Trump Likely Has Just One Path to Victory Now – and it’s a ‘Hail Mary’ Pass
Seaborn Hall, 12/17/20, updated 12/23/20
When The Supreme Court recently declined to hear the State of Texas in its lawsuit against four battleground States, it may have set the nation up for an Electoral Vote Challenge in Congress on January 6.
This was a suit joined by President Trump and seventeen other states because it was considered Trump’s best chance for a hearing before the Supreme Court. The Court, which must have four justices vote in the affirmative to hear any case, declined to hear the Texas case on a procedural issue of ‘standing’, the justices voting against 7-2. Only Alito and Thomas voted in the affirmative.
The Texas case was important in that as a State vs. State case it had the right, per the US Constitution, of being heard directly by the Court. Trump is not finished with routes to the Supreme Court, however. There are at least five other suits brought in various battleground states still working their way through the local and federal level that could eventually find their way to the Supreme Court.
December 8, Safe Harbor Day, and December 14, Electoral College Vote Day, have also passed, and the Electoral College vote resulted in a tally of Biden 306, Trump 232. But, there were seven battleground states, including Georgia, Pennsylvania, Michigan, Wisconsin, Arizona, Nevada, and New Mexico which had Republican State legislators submit competing electoral votes.
This may set up the nation for an Electoral Vote Challenge – a battle for the Presidency on January 6, 2021 when the Congress is scheduled to convene to count Electoral votes at 1 p.m.
This is Trump’s one likely route to victory now. A situation like this has not occurred since the Presidential election of 1876. There is only one question – Do Congressional Republicans have the courage?
Why Did The Supreme Court Say ‘No’ to Texas?
When you hear ‘standing’ essentially think ‘harm.’ ‘Standing’ as a prerequisite for a case being heard involves three main types and they all have to do with whether various forms of ‘harm’ have been endured, or may be endured, by the plaintiff.
If is difficult for the lay person – and even many attorneys and legal professionals – to see how various states in the Union, including Texas, have not endured harm in an election where election fraud seems obvious and rampant, up to and including not only the mail-in ballots, but the suspect Dominion Voting System used in 20 states and 2000 jurisdictions as well. Surely what happened in this election is grounds for one state to plead harm against other states who clearly violated Constitutional election procedures, before and leading up through Election Day, that allowed ‘harm’ to occur on a level which may have affected the outcome.
Some believe that the Supreme Court refused to hear the case for reasons having to do with lack of courage. In the 1876 Presidential controversy noted above a Supreme Court Justice had his life threatened and had to be put under special protection. The candidate who became President, Hayes, endured an assassination attempt in the White House shortly after.
There is also a view that the Supreme Court declined the case at this juncture because, as a historical rule, the Court does not like to intervene in elections and means to force state legislators, electors, and the US Congress to do their duty to resolve the election dispute. If this view is accurate, the Court may be willing to become involved at a later date when it is more clear that evidential fraud was involved, and at a level that will clearly affect the outcome.
However, for the Supreme Court to affect the election now it would have to agree to take multiple cases on appeal at once – an unlikely scenario. At least three states with a total of 37 electoral votes or more would have to be overturned from Biden to Trump for Trump to win. This would then possibly set up an Electoral Vote Challenge in Congress by the Democrats.
What Happens January 6?
On January 6, 2021 the Congress convenes to count the Electoral votes, which have by this date been delivered to the President of the Senate, the sitting Vice-President of the United States, Mike Pence.
The Electoral Count Act of 1887, now codified into Federal law, sets the procedure for the vote count and in general, seeks to neutralize the partisan position of the presiding member and sitting Vice President by various procedural measures, including the handling and opening of the electoral ‘certificates’ by accompanying auditors, appointed as tellers, in front of a convened Congress. As each certificate is opened, read, and tabulated – alphabetically by State – members of Congress may challenge a state’s electoral votes.
This is known as an Electoral Vote Challenge.
What Happens in an Electoral Vote Challenge?
An Electoral Vote Challenge must be made by a House member and a Senate member together in writing prior to and presented at the opening of that state’s electoral vote certificate.
When such challenge is presented Congress is required to adjourn to separate and independent meetings of the House and the Senate to debate the challenge. Each house must debate the electoral challenge for no more than two hours then hold an independent roll-call vote (every member of each House votes) as to whether the challenge will be upheld.
Both Houses must vote to uphold the challenge by a simple majority for that state’s electoral votes to be disqualified. One state’s electoral vote validity must be resolved before the President of the Senate may again convene Congress and move on to opening other state’s electoral certificates, again, proceeding alphabetically.
In a normal election year, based on the recent Electoral College results of Biden 306, Trump 232, at least three state challenges would need to be made and both Houses would need to independently vote to uphold each challenge for the Electoral College results to be overturned in Trump’s favor.
Since the Senate is controlled by Republicans and the House is controlled by a majority of about ten Democrats, this result would be very unlikely. Biden would be confirmed as President.
However, 2020 is anything but a normal year. As noted, seven states presented alternate sets of electors. What occurs in this scenario?
What Happens With Two Sets of Electors? Trump’s Path to Victory
In spite of Trump attorney Jenna Ellis’ reported recent statement, a Trump victory in Congress on January 6 is not assured.
According to the Electoral Count Act of 1887 there are clear procedures when more than one set of electors has been sent to Congress because the ‘Act’ came into being as a direct result of the 1876 Election in which this situation occurred.
