RUSH: Now to this Hill story. “No, Biden Hasn’t Won Yet — There is One More Nightmare Scenario.” Let me run through this for you, folks. Everybody thinks that with the Supreme Court’s rejection of the Texas lawsuit that it’s over. Right? Well, maybe not. “Trump has one more card to play, depending on whether Republicans in Congress are more loyal to Trump than they are to the country.”
Now, you gotta remember, this is TheHill.com, and of course it’s gonna have its share of snark as they report the story. So it is depending on whether Republicans are more loyal to Trump than they are to the country. So they set up a false straw dog that if you support Trump, you are automatically disloyal to the country. I mean, it’s absurd. But such is the hatred for this guy. The hatred for Donald Trump shows no signs of abating. Trump could become invisible, which isn’t gonna happen. Even if he became invisible, even if he just vanished from the public scene, their hatred for this guy will not go away and it’s gonna continue to dominate them and govern much of their behavior.
So, here’s the deal. “After the electoral votes are cast, they have to be accepted by Congress.” The electoral votes were cast on December 14th. “By law, the House and Senate meet together on Jan. 6, and if any state’s ballots are challenged by one member of the House and Senate, the chambers must meet separately and vote on the challenge. Given that 126 members of Congress signed on to the Texas lawsuit to overturn Joe Biden’s victory, and that many GOP senators have not accepted Biden as the president-elect, some states are going to be challenged.” There’s not 120 senators. There’s an error in the way this is written.
Let me read this paragraph. “Given that 126 members of Congress signed on to the Texas lawsuit to overturn Joe Biden’s victory, and that many –” not that many, as in equaling 126, and that a lot of Republican “senators have not accepted Biden as the president-elect, some states are going to be challenged. Here’s where things get interesting. The controlling federal law, the Electoral Count Act (ECA), is more than 100 years old, opaque and has never been fully used.” And TheHill.com says here, “It may not even be constitutional.”
“The Congress over which the old vice president will be presiding will be the new one, sworn in Jan. 3. The new House, narrowly Democratic, will vote down any challenge. But the Senate? Something very different could occur,” because the Republicans… We don’t know yet, but they are still gonna control the Senate on this date. So, let’s play.
“Let’s suppose that the balance is 52-48 Republican. But Sens. Mitt Romney, Ben Sasse, Susan Collins and Lisa Murkowski have said that Biden won, so Biden wins in a close vote, right? And even if the Senate votes to uphold the challenges, the ECA has a tiebreaking provision — any slate of electors that is certified by their state’s governor will be accepted if the House and Senate disagree.
“Biden, again, would win. Thus, the New York Times assumes that Republican challenges to the electoral votes would be futile. But what if the Senate never finishes voting? The ECA limits each challenge to no more than two hours of debate. Four states were questioned in the lawsuit (Georgia, Wisconsin, Michigan and Pennsylvania),” their practices were questioned, “making four challenges and eight hours of delay.
“Even in the Senate, eight hours of debate can’t last more than a couple days, can it? The law envisions the ability to challenge electoral votes collectively or individually.” So somebody like Ted Cruz could come along and “would challenge, not each state, but each electoral vote separately. And as a delaying tactic, why wouldn’t the Trumpers challenge every Biden state, even Delaware?
“The goal [here in this procedure] is not to win, the goal is to delay, to prevent the ‘tiebreaking’ provision of the ECA from happening. Remember, the presiding officer under the ECA is Mike Pence. He can be expected to interpret the rules in a way highly favorable to the Republicans.” Look, all of this is a real, real long shot, but I’m just pointing out that we’re worried about it in the Senate.
McConnell is worried that somebody in the Republican Party is going to try to trigger this and hope for a long shot of upsetting the applecart and preventing Biden from being selected by the Electoral College. Pence “can be expected to interpret the rules in a way highly favorable to the Republicans. He can help the GOP delay any resolution until about January 18.”
