Don’t Muck with My Election Donald J. Trump!

Caveat – I am not a constitutional scholar. Just a reasonably well-read person trying to demystify what to many is an arcane and nearly impossible to understand process. This article presents my interpretations and feelings based on the fairly extensive research I have conducted. It is possible this article may include a few errors in technicality. If you see any, feel free to comment. Just try not to be too nit-picky. The point of this article is to demystify the Presidential election process, not write a treatise on the constitutional basis for it. With that in mind, let’s get right to it.

First and foremost, the Presidential election process is determined by the Constitution. The President CANNOT override the Constitution. Trust me when I tell you if he tries Chief Justice Roberts and the rest of the Supremes, even the ultra conservatives on the court, would body tackle him on the run in full robes and escort him out of the White House, and the Secret Service would make sure he didn’t return. Now THAT is an image I would love to see. I’ve written a blog with a brief description of the Presidential election process including a timeline I extracted for 2020 from the National Archives and why you shouldn’t believe any of the crap both parties are spewing about the possibility of Trump playing games with the election. The apocryphal stories are merely rhetoric intended to fire up the base on both sides, nothing more. Ignore it! Most of you probably know much of this stuff, and I must admit to not being a constitutional scholar, though I learned quite a bit in researching this article. Please bear with me if those of you smarter than me find errors. I don’t think there are many but feel free to point them out. Just please cite your source so everyone has the benefit of the knowledge. With the exception of the election timeline which came from the National Archives official site, most of what I got here I summarized from Wiki which, while generally a good source, occasionaly gets some things wrong. You can get all the reference source info from wiki if you are interested in pursuing it further. My point with this article is equal parts education, and through that education reassurance that this Presidential transition will follow the same process as every one before. I’ll follow up in a few days with an article about Joe having to watch his 6…in Naval aviator terms the refers to the ”6” hand on the watch, aka watch your ass Joe.

The Presidential election is governed mostly by the Constitution and state laws with one or two Federal laws thrown in on the margins dealing with dates and deadlines with little import on the outcome. Mostly the Federal government acts as the bean counter for the Electoral College and goes through the largely ceremonial act of certifying the results. The overwhelming majority of the process for electing our Presidents is executed by the states under the broad direction of the constitution, so the risk of Trump pulling shenanigans across 50 states at the same time is non-existent. Doesn’t mean he won’t try, it just means he won’t get away with it.

There is one very important point I want to make from the outset and it involves the Vice President. The Twelfth Amendment to the Constitution requires that the Vice President be fully eligible to take over the role of President if required. The fact that Kamala Harris was certified to be on the ballot as Joe Biden’s Vice President establishes that she has full citizenship and is fully qualitied to take over the office of President if and as required. So, let’s put the “birther” issue to bed please. If you raise it, you are ignorant of the constitution. Now, on to the good stuff.

First off, as you should know from the last election, individuals do not vote for the President. They vote for Electors in each state that together form the Electoral College and it is the Electoral College that elects the President. Hillary Clinton won the popular vote by 2.9 MILLION more votes than Trump in 2016 but still lost the presidency. That’s because each state has a fixed number of electors, and she can only win that fixed number of electors. It matters not how many extra popular votes she gets in that state. Once she has enough votes to win the state’s allotment of electoral votes, that’s all she gets. In 2016 New York had 29 Electors to vote in the Electoral College. There were candidates from the Green Party, the Libertarian Party, and an Independent candidate in addition to Hillary Clinton representing the Democrat Party, and Donald Trump representing the Republican party. The candidates representing the Green Party, the Libertarian Party, and the Independent are not worth naming as combined they pulled in fewer than 350,000 votes, probably mostly family members, so they were complete non-issues. Donald Trump got 2,819,534 votes. All Hillary Clinton had to do to win New York’s 29 Electors was get 2,819,535 votes, or one more vote than Donald Trump. Instead, she got 4,556,124 votes of which 1,736,590 made no difference in her carrying the state’s electors. They undoubtedly helped down ballot candidates, candidates for the House and Senate seats, but those extra votes bought her nothing when it came to getting her any closer to the presidency. They represented the popular vote but did not contribute to her gaining a single additional Elector from the state of New York. She still only got the 29 Electors New York was allocated. The same was the case in California.

