Is Justice Alito’s Date Switch Intended to Head-Off a Constitutional Confrontation With the House?
In response to the link above:
After all, the entire purpose of this constitutional process is not, nor should be, to simply go through bureaucratic steps if there are real issues and concerns about electors. The process puts Congress as a final check on a presidential/vice presidential election. In the end, if the Supreme Court were to issue an injunction, or if the Court simply ruled on the constitutional issues and left it to Congress to determine the next step, the PA electors would be tainted, and Congress would decide on January 6 what to do about it. If the PA governor and secretary of state were to defy a Supreme Court injunction that, too, would wind up in Congress as an issue to address. The new Congress would have a majority of Democrats in the House (albeit a very narrow majority), and the Senate would have, at worst from my perspective, a 50-50 split in party affiliation. That said, who would still be the president pro-temp of the Senate? Mike Pence, the sitting vice president. Now, speculation is just that, and I am reacting to this post at Red State, the anonymous person’s third or fourth, but the House ultimately would select the president IF the matter could come up for a vote of the delegations. Although a majority of the delegations would be Republican (1 vote per delegation), the question is how to get past a majority of the House to get to a vote of the delegations.
Also, if the Court were to send the matter back to the state legislature (which is out of session, but presumably would have to come back into session or live with the consequences — including the eventual exclusion of PA’s electors, etc.), then again, it has thrown the matter back to the political branch that knowingly created the problem in the first place. How that would be resolved, we cannot know. But it is certainly an option. In short, if the PA legislature cannot act in a timely and constitutional matter, it’s on them.
None of this matters for the moment. My concern is if the Supreme Court does NOT properly resolve the constitutional issue, then the lid is off for states to do anything they want to influence the outcome of choice of electors. Article II’s plenary power will now mean all power, including brazenly unlawful act. Perhaps if the state legislature were to pass a law that said only Democrats could be electors, that might pass muster. Where will the line be drawn if not here and now? If a state legislature, a state supreme court, and the executive, all participate in various forms of unconstitutional conduct for the purpose of selecting electors in a wholly federal process of selecting a president and vice president, the damage to the integrity, validity, and lawfulness of the entire process is gravely affected. That’s the problem few are focusing on.