Now, I know this is confusing, and it’s largely confusing because journalism is in such woeful state right now, people writing about these things have a tough time explaining them. But the Electoral Count Act — which I very, very brilliantly just described — is what Republican Trump supporters in three states have elected alternative electors for. That’s why this happened. That’s why they elected an alternative slate of electors, because of this, the Electoral Count Act.
They were all thinking forward about how maybe they could put one more maneuver into play. “Now comes the endgame maneuver. The Constitution specifies that if there is no Electoral College winner, the Senate chooses the vice president and the House picks the president.” All of this came up, by the way, in Bush v. Gore in 2000. I don’t expect a lot of people to remember it, but it did ’cause the Constitution was the same then as it is now.
So under this “endgame maneuver … The Senate, claiming that there is no Electoral College result, picks Pence,” as the vice president. “Overturning an election? Why not? The raw hatred and polarization in American politics have shown that no precedent or law is safe. Ask Merrick Garland.” Oh, these people at TheHill.com are just fit to be tied.
Now, “it won’t be a Biden-Pence administration. The Democratic majority in the House can’t pick Biden because when picking a president, the House votes by state delegation, and the Republicans control more House delegations.” This could result in Trump being elected president if they pull this off because there are more Republican state delegations.
It’s not a matter that the Democrats control the House. It’s the fact that there are more Republican state delegations, and that’s how the vote is, because it’s all relative to the Electoral College. Now, TheHill.com says here, “The House Democrats will never let that vote happen…”
If that’s the case — if everything else that I’ve described happens but there is not a final vote (chuckling) — it “means we won’t have a president. If we don’t have a president by noon on Jan. 20, the law of presidential succession comes into play. “But who is next in line of succession? Republicans will claim that the presidency is empty, but the Senate did its job and picked Pence as vice president.
“The Democrats will say the whole process was illegal and unconstitutional, and that the next in line is therefore … Pelosi. Stalemate.” This would be the stalemate of all stalemates. “An empty presidency at noon on Jan. 20, with Trump tweeting that it should remain his, Democrats saying Pelosi or Biden and some Republicans secretly hoping it’s Pence. And if you’re thinking that the Supreme Court would save Biden, think again.
“It would probably rule the question to be a political one, and therefore nonjusticiable,” meaning they wouldn’t have standing to look at it anyway. “There isn’t a clear constitutional principle or law that the court could apply.” That takes us to the next story, the headline of which is (let me get to the next page): “McConnell Urges GOP Senators Not to Object to Electoral College Vote.”
Oh, yeah, because it’s said to be a guaranteed failure anyway. (summarized) “This is going nowhere. There is no hope for this. Don’t any of you guys do it. No Republicans. Don’t fall for this. Don’t try it.” They’re really worried about the scenario actually falling or coming into play.
RUSH: I’m gonna run through the scenario again, because I realize that, you know, I read much of that verbatim as it was published by TheHill.com, and some of it was disjointed. And I imagine a lot of you were confused, especially because there is a countertheory to this. And the countertheory is that that the scenario described by TheHill.com cannot happen and would not happen because:
On January 6th, when Congress meets to record the votes of the Electoral College, any state’s electoral votes could be challenged if one member of the House and one member of the Senate object. If that happens, then each chamber, House and Senate, would debate for two hours, then hold a floor vote on whether to accept the electoral votes or not.
If the two chambers deadlock — with the House voting “yes;” the Senate voting “no” — then this theory says that the results certified by the governor of that state, whichever state we’re talking about here, would become the tiebreaker. Which, according to the countertheory here, means that there is no way to block Biden’s victory.
That’s an answer to TheHill.com’s scenario where they spell out how — if things happen to force a vote in the House on who the president will be — the number of delegations in the House matters, since the House will vote by delegation, not by straight membership number. The Democrats control the House.
But they do not have as many delegations as the Republicans do. So voting by delegation the Republicans would then control the House and any vote there. But this countertheory says that the tiebreaker would go to the governor, the results certified by the governor of the state whose electoral votes are being challenged here. So in the case of Georgia — which is one of the states that alternate slate of electors was elected.
