Mail-in Balloting, the 12th Amendment and Impending Doom

Letters to the editor: On vote-by-mail

            More than 80 million Americans are expected to cast mail-in ballots this fall, representing a 16-fold increase over 2016.

            This is probably going to cause a constitutional crisis of epic proportions.

            The problem isn’t the possibility of fraud that Donald Trump has been going on about. Cases of possible double voting or voting on behalf of dead people Daley-machine-style are statistically insignificant, amounting to at most 0.0025% of mail-in votes.

            The real issue is that the ballots may not be counted on time, triggering the insanity of the 12th Amendment to the U.S. Constitution.

            The date to remember is December 14th, when the delegations of the Electoral College meet in their respective states. That’s a hard deadline. Each delegation can only certify their state’s vote counts if they are 100% complete—machine votes cast in person at polling places on election day, early votes, absentee ballots, write-ins and, this year, COVID-19 mail-in ballots. If the state fails to certify on time, its electoral college votes aren’t counted.

            Within each state, there is a canvassing/certification deadline for county officials to submit their results. Most are in late November. California, with a December 11th deadline, cuts it close and usually files its national certification last.

            State election officials are doing their best to meet the challenge. They are hiring additional staff, buying new tabulation machines and installing drop boxes. Even assuming that they will be able to hire the additional personnel they need in the midst of the coronavirus pandemic, the practical impediments to meeting the December 14th deadline are daunting. Mail-in ballots are manually opened and signatures must be visually compared, sometimes several times, to Board of Election records.

Then there are technicalities. For example, 16 states require mail-in ballots to be submitted with an extra “privacy envelope.” In the battleground state of Pennsylvania, 6.4% of absentee ballots submitted in a 2019 election were rejected because voters neglected to insert their ballot inside the privacy envelope inside the mailing envelope—a significant margin that could change the outcome on a national level. Both parties are gearing up for legal challenges about issues like this across the nation.

“Every absentee or mailed ballot, even if dropped off directly at the designated county drop box or polling center, most likely will not get counted on Election Day, and it can easily be challenged and delayed and even rejected on a technicality,” Jed Shugerman writes at Time. “Every mailed or absentee ballot, in an envelope with signatures, is its own hanging chad, its own built-in legal delay.”

            If enough states are embroiled in vote-counting controversies to prevent either President Trump or former Vice President Biden from achieving the 270 electoral votes required to declare them president-elect on December 14th, the obscure 12th Amendment kicks in.

            Used only once—in 1825 to elect John Quincy Adams—the 12th Amendment triggers a bizarre “House of Cards” series of remedies guaranteed to eliminate any remaining belief that the Framers wrote a perfect document designed to withstand the test of time, or that the United States is a democracy.

            After the new 117th Congress convenes on January 3rd, the House of Representatives would vote to elect the president and the Senate would elect the vice president. “Each state delegation gets one vote, and 26 votes are required to win [out of 50 states],” reports the Associated Press. “In the Senate…each senator gets a vote, with 51 votes [out of 100 seats] required to win.”

            Even if Democrats enjoy another “blue wave” election that allows them to pick up congressional seats, they will not capture 26 state delegations in the House of Representatives. Trump would win. If Democrats have taken back the Senate, they could select a vice president to replace Mike Pence.

            It wouldn’t matter if a newspaper recount were to determine later on that Biden should have won both a popular and electoral vote landslide. Trump would remain in the White House.

            The Democratic Party and its allies in the media have been pushing mail-in balloting, but voters who want to see Joe Biden elected and are willing to brave the health risks should consider showing up for early in-person voting. In-person ballots are far less susceptible to rejection over technical issues like security envelopes, they are counted immediately and they thus meet the December 14th deadline for certification.

            As my readers are aware, I do not support either Trump or Biden and will be voting third party, probably for the Greens, this fall. But I don’t support disenfranchisement either. I want everyone’s will to be expressed.

