Balkinization: Counting the Electoral Votes in 2021

Comments:

Back in 2016, of course, it was Democrats that brought that pressure, and quite openly.

So, frankly, why just consider the version of this where Republicans are the bad guys? Just some personal aversion? A belief that it would somehow be less offensive as a case of just reaching the 'right' outcome by dodgy means?

It's a rather blatant omission.

# posted by

Brett : 7:00 AM

I think most people are capable of recognizing the difference between "Larry Lessig did it" and "The President did it".

# posted by

Mark Field : 9:50 AM

Or the difference between Larry Lessig and "the Democrats."

This is standard Bellmore. Anything he doesn't like that is said or done by any Democrat, or anyone at all Bellmore disagrees with, is automatically attributed to "the Democrats," or "the Left," or whoever. His opponents are not individuals. They are an indistinguishable, monolithic, mass bent only on destruction.

# posted by

byomtov : 10:02 AM

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# posted by

Bart DePalma : 10:53 AM

Gerard: I was keen on one point made by Justice Breyer. Congress possesses the ultimate authority, in counting electoral votes under the Twelfth Amendment, to provide a remedy if electors are faithless or if there is a question about a state's electoral votes.

Congress most certainly has the power to set rules for federal elections, but their 12A duty to count electoral votes appears purely ministerial: "The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; -- The person having the greatest number of votes for President, shall be the President..."

We must, alas, begin to think about what will happen if the President is defeated in November but refuses to leave office. Enormous pressure could be brought on the presidential electors or on state legislatures between the date of the election and the formal vote of the electors to convince them that there was "fraud" or that the election was "rigged" by "fake" mail-in ballots.

Once the state determines the popular vote winner, they generally appoint the winning candidate's slate of electors, so the chances of a substantial number of faithless electors is slim.

The action will consist of observer and court challenges and will be completely one-sided.

The GOP needs to demand observers be present for the receipt and processing of mail-in ballots so other states with Dem officials do not unofficially employ the "vote harvesting" fraud CA has institutionalized. CA is already a lost cause absent congressional voting reform, but states like MI, PA and FL could swing the electoral college in 2020.

# posted by

Bart DePalma : 10:54 AM

There is, of course, no vote harvesting fraud institutionalized by California. Republicans just don't want more people voting.

# posted by

Mista Whiskas : 12:57 PM

Mr. W:

I forget. Were you one of the Dem hypocrites who condemned a GOP Congress critter for engaging in illegal "vote harvesting" fraud in a NC election, but see no evil in CA's legalized "vote harvesting" fraud amounting to hundreds of thousands of votes and which swung six House seats.

# posted by

Bart DePalma : 1:58 PM

In the NC case there were forgeries and ballot tampering. Allowing someone else to collect and mail ballots isn't itself problematic and I've not seen any evidence of big cases of fraud in connection with it in CA. Republicans just don't want more people voting.

# posted by

Mista Whiskas : 2:39 PM

"I think most people are capable of recognizing the difference between "Larry Lessig did it" and "The President did it"."

The point here is, "What if the losing candidate doesn't admit they lost?" and, "What if Donald Trump doesn't admit he lost?" are different questions, and unless you're self-identifying as a partisan, you ask the former.

"In the NC case there were forgeries and ballot tampering. Allowing someone else to collect and mail ballots isn't itself problematic"

Allowing random people to stroll in and out of the vault at your bank isn't itself problematic, aside from the fact that it provides them the opportunity to do things that ARE problematic, unobserved.

Just as vote harvesting does.

# posted by

Brett : 4:12 PM

If allowing someone else to collect others ballots led to significant fraud evidence of it would be easy to come by. Any Californian can see when they were recorded as voting, if people were fraudulently voting for others thousands of people who knew they didn't vote would see that and raise a stink. But I've seen no evidence of that. Republicans just don't want more people voting.

# posted by

Mista Whiskas : 4:18 PM

Mr. W: In the NC case there were forgeries and ballot tampering. Allowing someone else to collect and mail ballots isn't itself problematic...

Nearly every state in the Union but CA outlaws vote harvesting because fraud is so easy under those circumstances.

I've not seen any evidence of big cases of fraud in connection with it in CA.

Because CA Dem officials do not investigate Dem vote harvesting (or any other form of fraud), therefore it does not exist. Sounds like back when the PRI ran Mexico and and won its elections regularly for decades. No fraud here, MoveOn.org.

