Can Congress man­age chaos?

The Pak Banker - - FRONT PAGE -

The 2020 pres­i­den­tial elec­tion may test the com­pe­tence of Congress to man­age the repub­lic. The House has elected two pres­i­dents when no can­di­date re­ceived the re­quired num­ber of elec­toral votes, 270 to­day. But what hap­pens if on Jan­uary 20, 2021 a pres­i­dent has not been cho­sen due to states be­ing un­able to cer­tify a suf­fi­cient num­ber of elec­tors?

Pres­i­dent Trump openly ad­mits block­ing funds for the Postal Ser­vice to hin­der vot­ing by mail, declar­ing that mail-in vot­ing would con­sti­tute a "rigged elec­tion." Democrats spin "post-of­fice con­spir­a­cies" to se­cure tril­lions more dol­lars for sup­port­ers. Mean­while, the Postal Ser­vice warns states that mail-in dead­lines are too short to en­sure bal­lots are re­ceived in time for count­ing.

These ac­tions are a recipe for in­ten­tion­ally in­flicted elec­toral chaos.

The chal­lenge is whether our lead­ers can work for the na­tion. A Congress that can­not pass reg­u­lar ap­pro­pri­a­tion bills may have to im­me­di­ately im­ple­ment sev­eral con­sti­tu­tional pro­vi­sions, the

Pres­i­den­tial Suc­ces­sion Act and maybe House Rules for de­vel­op­ing a quo­rum in a "catas­tro­phe."

Meet­ing these dead­lines de­pends en­tirely on states timely cer­ti­fy­ing pres­i­den­tial elec­tors and mem­bers of Congress. Cal­i­for­nia counts bal­lots for 17 days after the elec­tion. In re­cent pri­maries, it took Cal­i­for­nia 30 ad­di­tional days after its dead­line to count bal­lots. Com­plex lit­i­ga­tion in sev­eral states will fol­low fi­nal bal­lot counts. On this time­frame, Cal­i­for­nia, with 55 elec­toral votes, will likely miss dead­lines for re­solv­ing elec­tion dis­putes and elec­tors cast­ing bal­lots. Cal­i­for­nia is also home to Speaker Nancy Pelosi, whose term ends on Jan­uary 3, 2021.

Cal­i­for­nia, and nine iden­ti­fied toss-up states hav­ing 135 elec­toral votes, could pre­vent up to 195 elec­toral votes (36 per­cent of all votes) from be­ing cer­ti­fied for a sub­stan­tial pe­riod of time. The only cer­tain re­sult is that at noon on Jan­uary 20, 2021, Pres­i­dent Trump's term will end as man­dated by the 20th Amend­ment.

The 20th Amend­ment and its im­ple­ment­ing leg­is­la­tion, the Pres­i­den­tial Suc­ces­sion Act and

House rules, start com­ing into play around Jan­uary 3, 2021, when the House must have a quo­rum, 218 mem­bers, to do busi­ness, i.e. the elec­tion of the speaker and the count­ing of elec­toral bal­lots on

Jan­uary 6, 2021.

The House is likely to have a quo­rum, since most states will be able to cer­tify elec­tors and mem­bers of Congress by Jan­uary 3, 2021. But the cur­rent House lead­er­ship (Pelosi and Mi­nor­ity Leader Kevin McCarthy (R-Calif.)) could be tied up in Cal­i­for­nia's de­layed vote count­ing. If they have not been cer­ti­fied win­ners, they can­not be sworn into the new Congress.

If the House can­not se­cure a quo­rum, its prece­dents al­low the past clerk of the House to or­ga­nize the House by se­cur­ing a quo­rum un­der the "Cat­a­strophic Cir­cum­stances" provision in House rules. This is a multi-step process to find, iden­tify, com­pel and re­port the sta­tus of mem­bers. When the process is com­plete, the quo­rum re­quire­ments are low­ered to re­flect the House's smaller mem­ber­ship. If the House can com­plete this process be­fore Jan­uary 20, 2021, and elect a speaker, the speaker is first in line to be act­ing pres­i­dent. The House can elect any­one speaker since the Con­sti­tu­tion does not re­quire the speaker to be a mem­ber of Congress.

If a pres­i­dent has not been cho­sen by in­au­gu­ra­tion day, the Pres­i­den­tial Suc­ces­sion Act pro­vides "… the Speaker … shall, upon … res­ig­na­tion as Speaker, and as Rep­re­sen­ta­tive in Congress, act as Pres­i­dent." If "…there is no Speaker … the Pres­i­dent pro tem­pore of the Se­nate shall, upon his res­ig­na­tion as Pres­i­dent pro tem­pore and as Sen­a­tor, act as Pres­i­dent."

It's an open ques­tion how long the Se­nate must give the House to se­cure a quo­rum and elect a speaker. That's an­other open­ing for a con­sti­tu­tional mess.

The act­ing pres­i­dent serves un­til the House is able to elect a pres­i­dent. To elect a pres­i­dent, the 12th Amend­ment re­quires that the House vote by state, with each state hav­ing one vote; that a quo­rum be present con­sist­ing of mem­bers from two-thirds of the states; and that the ma­jor­ity of all the states shall be nec­es­sary to choose a pres­i­dent.

De­tails will mat­ter. Congress needs to pre­pare, now. Hope­fully, Congress rec­og­nizes that elec­tions are for cit­i­zens to choose their lead­ers, not for politi­cians to gain ad­van­tage from chaos.

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