Since Kemp has certified Biden the winner, then there’s nothing anybody can do to stop it in this scenario. So while it’s confusing — and it is a really, really, really long shot — let me still run through the scenario again and the competing scenarios, which try to say that this isn’t possible. But McConnell and Thune are begging Republican senators not to do this so it…
RUSH: Now, if you think that challenging the Electoral College votes when they have to be formally tallied by the Congress, if you think it’s unprecedented, let me remind you that 11 times the Democrats challenged the 2016 electoral vote count. It was interrupted 11 times. You have forgotten. Hillary Clinton was in there trying to maneuver the Electoral College out of existence. They were trying to do all kinds of things to invalidate the Electoral College.
Eleven times Biden was interrupted during the electoral vote count. He was the sitting vice president at the time, “presided over a joint session of Congress Friday, where members officially tallied electoral votes from the 2016 presidential election. … During the course of the certification,” which is what the vote is, “House Democrats tried to object to electoral votes from multiples states, with Biden gaveling them down for failure to follow the rules. Objections to the votes needed to be in writing and signed by both a member of the House and a member of the Senate. Every House member who rose to object did so without a senator’s signature.” They were just trying to flummox the entire process.
“Rep. Jim McGovern of Massachusetts rose to object to the certificate from Alabama. … Rep. Jamie Raskin of Maryland rose to object to 10 of Florida’s 29 electoral votes. … No sooner had the Florida question been settled than its neighbor to the north was the subject of another objection, when Washington’s Rep. Pramila Jayapal objected to Georgia’s vote certificate.” It went on and on 11 separate times. So don’t think that if the Republicans do this, that it’s somehow unprecedented.
Here’s another thing. I’m not sure this is exactly right, but it’s close. I think it is the Republicans control 36 delegations in the House of Representative and the Democrats 14. It’s something close to that. And again it’s an illustration of why the Electoral College is so brilliant. Because the California delegation is huge in terms of numbers of people, and the New York delegation is huge in terms of the number of members. But the number of members is not the factor. The number of delegations is the factor.
The House votes by delegation, not by individual member, in this scenario. So the Republicans vastly outnumber the Democrats in terms of numbers of delegations. It would be a slam dunk vote, if it got that far. And, remember, the Democrats objected early, they objected often to the Electoral College vote in 2016. I mean, Maxine Waters and Barbara Lee objected 11 times claiming the election was stolen by the Russians. And these Democrats are still out trying to make that claim.
So let me run through this, this scenario one more time as I just get to the basics of it. Here again, by law, the House and Senate will meet together on January 6th to officially record the Electoral College vote. If any state’s Electoral College ballots are challenged by one member of the House, one member of the Senate; so if somebody wants to challenge the Georgia vote, if somebody wants to challenge the Pennsylvania vote, all they gotta do is get one senator and one member of the House to record the objection, the challenge.
If that happens, everything stops, and the House and Senate then meet separately and vote on the challenge. Now, 126 members of Congress signed on to the Texas lawsuit to overturn Biden’s victory. And a lot of Republican senators have not accepted Biden as the president-elect. So some states are gonna be challenged, so goes the theory. That takes us to the Electoral Count Act, the ECA. It’s more than a hundred years old. It’s never been fully used.
So let’s get a scenario here. Let’s suppose the balance is 52-48 Republican. But let’s say that Romney, Ben Sasse, Susan Collins, Lisa Murkowski have said that Biden won. So Biden wins in a close vote. And even if the Senate votes to uphold the challenges, the ECA has a tie-breaking provision, and this would trigger if these four things have, these four Republican senators vote with Democrats that would trigger the tiebreaker provision, any slate of electors that is certified by their state’s governor will be accepted if the House and Senate disagree.
That brings the governor into play as a tiebreaker. One of the scenarios in opposition to this is that Governor Kemp in Georgia could totally put the kibosh on this by simply using the electoral count that he certified as the tiebreaker. But there are other states where this could work and could happen. So the key is delay. The key is to make sure that nothing final ever happens. So what happens if the Senate never finishes voting?
