Until the 2020 election, the Republican strategy for obtaining Presidential power with a minority of the popular vote was focused on winning the Electoral College by focusing on a few “swing”states. However in the 2020 election, when this strategy did not work, it became apparent that adopting a different strategy was required to maintain power as a minority.
Instead of relying on the Electoral College, their new approach has been to focus on the relatively unnoticed provisions in the Constitution that kick in if Congress has not “elected” a President before the time fixed for the beginning of the new term, or if the President elect shall have failed to qualify. In this case the House of Representatives chooses the President, not by the number of representatives but, with each state having (only) one vote!
The new Republican strategy appears to be that if they can create a delay in the Congressional acceptance of the certified results for President until after the time fixed for the beginning of the next term (currently January 20th) they can activate this provision of the Constitution and, rather than being proportional to the electorate, each state will only get one vote. What they are banking on is that the number of small population Republican states is greater than the number of large population Democratic states.
They don’t have to win the votes, they just have to tie up Congressional acceptance of the election results so no-one gets to 270 until after January 20 when they (believe they) only need 51 “House votes” to put Trump back in office. This was the strategy behind the “stolen election” rhetoric and the fraudulent electors scheme before and up to January 6, 2021, and of course the riot/insurrection on the day of. The whole purpose of the conspiracy was to delay the acceptance of the certified results long enough for these Constitutional provisions to be invoked by their co-conspirators in Congress.
While they failed on January 6, they did have a dry run, and this time they are using a different strategy for delaying the Congressional approval of the Electoral College votes. Over the past four years they have been trying to install MAGA “election deniers” into precinct (and where possible higher) election official roles. They are hoping that if these officials refuse to certify the results in their precincts, they can stop or confuse the official certification for their whole state. Some of these precinct officials have already “practiced” this approach in their states during intervening primary and state elections.
There are a number of reasons why this strategy may not work, but if the MAGA Republicans can push it far enough, the interpretation of Section1.3 in Article Two of the Constitution, the 12thand 20th Amendments, and 3 U.S. Code § 5 - Certificate of ascertainment of appointment of electors, may wind up for “interpretation” in the Supreme Court where a majority of justices have already demonstrated they are bought and paid for by their billionaire MAGA backers.
When it was written, the Constitutional provision for one-state-one-vote and its subsequent iterations all focused on legitimate (and believed to be rare) tie votes among serious participants. They did not anticipate parties intentionally trying to obstruct a legitimate result long enough for the exceptional remedy to kick in and override that result. 3 U.S. Code § 5 - Certificate of ascertainment of appointment of electors, and its subsequent amendments have attempted to make Congresses role ceremonial and to clarify the Electoral College certification process to make it less likely that the Congressional certification of the Electoral College votes could be manipulated to “overthrow” the legitimate vote. This code sets a deadline for the states to submit their officially certified results, makes the Governor in each state responsible for the official on time submissions, and provides for court ordered submissions when there are disputes or other obstructions.
Of course there also are federal and state criminal laws that can (and have been) applied ranging from election interference to fraud. While enforcement of these laws may deter some people, the hard core MAGA believers seem to be somewhat immune from fear of these sanctions.
It is important for the Democrats to be ready for the normal election interference court fights we can expect. However, in this election it also is important to proactively counter, and be ready to counter, the Republican’s ultimate goal – to delay certification long enough to invoke the one-state-one-vote provision. It also would be useful if the media started making the public aware of the one-state-one-vote threat and how this plays into the larger Republican strategy.
FOR MORE INFORMATION
Section 1.3 in Article Two of the Constitution:
“if no Person have a Majority... the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote;”
https://constitutionus.com/constitution/articles/article2/
This one-state-one-vote procedure was carried over in the 12thAmendment:
“But in choosing the President, the votes shall be taken by states,the representation from each state having one vote…
And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President.--”
https://constitutioncenter.org/the-constitution/amendments/amendment-xii
The 20th Amendment changed the March 4th deadline to the relative time of:
“before the time fixed for the beginning of his term,”
https://constitutioncenter.org/the-constitution/amendments/amendment-xii
The 3 U.S. Code § 5 - Certificate of ascertainment of appointment of electors: provided more detail on deadlines and responsibilities to force resolution of disputes and issues that might delay the Congressional certification of the results.
"Not later than the date that is 6 days before the time fixed for the meeting of the electors, the executive of each State shall issue a certificate of ascertainment of appointment of electors, under and in pursuance of the laws of such State providing for such appointment and ascertainment enacted prior to election day."
https://www.law.cornell.edu/uscode/text/3/5
Additional details on the various roles and responsibilities of the Electoral College process can be found here: https://www.archives.gov/electoral-college/roles
Also see:
https://www.citizensforethics.org/wp-content/uploads/2024/08/ElectionCertificationUnderThreat.pdf