That my friends is electoral math. Every Presidential candidate knows that, and they adjust their campaign strategy to make sure they campaign in competitive states just enough to make sure the get enough votes to win the electors and then they move on to other states where the race is closer. Or at least that is how it is supposed to happen. Hillary didn’t treat 2016 as a campaign, she treated it as an anointment. After all, she was the chosen one. Having been through two Presidential elections with Bill, Hillary knew all about Electoral College math going into the election. All her grousing about winning the popular vote but losing the election is her being a disingenuous sore loser because she chose to stroke her ego in states like New York and California where she already won and didn’t need to campaign, rather than spending her time campaigning in traditionally Democrat states that she took for granted but where the margins were closer than her pollsters realized. Trump on the other hand outcampaigned Hillary on the ground by 50% and won the Presidency because he outsmarted her. He ignored the big states that he knew he had no chance of winning, like California and New York, though he did make a few campaign stops in each again most likely for the benefit of down ballot candidates. His pollsters used newer models that allowed him to identify and track battleground states where they discovered traditional Democrat strongholds were on the margins and that is where he put his energy, to ensure he won their electors even if only by the smallest of margins. Because more than one vote over your opponent effectively gives you all the Electors for that state, you can afford to be more agile and cover more ground and that was Trump’s path to victory. He also properly judged the people were tired of political dynasties like the Bushes and Clintons, as well as the infighting, constant squabbling and lack of action on the part of the Legislative Branch, so he spent more time spreading himself and his message of draining the swamp across the smaller, lower Electoral count and traditionally blue collar Democrat states, with a message that resonated with the people. All he needed was one more popular vote in each state than Hillary got to gain the entirety of that state’s Electors, and that is how he became President.

It would be instructive to look at just a couple of examples. Trump spent a fair bit of time campaigning in Michigan. Michigan is one of those odd states that voted Republican for the longest time, but beginning in 1992 they were a firewall for the Democrat candidate in every Presidential election since. Trump’s decision to spend so much time campaigning in a state the Democrats counted on as a sure thing drew much laughter and mirth from the Democrats. They thought he was a political novice wasting his time and money, but what they didn’t realize is that his new form of polling showed deep dissatisfaction in Michigan with the Democrat party. He swooped in and offered them a new vision. Let’s bring manufacturing jobs back from overseas and put you back to work in decent paying jobs with healthcare you can afford rather than this Obamacare garbage. The message began to resonate and while he knew it, the Democrats were clueless. Hillary visited Michigan a grand total of six times while Trump visited a total of 13 times and rather than just holding one or two rallies each trip as Hillary did, Trump held rallies throughout the day and late into the evening, and even made time to go from door to door to introduce himself and his message of hope. Plus he held a huge rally in Michigan the night before the election. That was after visiting five other battleground states earlier in the day. Michigan only has 16 Electors to offer as compared with New York’s 29, or California’s 55, and though he only won Michigan by the slimmest of margins, 0.23%, that was all it took to get him their 16 Electors. That win stunned the Democrat party.

Next came North Carolina, a southern Republican state but one which President Obama won in 2008 and though the Republicans won in 2012 it was uncomfortably close. Trump did not want to lose their 15 Electors, so he worked it hard. Hillary made 16 campaign stops Trump made 23, including a final stop early on the day prior to the election. Once again in addition to the rallies, Trump found time to go door to door to make sure people knew who he was and what his message was. He won North Carolina by just under 4 percentage points which gave him 15 Electors. Add that to the 16 Electors he won in Michican and what he gained in those two states more than offset Hillary’s win in New York. Pretty smart strategy. You see while Hillary was swinging for the fences in states she already had locked up, trying to run up the score so she could claim she had some mandate while at the same time basking in her assumed anointed glory, Trump was playing the old Baltimore Oriole game of small ball. A base hit here, stolen base there, perfectly executed bunt to load the basis, and then the suicide squeeze to bring home the run. He did that time after time in state after state and THAT my friends his how Trump won in 2016. THAT is how you play the Electoral College game.

