Trump’s North Carolina ‘Double-Dip’ Voting Advice

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Channeling his inner George Costanza, and perhaps his outer George Costanza as well, President Trump suggests that his supporters try double-dipping at the ballot box.

This week, Impeached Liar President Trump told his North Carolina supporters that they should vote for him twice, so as to make sure that one of the votes counted.  This is illegal under federal law.  This led a longstanding friend to ask me on Facebook whether Trump or the people who follow his advice were likely to be prosecuted.  And that led to this very long meditation on the topic.

Trump’s defenders said that he was just joking, which may be a viable defense, to the extent that it might lower his criminal state of mind from “intentional” to “knowing,” “reckless,” “negligent,” or even “brainless.”  But: Trump later clarified that he meant that they should first vote first by mail and then vote again at the polls if it wasn’t certain that the mail ballot had counted, and whichever one got there first would count and the other will be discarded.

This might actually be a fairly sensible procedure to follow except for two things: (1) double-dipping at the polls is still clearly illegal under federal law and (2) it would put a massive extra strain on the vote verification and tabulating system just when we can least afford it, exacerbating delays.

(Oddly, his clarification that what he said was not so extreme, due to its making some sense — and thus likelier to persuade voters to do as instructed — undercuts the defense that he was joking.  Delicious as that irony may be, it won’t matter: the Department of Justice (at least under U.S. Attorney General Bill Barr) will refuse to prosecute him for solicitation of a federal crime, on the grounds that impeachment is the only constitutional remedy for crimes by the President.  (They may also note that it turns on the factual matter of whether he was joking. But see above.)

Even if, prior to the general election, the House were to impeach him for soliciting double voting, the current Senate will not remove him and the Supreme Court won’t intercede — because it’s Trump.

Some of Trump’s supporters will likely try to vote twice even if he was “joking.” If the legal system works, anyone who attempts to do so would be prosecuted by the DOJ.  Some who attempt it will likely succeed at getting both votes accepted. They would be even more likely to be prosecuted — but (unless the strained election officers do their jobs), also to have those votes counted.

Yes, Trump’s poor unfortunate dupes would have a defense that they did so only  because they were misled by the President — and while “mistake of law” is not supposed to be a defense, it’s still a pretty good excuse, and that might make it hard to obtain convictions, due to jury nullification, which weighs against going ahead with prosecutions.

Of course, the failure to prosecute undercuts deterrence against future such schemes.  And note that some voters — cough minorities cough — might get prosecuted anyway.

If Trump wins, he will likely issue them a blanket federal pardon — or at least will pardon people individually if they apply. If he does so, the House might impeach him to try to neutralize the pardon, using the mysterious and never really explained “except in cases of impeachment” clause regarding the pardon power. That probably will not work, but it’s not inconceivable.  The Congress probably will do this in regards to the execrable Roger “the President should declare martial law if he loses” Stone.

If Trump loses, he could *still* issue a blanket federal pardon, but probably would wait until it’s too late for the House to put together an impeachment that might neutralize them.  If he doesn’t issue such a pardon, those whom he misled may be prosecuted.  If he *does* issue one, they might be called to Congress to testify about how they got to the point where they would do this crime, and that might be very beneficial to our society, though not to Trump.

The problem for Trump there is that federal elections are *also* state elections, and the voters will (I think it’s safe to presume) have also violated state law, for which he *can’t* pardon them. In North Carolina, Democratic incumbent Gov. Roy Cooper won’t pardon them. His challenger, Republican Lt. Gov. ________, just might. __________;s chance of winning is of course higher if we presume that most extra bogus votes for Trump are also extra bogus votes for him.)

The defense might argue that these federal laws are superseded by federal laws under the Supremacy Clause, but I don’t think that there are five Supreme Court votes to uphold that.

Now believe it or not, all of *that* is just a preface to a question I *want* to answer, which is: what the hell is Trump up to?!

The minimum effect of what Trump has done is to sow confusion into the process. That leads to greater delay — and as you’ll see, greater delay might help him win.

The biggest danger in this election — especially in states like North Carolina, where Republicans control both legislative houses (lower by 65-55, upper by (29-21) is that Article II, Section 1, Clause 2 of the Constitution states (emphasis added) that:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”

In the past, states have appointed the winner of their popular vote (or, in the case of Nebraska and Maine, that winner plus individual popular votes for their congressional districts.) But there is no *constitutional* requirement that they do so. And a “legislature directing” arguably — though I think it’s unlikely — would not require a law itself, as a law requires presentment to the Chief Executive and that language seems not to refer to that, but possibly only a joint resolution.  (And litigating that — under state law, but possibly in federal court — would take time.)

Under federal law, to have its electors count, a state must appoint those electors by the first Monday after the second Wednesday in December — which this year is December 14.  Subtract from that date the time required to do whatever must be done once the election is certified — and that’s the effective deadline for the counts (including recounts) in all states (& DC) to end.

