governors might come under mounting pressure to designate electors on their own if the popular vote remains incomplete, especially if there are allegations of fraud or abuse...

The constitutional question is not whether but how a state legislature could reclaim the appointment of electors....

While the Electoral Count Act appears to create safe harbors for a state’s report of its Electoral College votes, the Act itself might prove unconstitutional....

If the House decides the Presidency, Delaware would have the same number of votes as California.

This unusual process makes sense in light of the larger constitutional structure. The Framers rejected the idea that Congress should pick the President, which they believed would rob the Chief Executive of independence, responsibility, and energy. They wanted the people to have the primary hand in choosing the President, but mediated through the states, because they also feared direct democracy....

The Constitution generally—but not always—refers to “Officers” as members of the Executive Branch. Further, the Incompatibility Clause of the Constitution prohibits Members of Congress to hold executive office. Neither Nancy Pelosi nor Chuck Grassley can become President. Mike Pompeo would become President—an outcome so unusual, so unexpected, it just might fit our bizarre times....

Related

Trump’s (64 Day) Post-Election Endgame. or, … Can A Criminal Be Inaugurated President? by Brett Redmayne-Titley, Unz Review, October 28, 2020

Donald Trump's Stealthy Road to Victory, by Graham Allison, National Interest, November 6, 2020.

New Election Math: It’s Not 270, It’s 26-24, by Jay Valentine, American Thinker, November 9, 2020.