If multiple states send more than one set of electors to Congress than the Houses must adjourn – as in an Electoral Vote Challenge – and debate for two hours which set of electors to accept. Yet, even here there may be some legal question as to whether the alternate set of electors are legally certified or should be counted as ‘regular votes.’
If it does go to debate, at the close of debate each House votes independently in a roll-call vote to accept one slate of electors. Both Houses must agree on their choice. If they do not, that state’s electors will be dis-allowed and the President will be the candidate receiving the majority of electoral votes from the remaining qualified states.
In this situation, for example, if six states’ electoral votes were challenged – Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin, for a total of 79 electoral votes – assuming a split vote between the House and Senate, all of those states’ electoral votes would be dis-qualified. That would give Biden 306 – 79 = 227. Trump wins with 232 of the remaining states.
According to the Act, “if two or more returns from a state can claim the safe harbor, then neither will be counted unless both houses agree to count one of them as the true return supported by state law.” The key here is the phrase ‘claim the safe harbor.’ Apparently, both sets of electors must be able to claim certification as of the Safe Harbor Day, six days prior to the Electoral College Vote.
Additionally, there is another limitation. According to the Act, “But if the two Houses shall disagree in respect of the counting of such votes [there is scholarly disagreement as to the specific reference of this phrase, ‘such votes’], then … the votes of the electors whose appointment has been certified by the executive of the State, under the seal thereof, shall be counted.”
If this last phrase governed the procedure, then Biden would win. Lastly, if Mitch McConnell, the leader of the Senate, opposes any Electoral Vote Challenge, as it is recently reported that he does, all of this may be a moot issue.
The only Senator who has publicly intimated that he may join the challenge is the new AL Senator, Tommy Tuberville, though Rand Paul and one or two other Senators appear to be open to the possibility. Still, this is not a good sign. For any Electoral Challenge not to fail and give Trump a chance, all Republicans in the Senate would need to be on board and vote almost unanimously to support the challenge. As it stands now, Congress is not likely to be much help to the President.
The only Senator who has publicly intimated that he may join the challenge is the new AL Senator, Tommy Tuberville, though Rand Paul and one or two other Senators appear to be open to the possibility.
Still, this is not a good sign. For any Electoral Challenge not to fail and give Trump a chance, all Republicans in the Senate would need to be on board and vote almost unanimously to support the challenge. As it stands now, Congress is not likely to be much help to the President.
If no Senators support the Electoral Challenge it is dead before it starts. If senators support the challenge, but all of the Republican Senate does not support Trump in the Challenge roll-call vote, then the Electoral College ‘certified’ electors will hold the day and Biden will become President.
Since Mitt Romney is a known anti-Trump Senator and other senators may be as well, without some landmark ‘smoking gun’ event, up to and perhaps even including a Supreme Court decision in Trump’s favor before January 6, this is truly a ‘Hail Mary’ scenario. Hopefully, Jenna Ellis and President Trump know something that we don’t.
It May End with the Supreme Court
The proper interpretation and intended contextual application of the last two Electoral Count Act statements above are sentences that have been disputed by advocates on both sides of the issue. What the two Act ‘clarifications’ mean is that even if the above Electoral Challenge of multiple sets of State Electors does take place and Trump does win – both high risk, low probability scenarios – any result will most likely be challenged in the Supreme Court.
The election dispute of 1876 was extended in Congress for over a month from the initial meeting to determine a President. It was a real battle that resulted in national violence and threatened violence. According to the Act there are specific rules and procedures in place to ensure a speedy resolution to an electoral vote controversy, but because of the requirements of challenges to adjourn to separate Houses and debate the outcome and then vote before proceeding to the next state’s result, any final result may be delayed.
Since any result is also likely to endure a Supreme Court challenge as well it is very possible that we will not know the final outcome of the election until just before January 20, 2021, Inauguration Day – if then.
One other possible path to victory
There is one other route to a victory through the Supreme Court, though it is a low probability path (see the video on our Politics Page, 12/20/20): If the Court decides in Trump’s favor on three separate cases of appeal that could come before it between now and January 20, the alternate Republican set of electors in the battleground states could be certified as the true electors. Trump would win.
A final note, updated 12/23/20: in our first installment on this subject, What Happens Now?, we noted that Pastor Dana Coverstone’s ‘Data Dream’ seems to predict the death of Biden’s candidacy on December 17 (we said that this would be a subtle, not a headline event) and a successive battle in Congress for the Presidency. We now see the battle depicted in Dana’s dream as a possible Electoral Vote Challenge, though, it is hard as of this date to see how this would materialize in any substantial, politically changing way. There would probably need to be a huge ‘smoking gun’ as to election fraud or some other big news to unite Congress for Trump. That said, the dream does seem to foreshadow the end of Biden’s Presidency and the continued Presidency of Donald Trump. But, 2020 has been a strange year and what the dream seems to predict does not necessarily have to play out conventionally.
We believe that President Trump will eventually triumph – but that may not mean that he has to be re-elected and inaugurated in January 2021 as most who follow Dana’s dreams and other Christian prophetic voices expect. See this link for our complete interpretation of that dream.
We referenced the AEI’s 140+ page Electoral College 2020 Guide for much of the information here, but our sources also include various articles, recent media videos, and more, including:
Electoral College Deadlines Not Set In Stone, The Epoch Times
Set in Stone? A Legal Examination of Electoral College Laws, The Amistad Project of the Thomas More Society
Electoral Count Act, Wikipedia