# posted by

Bart DePalma : 4:57 PM

California has millions of Republicans who can check to see if their votes are being counted or whether they are not being counted or counted when they would know they didn't vote. Yet I've not seen any evidence of fraud there with this. Republicans just don't want more people to vote.

# posted by

Mista Whiskas : 6:08 PM

"The point here is, "What if the losing candidate doesn't admit they lost?" and, "What if Donald Trump doesn't admit he lost?" are different questions, and unless you're self-identifying as a partisan, you ask the former."

Nope. At least since 1876, the losing candidate has always conceded, even when the election was stolen out from under him (Gore). The only one for whom this is an issue is Donald Trump.

# posted by

Mark Field : 7:13 PM

Mr. W: California has millions of Republicans who can check to see if their votes are being counted...

The obvious CA voter fraud is manufacturing millions of Dem votes after the election, not discounting GOP ones.

# posted by

Bart DePalma : 7:40 PM

The obvious CA voter fraud is manufacturing millions of Dem votes after the election, not discounting GOP ones.

For which there is zero evidence outside of what passes for a brain in the body of Donald Trump.

# posted by

byomtov : 9:34 PM

"The obvious CA voter fraud is manufacturing millions of Dem votes after the election, not discounting GOP ones."

They couldn't possibly know who was going to vote or not in any given election and how they all were going to vote. In a system with millions upon millions of voters that means there would be lots of easily identifiable cases of people counted as voting who know they did not. Of course I've seen no evidence for that. Republicans just don't want more people voting.

# posted by

Mista Whiskas : 9:39 PM

Mr. W:

There are two forms of self evident fraud in CA,

In other states, provisional ballots account for the rare administrative mistake in the voter rolls. In CA, they amount to hundreds of thousands of votes after the election, suggesting mass multiple voting.

In other states, vote harvesting (collection, delivery and most likely filling out of ballots by third parties) is illegal because the high probability of fraud. In CA, vote harvesting accounts for hundreds of thousands more votes an painted decades long red districts blue in the weeks after the actual election.

# posted by

Bart DePalma : 8:23 AM

Yesterday, it was millions. Today, it's hundreds of thousands. Tomorrow?

Still no evidence of this remarkable claim. As the rule says, remarkable claims require extraordinary proof. In this case, there's not even any evidence offered.

# posted by

C2H5OH : 8:50 AM

"Nope. At least since 1876, the losing candidate has always conceded, even when the election was stolen out from under him (Gore). The only one for whom this is an issue is Donald Trump."

Wouldn't he need to actually be the losing candidate, for you to establish that he's an exception? I'll grant that it's not unlikely he'll lose, it would be practically miraculous for him to win given everything that's going on. But it WILL only be a question for Trump if he does lose.

And the idea that he would refuse to concede if he loses is mostly based on his refusal to rule out in advance demanding recounts, which was an obnoxious demand for any Democrat to make after 2000.

So, Gore. Lost, fair and square, then tried to steal the election by a selective, last minute recount only in areas where he was likely to gain votes, not state-wide, and thus not an honest effort to find who'd won. And to this day Democrats refuse to admit they actually DID lose that election.

And yet you've got the cast iron gall to claim Republicans won't admit when they've lost...

# posted by

Brett : 8:52 AM

"Wouldn't he need to actually be the losing candidate, for you to establish that he's an exception?"

From the OP: "We must, alas, begin to think about what will happen if the President is defeated in November but refuses to leave office." My emphasis.

Not gonna debate the 2000 election with you. Gore won, the Rs stole it. End of story.

# posted by

Mark Field : 9:46 AM

C2H5OH said...Yesterday, it was millions. Today, it's hundreds of thousands. Tomorrow?

The combination of provisional ballots and vote harvesting amounts to millions. Individually, they do not.

Still no evidence of this remarkable claim.

I have posted this and more before.

Few people noticed when Gov. Jerry Brown signed the changes in AB1921 into law two years ago. In the past, California allowed only relatives or people living in the same household to drop off mail ballots for another voter. The new law allowed anyone, even a paid political campaign worker, to collect and return ballots — “harvesting” them, in political slang... In Orange County alone, where every House seat went Democratic, “the number of Election Day vote-by-mail dropoffs was unprecedented — over 250,000"

California alone had just over 1.3 million provisional ballots cast – 9 percent of all ballots cast in the state – more than all other states combined.