Like it or not, the Electoral College is our system and it is designed to keep three or four large cities like NYC, LA, and Chicago from electing a President who will preside over the entirety of the nation. That may change someday, but it will take an amendment to the constitution and that isn’t likely to happen anytime soon. Personally, I think it was wise of our founders to set it up this way. It keeps a geographic minority of the country from imposing their will on a geographically broad set of states with vastly different issues of great complexity and diversity. As much as democrats like Al Gore and Hillary Clinton like to complain about it because they are losers who just didn’t get it, the Electoral College concept was sheer brilliance and it has stood the test of time.

The founders also built in all sorts of contingencies to cover just about anything that could go wrong with a Presidential election, and I’ll cover some of those here. Under Clause 2 of the 12th Amendment to the Constitution, each state gets as many Electors as the total number of Senators and Representatives serving that state in the Congress. Also under Clause 2, each state gets to choose the manner for selecting the electors as determined by the state legislature. The federal government has no role in that. What this means for those of you afraid somehow Trump is going to steal the election…ain’t gonna happen. If he tries, the Supreme Court will be on his butt quicker than a fly on a balony sandwich to coin a phrase a friend uses.

States use the popular vote as the method for choosing their Electors and who the Electors will vote for (with two exceptions which I won’t bother getting into here). Whichever candidate the majority of voters select commits that state’s Electors to voting in the Electoral College for that candidate. Until recently it was possible an Elector could go against the popular vote, known as the “faithless Elector” but a recent Supreme Court decision closed that loophole by allowing states to either penalize or replace any so called “faithless” Elector.

The one time Federal law comes into play during a Presidential election is setting the date of the election. Federal law has established election day as being the first Tuesday after November 1. Since that is set by Federal law and not the Constitution, that is the one thing Trump could technically muck with. BUT…it is Federal law which means to change it, he would have to get both the House and Senate to agree, and you just know that ain’t gonna happen. And because it is Federal law, he can’t change it by Executive Order. He could try, but remember the image of the Supreme Court in full robes taking him down. Not going to happen. Barring some nationwide catastrophe that brings the President, the House, and the Senate into agreement (not bloody likely), election day WILL be held November 3rd, 2020. And even if by some miracle the Legislative and Executive branches agree to delay it, the rest of the Presidential selection timeline IS governed by the constitution so the end result will be the same. We will have a Presidential Inauguration on January 20th, 2021.

There are provisions on a state by state basis for early voting, as well as absentee and mail-in voting, so a good number of votes could come in early. Some states actually delay counting absentee ballots if the number of absentee ballots sent in would not make a difference in the overall vote. Personally I think that process is shameful. All votes should be counted at the same time. Once the vote is complete, each state has until the first Monday after Dec 12th to certify their vote and cast their electoral votes. This year that date will be Monday, December 14tt. Other than the date of the election which is set by Federal law, the rest of these proceedings are established in the constitution and are not negotiable unless a challenge is made to the Supreme Court, which would likely be heard and decided expeditiously if there is merit, more likley to be refused on the basis of lack of merit Here is the timeline for the 2020 Presidential Election as extracted from the National Archives website:

November 3, 2020—Election Day
(first Tuesday after the first Monday in November)
During the general election your vote helps determine your State’s electors. When you vote for a Presidential candidate, you aren’t actually voting for President. You are telling your State which candidate you want your State to vote for at the meeting of the electors. The States use these general election results (also known as the popular vote) to appoint their electors. The winning candidate’s State political party selects the individuals who will be the electors.

Mid-November through December 14, 2020
After the presidential election, the Governor of your State prepares seven Certificates of Ascertainment. “As soon as practicable,” after the election results in your State are certified, the Governor sends one of those original Certificates of Ascertainment to the Archivist.

By December 8, 2020—States resolve controversies
(at least six days before the meeting of the electors)
States must make final decisions in any controversies over the appointment of their electors at least six days before the meeting of the electors. This is so their electoral votes will be presumed valid when presented to Congress. Decisions by States’ courts are conclusive, if decided under laws enacted before Election Day. (N.B. this was the provision that drove the ultimate conclusion date for the “hanging chad” controversy in Florida’s Bush v Gore election…otherwise it might still be going on. So any legal challenge either Trump or Biden tries to bring to the courts for the 2020 election challenging a state’s results or demanding a recount must be concluded by this date…it is NOT an open ended process).

