Maggie's Farm

the key to overturning a Trump victory at the ballot box is for the Democrats to win back control of Congress, the odds for which, even in the event of a Trump presidential win, must be assessed as at least even. If they do, then the stage is set for a Jan. 6 rerun, this time with the Democrats voting not to certify the Electoral College results.

. . . Should they vote not to certify the election that Trump had won, that would create a murky constitutional debate about what follows, but the effect would be the same as an Electoral College tie, addressed in the 12th Amendment, and would likely mean the election would be thrown to the House of Representatives for a decision.

There, each state delegation would have one vote to decide the presidency, something that has only happened after the 1800 and 1824 elections. The House would be limited in their choices to those who won Electoral College votes, but at that point, the result might be political chaos, since Electoral College members would have been free to vote as they liked.

There is also the possibility that the House wouldn’t be able to resolve the impasse before Jan. 21, when a president must be sworn in. In that case, the Senate would elect a vice president who would serve as president. There again, a Democratic majority could elect Biden or his running mate. But the wording of the 12th Amendment, which says that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States,” raises the possibility of them choosing someone who had not been on the ballot, such as fantasy league options like Michelle Obama. Like virtually everything that would happen once the existing system failed to produce a result, it would also mean subsequent court challenges to resolve the meaning of the text, which, like the Democrats’ attempt to use the 14th Amendment to stop Trump, is something the courts have never fully adjudicated.

This case has received relatively little media attention, but according to SCOTUSblog, it centers around whether the “First Amendment allows a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the government’s own hostility to the speaker’s viewpoint.”

Central to this case is a referral from the New York County District Attorney’s Office for the New York Department of Financial Services (NYDFS) to open an investigation into firearms-based insurance programs endorsed by the National Rifle Association (NRA). In 2018, three entities, which provided some of the insurance programs endorsed by the NRA, entered into consent decrees with the NYDFS for alleged violations of New York law. Following the 2018 Parkland, Florida, school shooting, Maria Vullo, former superintendent of the NYDFS, issued “guidance letters,” which recommended that financial services institutions consider the risks from working with firearms promoting entities like the NRA. Following Superintendent Vullo’s guidance, entities opted to end their relationship with the NRA. As expected, the NRA brought legal action against Superintendent Vullo and Governor Andrew Cuomo, as well as others.

. . . What makes this case so fascinating is that it exposes how the “deep state” or regulatory agencies inject politics into their statutorily limited roles.