Part of what makes CA's provisional voting fraud possible is massive duplicate or fictional registration of voters.

California is a veritable haunted house, teeming with 1,736,556 ghost voters [registrations which exceed the adult population in the country]. Judicial Watch last week wrote Democratic secretary of state Alex Padilla and authorities in eleven Golden State counties and documented how their election records are in shambles.

Given non-citizens make up 27.3% of the CA population, increase that number of ghost voters proportionally.

"Remember the first rule of politics. The ballots don't make the results, the counters make the results. The counters. Keep counting."

# posted by

Bart DePalma : 9:48 AM

Bart, your paranoia is not evidence -- at least, not evidence of voter fraud. Evidence of voter fraud would be like an out-of-state address on an application trying to register to vote in a state while not residing there. You know, like Trump just did.

# posted by

C2H5OH : 9:52 AM

Gore asked for a recount, to which he was entitled, in an extremely close election. Being selective about the counties was a poor strategy, in my opinion, for a number of reasons.

He should have immediately asked for a statewide recount. Of course, there ultimately was a statewide recount, halted by the Supreme Court on the bizarre grounds that completing it would cause irreparable harm to Bush.

Regardless, Gore's actions did not amount to claims of massive fraud, which we are certain to hear from Trump, and which Brett will surely endorse, should Trump lose. Nor did Gore, unlike the GOP today, and in Florida in 2000, work to keep eligible voters from voting.

There is a big difference between "This was very close, and we should recount to make it as accurate as possible," and "There was massive cheating, which cost me millions of votes."

To equate the two is ridiculous.

# posted by

byomtov : 10:01 AM

In addition to byomtov's excellent points, I'll add that the phrasing of FL recount law appeared to require county by county challenges to votes. Gore's lawyers followed that, though I thought and said at the time that the correct approach was to ask for a statewide recount. And as byomtov points out, that's what the FL Supreme Court ordered.

# posted by

Mark Field : 10:10 AM

C2H5OH said...Yesterday, it was millions. Today, it's hundreds of thousands. Tomorrow?

BD: The combination of provisional ballots and vote harvesting amounts to millions. Individually, they do not.

C2H5OH: Still no evidence of this remarkable claim.

BD: I have posted this and more before.

C2H5OH: Bart, your paranoia is not evidence

You can lead an ass to water, but you can't make him drink.

In the future, do not lie and claim I have never offered evidence. CA cannot reach the numbers I noted, numbers which are larger than the rest of the states combined, without massive vote manufacturing.

# posted by

Bart DePalma : 11:22 AM

Yes, there's no question that he had the right to demand recounts in specific counties. "Specific counties" could, had he wished, been all of them.

And there's no question that he had the right to demand them right before the deadline. Before the deadline IS before the deadline, after all.

But, let's be very clear about this: Asking for recounts in selected counties right before the deadline wasn't a tactic to reveal who really won the state. It was a strategy to push him across the finish line even if he had genuinely lost the state. So let's dispense with this pretense that Gore only wanted the real winner revealed. He just wanted to win, regardless.

Well, fine, as long as you stick to legal tactics. But not the impression you'd like to leave, I gather.

# posted by

Brett : 11:25 AM

byomtov said...Gore asked for a recount, to which he was entitled, in an extremely close election. Being selective about the counties was a poor strategy, in my opinion, for a number of reasons. He should have immediately asked for a statewide recount.

Gore should have demanded a state wide recount as cover for the Dem vote manufacturing in West Palm, Broward and Miami/Dade.

After the Supremes stopped this manufacturing, in part because of this self-serving partial recount, the local media hired an accounting firm to audit the actual ballots and found then Gore vote in these countries was substantially smaller than the Dem officials' count.

I suspect the Dems demanded a partial recount because they assumed the GOP officials in red counties would similarly manufacture votes.

# posted by

Bart DePalma : 11:28 AM

Bircher Bart's 'evidence' amounts to pointing out that more people vote by mail in a state that makes it easier to vote by mail and that there are issues with registering (which is not voting btw).

As I said, if there were significant vote manufacturing in CA where anyone can check to see if they were counted as voting when In fact they did not there would be thousands upon thousands of such demonstrable incidents. But there is not. Republicans just don't want more people voting (and they need a victimhood narrative for their losses).

