Aug.12

electoral-vote.com

Dem 51

   

GOP 49

Trump Is Now Claiming Harris' Nomination is Unconstitutional

Donald Trump is scared. His internal polls are no doubt showing the same thing as the public polls (see above graph). He knows all too well that if he loses the election, his criminal trials will eventually happen, he will probably be convicted on at least some of the charges, and he will rot in prison for the rest of his life. Maybe Ivanka will come visit him on his birthday if he is imprisoned close by in southern Florida, where she lives, but probably everyone else will move on and in 5 years he will simply become a historical footnote, like Millard Fillmore. That is not something he is looking forward to, so he is determined to win, no matter what it takes.

What it takes includes, among other things, using the courts and cheating any way he can. In particular, he is already claiming that Kamala Harris' nomination is "unconstitutional" because she didn't win any primaries. This ignores a couple of things. First, the parties can nominate their candidates any way they want to. Before 1960, only a handful of states held primaries. The nominees were chosen by party bosses in smoke-filled rooms. There is no constitutional provision that parties have to hold primaries. In 1960, only 14 states held primaries. Go a few decades prior to that, and the number is half that. Go a few more decades back, to 1900 or so, and it's zero.

Second, when states hold primaries, no candidates are elected. The primaries are held to elect delegates to the national conventions. In some states, the delegates are required to vote for the candidate they supported on the first ballot, provided that the candidate is alive and still running when the first ballot is held. If those conditions do not hold, the delegates all become free agents. There is nothing in the Constitution telling them what they can or cannot do. Trump's claim is nonsense and he presumably knows that.

So why is he making an obviously false claim? He is clearly preparing a court challenge if Harris wins. That argument, that somehow Harris' nomination was constitutionally flawed, so she can't be president, is nonsense. All that matters is who the 538 presidential electors vote for on December 17, 2024. If 270 of them go rogue and vote for, say, Taylor Swift, she would become president (coincidentally having met the constitutional qualifications just 4 days earlier, as her 35th birthday is on December 13th of this year). In 15 states, faithless electors can be replaced. In some others, the false electoral vote would count but the faithless elector might be subject to a small fine. In 16 states, the electors can vote for the candidate of their own choosing with no penalty for doing so. In any event, if Harris is the Democratic nominee, and if she wins the Electoral College vote, there will be nothing unconstitutional about it. Trump's argument that Harris' nomination's somehow flawed is just intended to make his supporters think he has a good case if he sues to have the election overturned. His supporters can be bamboozled easily, but judges can't be. Even the nutty judges, like Trevor McFadden or Neomi Rao, are not going to declare that political parties don't have a right to nominate the candidate of their choice.

A second front in Trump's potential war to steal the election in broad daylight is the certification process. Over 70 county election officials are election deniers. Of these, 22 have already refused or delayed certifying one or more past elections where they didn't like who won. In most states, the secretary of state cannot certify the statewide election results until all the counties have certified theirs, so failure to certify can hold up state certification. If there is no certified winner by some deadline, the governor can't sign the certificate of ascertainment, which says who the electors are. That would throw the election into chaos and might open the gates for the state legislature to appoint the electors, something Trump and the Supreme Court might approve. But this is a longshot; it is likely that the secretaries of state would file lawsuits with lightning speed, and that the courts would fast-track them and tell the recalcitrant election officials to do their jobs or go to prison. We already had one example of this in Arizona in 2020, and judges in 2024 are likely to be even less friendly to election deniers, given how openly Trump & Co. are talking about their plans, weeks and weeks before any actual ballots have actually been cast.

These various Hail Mary passes, which are various levels of desperate, are part of Trump's strategy of creating FUD (Fear, Uncertainty, and Doubt) if he loses. Democrats are aware of all this and have lawyers ready to go to court. One thing the Democrats have going for them is that in Arizona, Michigan, Minnesota, North Carolina, and Wisconsin, the Democrats control the election machinery, and in Nevada and Pennsylvania it is mixed control. Only in Georgia and New Hampshire do Republicans run the show, and the officials there are the least Trumpy of all. In fact, Gov. Brian Kemp (R-GA) despises Trump and Georgia Sec. of State Brad Raffensperger (R) got into a pi**ing match with Trump in 2020. Here is the full list of the relevant officials in the swingiest states:

At the end of the day, it is the governor who has to sign the certificate of ascertainment. If some county balks but the governor signs it anyway, it probably counts because the Electoral College Reform Act of 2022 says that the certificate is valid if the governor signs it. There is no provision in the Act giving counties a veto over the governor. Nevertheless, if Trump loses, expect him to fight tooth and nail to somehow overturn the election—again. Only this time, the Democrats are prepared for a knife fight. (V)