The electors meet in their various states no later than December 14 and cast their ballots. The ballots are opened at a joint session of the new Congress in the first week in January. (As the incumbent Vice-President, presuming that he still is that, Mike Pence will preside.) The Supreme Court recently ruled that states may enact legislation to prevent electors from casting “faithless” ballots for their own choice — but it’s not clear to me which states have done or will do so, and if they haven’t then duress and bribery are serious possibilities late this fall.

If no candidate has a majority of the Electoral Vote, then Congress immediately goes to what is called a “CONTINGENT election.”  The House chooses the next President from among the top three candidates — so either Libertarian nominee Jo Jorgenson or the Green Party’s Howie Hawkins might be in the mix, but as neither are likely to win any electoral votes, only faithless electors could put them there —  with an absolute majority required to win.  The Senate chooses the Vice-President from the top two contenders. The Senate vote is straightforward — except that scholars disagree on whether Pence may cast the deciding vote for himself, in the event of a tie, to create a majority. (And, depending on the election results, a tie is quite conceivable.)  If the office is left vacant, the new President would nominate a candidate and the Senate would approved them, or not.  Presuming Nancy Pelosi is the alternative successor, my guess is that even the Republican Senate would.

Straightforward, more or less.  But the House … oh, it does not work in the way that, unless you’ve already about heard this, you probably think that it does.

The House doesn’t decide by a majority vote.  Rather, it votes by State Delegations — that is, each of the fifty states (and *not* DC) casts one vote, based on a vote of its Representatives. Yes, California gets one vote — and Liz Cheney, as Wyoming’s sole Representative, also gets one vote. In other words, that the Democrats have a 232-198 advantage in the House of Representatives, with one Libertarian and 4 vacancies, does not matter.

(You may just now have developed a creepy sense of where this is going.)
Now, we’re currently in the 116th Congress, the composition of which we know, but the votes would be cast by the 117th Congress. Its composition is unknown, but we can try to gauge what it might be based on the current delegations.
The following 26 states (presented in groups of five per line to facilitate your counting them) currently have Republican majorities in their caucus (with small margins noted by number):
Alabama, Alaska (1-0), Arkansas, Florida (14-13), Georgia,
Idaho, Indiana, Kansas, Kentucky (4-2), Louisiana,
Mississippi (3-1), Missouri, Montana (1-0), Nebraska, North Carolina,
North Dakota (1-0), Ohio, Oklahoma, South Carolina, South Dakota (1-0),
Tennessee, Texas, Utah (3-1), West Virginia, Wisconsin (7-3), Wyoming (1-0).
The following 22-23 states have Democratic majorities in their caucus (with small margins noted by number):

Arizona (5-4), California, Colorado (4-3), Connecticut, Delaware (1-0),
Hawaii (2-0), Illinois, Iowa (3-1), Maine (2-0), Maryland,
Massachusetts, Michigan* (7-6-1), Minnesota, Nevada, New Hampshire,
New Jersey, New Mexico, New York, Oregon, Rhode Island
Vermont (1-0), Virginia, Washington

The following 1-2 states currently do (or may likely) have evenly split delegations:

Pennsylvania (9-9); Michigan*, as notrf above, isn’t tied, but it could be tied if Republican Peter Meijer beats Democrat Hillary Scholten in the slightly Republican leaning district being vacated by Justin Amash].

(I note the (1-0) states (with at-large members) because if one of them died or resigned after the election, but too late for a new election to be held, their state would not participate in the House’s contingent election. Just in case this didn’t already strike you as crazy enough.)

So, as it stands, under the current Congress, Republicans control 26 delegations, Democrats control 23 (counting Michigan), and one is tied. (If no representative would give way in Pennsylvania, its deadlock would lead to its not casting a vote for President.)

On this ultimate tie-breaker, it looks like Trump would win.  We can then work backwards from there: If Trump would win in the event of a contingent election, then delay — overwhelming the officials in charge of voting, cutting the numbers of voting booths and early voting, needling the umpires to make them nervous and cautious even before the voting had begun, and most of all, agitating for a quick end to vote counting before it ends as the results trend increasingly blue — to cause a contingent election would provide a path to an legal but illegitimate win.

While most of the posturing about mail-in ballots is designed to give people a reason to doubt the legitimacy of an election that he loses — and perhaps to precipitate the kind of “Brooks Brothers riot” in Palm Beach that ended the Florida recount, except with more violence. including “recourse to Second Amendment remedies, if you know what I mean — part of it may be a strategic way to “wait out the clock” if he knows that he’d win the tiebreaker.

Some observers have argued that Trump-friendly states might decide that they will report their own choices rather than the public’s — whatever existing law exists to the contrary be damned. (Having a friendly Supreme Court, like Wisconsin has had for years, would certainly help here.) Failing that, in a red-controlled state (like North Carolina) that votes blue — they might simply refuse to certify their electoral votes at all, due to supposed shenanigans or snafus. This could then force a contingent election, where — based simply on control of delegations — Trump would win.