# posted by

Mista Whiskas : 12:19 PM

Bart's "evidence" makes one suspect that California is a heavily populated state, more populated than other states, and even more than aggregations of several.

But as for "voter fraud?" Nope, no evidence of that, even though Reason (among others) would sell its left kidney to find some.

# posted by

C2H5OH : 12:37 PM

Mr. W: if there were significant vote manufacturing in CA where anyone can check to see if they were counted as voting

Anyone?

The Democrat two step goes like this: (1) Deny data to anyone investigating their fraud, then (2) claim no one has found any fraud.

See, for example, the bureaucracy repeatedly stonewalling FOIA requests and proposed legislation to make "climate change" data public,, then claiming the "science" is undisputed.

In this case, CA Dems led the blue state refusal to provide data requested by the White House commission to investigate voter fraud, citing "voter privacy." Those couple million "ghost voters" I documented above insist on their privacy.

# posted by

Bart DePalma : 1:37 PM

BD: CA cannot reach the numbers I noted, numbers which are larger than the rest of the states combined, without massive vote manufacturing.

C2H5OH said...Bart's "evidence" makes one suspect that California is a heavily populated state, more populated than other states, and even more than aggregations of several.

You can't tap dance your way past the inconvenient facts.

CA has just 12% of the US population, only 3/4 of whom are actually US citizens.

Their provisional ballot and vote harvesting numbers would not come close to exceeding those of all other states combined nor make up over 10% of its own vote.

# posted by

Bart DePalma : 1:43 PM

Brett, aside from the fact that you're wrong on some details, none of what you said has anything to do with Trump refusing to leave office once he loses.

# posted by

Mark Field : 1:51 PM

Bircher Bart is of course being fundamentally dishonest again. His 'ghost voter' claim is based on *registration* issues, not voting. He has no evidence of ghost or any other improper *voting* in CA. As I said, any CA voter can check online to see if they were recorded as voting in a particular election. If 'millions' of votes were being manufactured there'd be demonstrable evidence of voters who knew they didn't vote in an election but who were recorded as such. There is, of course, no such evidence. Republicans just don't want more people voting.

# posted by

Mista Whiskas : 2:53 PM

Yeah, what detail exactly am I wrong about?

The only thing it's got anything to do with, aside from countering your revisionist history, is that there's at least as much reason to be concerned that Democrats won't accept the outcome of this fall's election as there is that Republicans won't.

We should be discussing, "What if the loser doesn't admit to losing?", not, "What if (specific candidate) doesn't admit to losing?" The former is a reasonable question, the latter is just partisanship on display.

# posted by

Brett : 3:01 PM

Take a precinct with 100 eligible voters. Let's say 60 register. In any given election only about half will vote, that's 30. Now, the people that register and the people that vote in any given election will be a constantly changing number. Even in this absurdly small for the sake of the hypothetical sample it would be very difficult to guess which registered voters actually voted in the election, and all that would be needed would be for one person who knows they didn't vote to go online and see that they were recorded as voting when they did not. They could literally screenshot a picture of the info online and poof instant proof of voting fraud. Given the reality is multiplied by millions and includes literally millions of CA voters (many who live under GOP DA's and U.S. Attorneys) there would be gobs of this evidence if our Birchers fantasies were grounded in an iota of reality. But there is not.

Our Bircherd fall victim to the usual hazard for conspiracy thinking: they want a simple, morally easy story for a reality that is so much more complex and nuanced and morally less satisfying. Sloppy thinking gets them back to the former every time because it's where they started and where they wanted to end up the whole time.

Of course our Birchers have long and often declared they don't care much for democratic values. Their complaints about voters rights are insincere from the start. Republicans really just don't want more people voting.

# posted by

Mista Whiskas : 3:06 PM

Trump said during the 2016 campaign he wasn't sure if he'd accept the election results if he lost. He's said further things to that effect for 2020. Has any other major party nominee made such statements?

# posted by

Mista Whiskas : 3:10 PM

Did Gore accept the election results when he lost? No, he fought and schemed all the way to the Supreme court. Do Democrats think that was scandalous? Not so's I've noticed.