            No matter what happens, no matter who wins, American politics are about to become extremely dangerous. Democracy fails when the losing side refuses to accept the legitimacy of the winning side. That will certainly be the case this year.

(Ted Rall (Twitter: @tedrall), the political cartoonist, columnist and graphic novelist, is the author of the biography “Political Suicide: The Fight for the Soul of the Democratic Party.” You can support Ted’s hard-hitting political cartoons and columns and see his work first by sponsoring his work on Patreon.)


8 thoughts on “Mail-in Balloting, the 12th Amendment and Impending Doom

  1. Jackalope’s comment sums it up perfectly.

    Trump has a winning game plan. Whodathunkit? A New York City tenement owner figured out a way to game the system so he could skirt all the rules? T-T-That’s unpossible.

    Pennsylvania isn’t the only bottleneck though. Even California could be a problem. (Wouldn’t the irony be perfect? Pelosi’s own inability to do things handed Trump the White House.)

  2. Well, Ted, when you put it that way, it looks as if we shan’t have to wait until 2050 for the climate apocalypse to hit us – you people in the US, in your typically impatient manner, want to advance Armageddon by 30 years with a civil war powered by thermonuclear weapons.. OK by me, I was gettting tired of waiting, anyway….


  3. Pingback: Have Coffee Will Write » Blog Archive » WE’RE ALL CONSTITUTIONAL SCHOLARS NOW…

  4. Just to add to the impending doom list, refer to the US Constitution, Article II section 1, method of election of the president:

    “The executive Power shall be vested in a President of the United States of America. He (sic) shall hold his (sic) Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:
    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.”

    So ultimately each state legislature shall appoint, in such manner as it may direct, its allotted electors of the Electoral College. There is NO constitutional connection between popular vote and college electors. Note The GOP controls the legislatures of 29 states and, I read, (I forget where) that includes 6 of 7 swing states.

    • Now, now, falco, the masculine pronouns of Article II, Section 1 have long been superseded by a less prescriptive «the person» in the Twelft Amendment. Of course, this begs the question as to the qualifications for personhood…. 😉


      • Hi Henri,

        I’d be happy to clarify the issue of US “personhood.”

        Although all US persons are equal, some persons are more equal than others. The most equal (and most revered) are those born at the moment of issuance of their corporate articles of incorporation, preferably by the state of Delaware … that, coincidentally, the home state of Joe “shoot ’em in the legs” Biden.

        These superior persons are allowed to own slaves … civil war, Reconstruction and Civil Rights Act, aside. But rest assured, the total number of slaves permitted is severely limited compared to what it was at the writing and ratification of the constitution.

        Now the only slaves allowed are merely the 535 members of congress, members of the federal judiciary and only the highest posts in the executive branch but it is an absolute requirement for cabinet members and above. (This is not even 1500 slaves. I’d call THAT “progress”!!!)

        The president and vice president are the highest ranking slaves and preferred nominees for these positions have served as CEOs of one, or more, of corporate persons and have amassed financial assets worth $$$billions, with the qualification limit rising 50% for each election cycle.

        The theory here is that if a nominees for the highest posts cannot demonstrate their servitude to naked greed, then they simply are not fit to be the titular head (and vice head) of our great and exceptional monument to kkkosmic avarice.

        (Note: State rules in this area are similar to the federal system but vary according to the specific direction of the individual [kkkorporate-owned] state legislatures.)

  5. AFAIK, no president has ever challenged the presidential election (of course, members of both parties have challenged some state elections for Electors in their own states). Trump was the first person I’ve ever heard of who won an election and then challenged it.
    They want Trump to promise not to contest the election, but he refused to make that promise, and they’re saying he’s another Godwin. Of course, he has every right to contest the election, and the Supreme Court has the power to declare the election for whomever it wants, but if there is clear evidence that Biden won a majority of the Electors, the Supreme Court will confirm his win, and Trump will pack his bags and leave on Jan 20.
    But the Democrats reiterate that, in comparison, Godwin seems like a better leader than Trump.

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