Luckily, I’ve left something out of the analysis of state delegations: Never Trumpers.

If Biden wins the popular vote, and if it seems clear that (if all the votes were counted and all states had certified and reported the votes) he would have won the electoral vote as well, it will be hard for Republicans from the states that voted for Biden but got squelched by their legislature to vote for Trump. Hard, but not impossible; Republicans are much better than Democrats at obtaining compliance.

But it would be even harder for those who have made it clear that they *dislike* Trump to do so. They could say “party be damned” and vote for Biden. Or they *could* simply not show up for the joint session. (Pelosi will still be in charge; she’s not going to send the Sergeant-at-Arms after them.)

This is likely a problem only for Republicans. I don’t think that we’ll see many Never-Biden Democrats in Congress. (Out in the public sphere, sure. But not in Congress. They get the stakes.) So it would not take many votes in Florida to flip the outcome, or Kentucky or even Utah to create a tie. Or one or more at-large reps could decide to stay home. Even North Carolina, if it goes hard for Biden and the gerrymandered 10-3 Republican majority shrinks to perhaps 7-6 could see one Republican stay home (if one does so, the state cases no vote) or even switch (in which case the delegation goes to Biden.)

Or … we could even see the House intentionally delay reaching its 26-state requirement until after noon on Inauguration day. If that happened, the new Vice-President would become “Acting President.” (In a circumstance where “Acting” is not the result of a temporary disability, but a permanent one such as death or failure to elect a President, it is the same as “President.”)

The *easiest* way to accomplish a failure to appoint someone would be to deny the quorum required by the Twelfth Amendment of the Constitution. That would require some amount of trust between parties, though.)

Now, for maximum wackiness: his could even be used as a trick to let Republicans elect *Pence* rather than Trump. If neither side gets 270 (because, for example, some states default), Never-Trumpers (if there are enough of them in the right delegations) could switch to Biden.  If they change enough delegations’s to for Biden to get to 270, he wins. Or, if there are enough Never-Trumpers, they could simply act deadlock their delegations and keep their state’s votes from being cast, so that no one reaches 270!

If they don’t pass a winning vote by noon on January 20, then the new Vice-President takes office.  If Republicans hold the Senate, that would be Pence, so enough might consider it preferable — and Democrats may play along quietly for some consideration, for example on judicial appointments. (If Harris is likely to be chosen by the Senate, though, House Never Trumpers won’t likely do this.)

Unless, that is, Never-Trump Republicans and center-right Democrats decide that they don’t want Trump,as President, or Harris as Vice-President immediately becoming President, either.  Then the Senate could simply *refuse to choose* a Vice-President by noon on Inauguration Day. This would leave the position vacant — and the line of succession would then go to the Speaker of the House. But right now, that’s Nancy Pelosi. And of course Republicans won’t elect Pelosi.

However — the Speaker of the House doesn’t have to be Pelosi!  In fact, it doesn’t have to be any of the incumbent members of the House at all! (It always has been, but that’s not a constitutional requirement.)  It doesn’t even have to be someone constitutionally eligible — but in this circumstance that would be as likely.

So, the House — now voting as individuals, rather than delegations, so that the Democratic majority finally matters again — could choose as its Speaker … drumrollJoe Biden!  Furthermore, this could happen as the result of a deal where Biden agreed to nominate as his Vice-President, with enough Democrats agreeing to confirm him along with, we’d presume, most Republicans — John Kasich!

Kasich would probably have to agree in turn that he would appoint a moderate Democrat — someone like Amy Klobuchar — to be Vice-President if he ascended to the Presidency. And, being only 66, he’d probably live out the term.)

Two old white male moderates would be music to the ears of centrists!  (Why, we haven’t had that since Clinton and Gore left office!) It would also, of course, lead to riots by people from both sides — but at least they wouldn’t be *race* riots! (And Attorney General Harris would have fun prosecuting Trump and his family and his cronies for federal crimes, so it would not a total loss for her either.)

So, my point is — does a constitutional amendment to eliminate the Electoral College seem any more reasonable to you now?

About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Deposed as Northern Vice Chair of DPOC in April 2014 (in violation of Roberts Rules) when his anti-corruption and pro-consumer work in Anaheim infuriated the Building Trades and Teamsters in spring 2014, who then worked with the lawless and power-mad DPOC Chair to eliminate his internal oversight. Expelled from DPOC in October 2018 (in violation of Roberts Rules) for having endorsed Spitzer over Rackauckas -- which needed to be done. None of his pre-putsch writings ever spoke for the Democratic Party at the local, county, state, national, or galactic level, nor do they now. One of his daughters co-owns a business offering campaign treasurer services to Democratic candidates and the odd independent. He is very proud of her. He doesn't directly profit from her work and it doesn't affect his coverage. (He does not always favor her clients, though she might hesitate to take one that he truly hated.) He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)