It was crazy and hypocritical for a Democrat, after 2000, to demand that their opponent commit to not pursuing any election challenges or recounts. And that IS the context for Trump's statement: Hillary's demand that he rule out asking for any recounts. Shortly after he clarified his statement, saying, "I would accept a clear election result but I would also reserve my right to contest or file a legal challenge in the case of a questionable result,"

What's objectionable about that? Just the idea that a Democrat winning could involve a questionable result, I gather.

# posted by

Brett : 3:23 PM

"We should be discussing, "What if the loser doesn't admit to losing?", not, "What if (specific candidate) doesn't admit to losing?"

The single most important issue is whether the incumbent vacates office willingly. He controls the machinery of government and therefore poses a threat to democracy. A losing challenger poses little such threat (absent a call for violence).

"Did Gore accept the election results when he lost? No, he fought and schemed all the way to the Supreme court."

As byomtov already pointed out, Gore was entitled to a recount as a matter of law. He won in the FL state courts. He won in the District Court. He won in the 11th Cir. Only when the Supremes issued an indefensible partisan opinion did he lose. And what did he do when he "lost"? He accepted the result.

But all your flailing about is still irrelevant to the OP, which expressly phrased the issue as an "if" clause. Trump's own words make that a legitimate hypothetical, as MW said.

# posted by

Mark Field : 3:40 PM

The actual context was he was asked by Fox News host Chris Wallace if he'd accept the election results and he would not say he would. After a furor he held a speech the next day and said he would, but only after joking again that he wouldn't. Combined with several later comments one might see why the focus on not accepting results might be on Trump and not the Democratic candidate from twenty years ago without scheming bias being the likely reason.

# posted by

Mista Whiskas : 3:43 PM

"The single most important issue is whether the incumbent vacates office willingly. He controls the machinery of government and therefore poses a threat to democracy."

As the OP points out above, not ALL the machinery of government. We can, for example, envision a scenario where Trump legitimately wins the E.C., but Democrats manage to achieve a majority of 26 or more House delegations in the incoming House. Would they treat their role as purely ministerial? Or view it as an opportunity to 'correct' the E.C. outcome?

And if they took the latter course, how many Democrats would reject this as an unprincipled power grab? I doubt it would be fewer than Republicans who would back Trump in Gerard's scenario.

# posted by

Brett : 4:17 PM

Man, you are just desperate to whatabout stuff, no matter how implausible.

# posted by

Mark Field : 4:23 PM

And a final note to Bart: So what? The "evidence" you claim doesn't even rise to the level of "circumstantial." California has a far more volatile population than almost any other state. Unless and until you can actually produce evidence, you are simply spitting into the wind. (I'm tempted to use another term, but ...)

# posted by

C2H5OH : 6:14 PM

C2H5OH: California has a far more volatile population than almost any other state.

You are becoming incoherent now.

What does population "volatility," whatever that means, have to do with CA's manufacture of millions of provisional and harvested ballots, or well over a million ghost voter resistrations exceeding the number of adult citizens?

# posted by

Bart DePalma : 6:58 PM

The number of provisional ballots isn't an indicator of evidence of voter fraud as CA has voting friendly measures that explain that (you can mail ballots postmarked Election Day, they have to match signatures on mailed ballots with records and they contact the voter to do so, etc.,), those are features not bugs. Well, for those that value democracy, which our Birchers do not. Republicans just don't want more people voting.

# posted by

Mista Whiskas : 7:11 PM

Moving populations can indeed explain registration issues, when people move a lot or live one place and work others you can easily get ghost voters like President Trump himself seems to have been.

# posted by

Mista Whiskas : 7:13 PM

Bart goes for his strong suit in argument: argumentum ad ignorantiam.

# posted by

C2H5OH : 8:02 PM

Mr. W:

Provisional ballots are for rare instances where a registered voter does not appear on the rolls. Californians do not move at ten times the rate of the rest of the nation. CA can only create more PBs that all other states combined if (1) their elections bureaucracy is incapable of adding new voters to the roll or there is endemic voting in multiple precincts.

# posted by

Bart DePalma : 8:17 PM

"Provisional ballots are for rare instances where a registered voter does not appear on the rolls."

No one here will be surprised that Bircher Bart is ignorant of what he confidently assumes here.
https://laist.com/2020/03/03/why-california-takes-so-long-to-count-votes-after-elections.php

# posted by

Mista Whiskas : 8:31 PM