December 14, 2020—electors vote in their States
The electors meet in their respective States and vote for President and Vice President on separate ballots. The electors record their votes on six Certificates of Vote, which are paired with the six remaining Certificates of Ascertainment. The electors sign, seal, and certify six sets of electoral votes. A set of electoral votes consists of one Certificate of Ascertainment and one Certificate of Vote.

December 23, 2020—electoral votes arrive
Electoral votes (the Certificates of Vote) must be received by the President of the Senate and the Archivist no later than nine days after the meeting of the electors. If votes are lost or delayed, the Archivist may take extraordinary measures to retrieve duplicate originals.

On or before January 3, 2021—Archivist transfers Certificates to Congress
As the new Congress assembles, the Archivist transmits sets of Certificates to Congress, as requested. This generally happens when the Senate does not receive its set of Certificates on time. The transfer occurs in late December or early January when OFR’s Legal staff meets with representatives of the Secretary of the Senate and the Clerk of the House.

January 6, 2021—Congress counts the electoral votes
(N.B. This session occurs after the newly elected Congress is sworn in and is composed of the newly elected Congress) Congress meets in joint session to count the electoral votes. The Vice President, as President of the Senate, presides over the count and announces the results of the Electoral College vote. The President of the Senate then declares which persons, if any, have been elected President and Vice President of the United States. If any objections to the electoral votes are made, they must be submitted in writing and be signed by at least one member of the House and one Senator. If objections are presented, the House and Senate withdraw to their respective chambers to consider the merits of the objection(s) under procedures set out in Federal law.

If no Presidential candidate wins at least 270 electoral votes (a majority of the 538 available votes), under the 12th Amendment to the Constitution the House of Representatives decides the Presidential election. If necessary, the House would elect the President by majority vote, choosing from among the three candidates who received the greatest number of electoral votes. The vote would be taken by State, with each State having one vote. (The District of Columbia does not vote because it doesn’t have voting members in the House of Representatives.)

If no Vice Presidential candidate wins at least 270 electoral votes (a majority or the 538 available votes), under the 12th Amendment the Senate elects the Vice President. If necessary, the Senate would elect the Vice President by majority vote, choosing between the two candidates who received the greatest number of electoral votes. Each Senator would have one vote.

January 20, 2021 at Noon—Inauguration Day
The President-elect and Vice President-elect take the Oath of Office and become the President of the United States and Vice President of the United States, respectively.
Again, this is a firm date that the President can’t muck with so there is no need to worry about him “delaying the election”. He simply doesn’t have the authority to do it, and no Executive Order he could write can change that.

What will make this election particularly challenging is the anticipated number of absentee and mail-in votes, but states have had plenty of time to prepare and there is no provision in the constitution for delay. The states will have to count all ballots and made their Electoral choices in time to make the December 8th deadline for any legal challenges to be resolved by the courts, period full stop.

The constitution mandates that the new President be sworn in on Inauguration Day so trust me folks there WILL be a new president come noon on January 20th. It may still be Donald Trump if he is re-elected, but that will reflect the will of the people. Not all people, not the popular vote, just those voting to put him over the top with 270 Electoral College votes.

While the Constitution provides broad guidelines for Presidential elections, all the details as to how to implement the presidential elections are left up to each state. Procedures in one state don’t necessarily apply to procedures in another so don’t let someone tell you just because this is how it works in Nebraska it works the same in Michigan. It doesn’t work like that. Also, each state determines its own rules for voter eligibility, the exception being that there can be no discrimination against voting based on age (over 18), race, color, sex, or sexual preference and orientation. Oh and one more caveat…the dead can’t vote. That one is pretty much universal though it does occasionally crop up. It is up to each state to regulate voter eligibility and registration. Some states ban convicted felons from voting while others do not. The requirements for registration has been a hot topic of late and though they are locked in for this election, they will likely be addressed prior to future Presidential elections.

The Presidential election is really a combination of 50 different state elections run by each state with broad governance from the constitution with the federal election commission serving mainly as the chief bean counter. And that my friends is why any of this hogwash about Trump mucking with the election is just that…hogwash.

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