The Electoral Count Act limits each challenge to no more than two hours of debate. Now, four states were questioned in the lawsuit, the Texas suit. That’s Georgia, Wisconsin, Michigan, and Pennsylvania. That makes four challenges, two hours of debate each equals eight hours of debate, slash, delay, even in the Senate. Eight hours of debate can’t last more than a couple days, can it? It can last as long as anybody wants it to.
Now, the law envisions the ability to challenge electoral votes collectively or individually. So you can have Ted Cruz, who would challenge not every state, but each electoral vote separately as a delaying tactic. Why wouldn’t Trump supporters challenge every Biden state, even Delaware, if the objective here is delay?
See, the goal here is not to win in this particular procedure at this stage. The goal is to delay, to prevent the tie-breaking provision from the ECA from happening. And again the tie-breaking provision is the governor. And to repeat this, if the House and Senate deadlock with the House voting “yes,” the Senate voting “no” on the certification of the Electoral College votes from a particular state, then the results certified by the governor of that state become the tiebreaker. That’s what is hopefully prevented. Keep it from getting to that phase, getting it to the governor, in this case Kemp in Georgia providing the tiebreaker.
The presiding officer under the Electoral Count Act is Mike Pence, ’cause he’s vice president. He’d be expected to interpret the rules in a way highly favorable to Republicans. He can help the Republicans delay any resolution until January 18th if he wants. So “Now comes the endgame maneuver. The Constitution specifies that if there is no Electoral College winner,” which is the objective here, “the Senate chooses the vice president and the House picks the president. The Senate, claiming that there is no Electoral College result,” because we haven’t certified, we can’t get them certified, there’s too much going on here, they would pick Pence. Pence would be the vice president.
But the House would not vote for Biden because the Democrats do not control the number of delegations in the House. The Republicans do. And the House vote would be by delegation, not by how many Republicans or Democrats total there are in the House. The Democrat majority in the House cannot pick Biden because when picking a president, according to these rules, the House would vote by state delegation, and the Republicans control more House delegations.
“But who is next in line of succession? Republicans will claim that the presidency is empty, but the Senate did its job and picked Pence as vice president. The Democrats will say the whole process was illegal and unconstitutional, and that the next in line is therefore the House Speaker, presumably Nancy Pelosi. Stalemate. An empty presidency at noon on Jan. 20th.”
Look, this is a real long shot, but you’re gonna see a lot of talk about it, and I want you to try to have a base understanding of what this is as you hear it discussed elsewhere on cable news and wherever. So “empty presidency at noon on Jan. 20, with Trump tweeting that it should remain his, Democrats saying Pelosi or Biden and some Republicans secretly hoping it’s Pence. And if you’re thinking that the Supreme Court would save Biden, think again. It would probably rule the question to be a political one,” and not want any part of it and not touch it, although that’s a long shot too. I think the Supreme Court is so invested in Democrats controlling things and the deep state being put back in power that the assumption that the Supreme Court would not want to touch this is a long shot.
At any rate, this is how you could end up with Trump being reelected president by the House of Representatives. That’s why the story, McConnell, Thune warn Senate GOP, please don’t object to any of the Electoral College results on January 6th. Don’t do this. Because why would they issue this warning? Is it that they’re afraid the party will look silly? How silly does the Republican Party already look.
Nah, they don’t want any hiccups on the road to Biden being officially elected by the Electoral College. And I just want to, again, stress it is a very, very, very long shot. But it is a possibility. And it’s still out there as a possibility. And I just wanted you to be as up to speed understanding it as you could be.
RUSH: You know, Vice President Biden tried to take Trump out using the Logan Act. That has not ever been done before. Nobody’s ever prosecuted anybody under the Logan Act. But Biden came up with the idea in that January 5th Oval Office meeting in 2017 with Obama, where they plotted the strategy to get the Steele dossier in the news the next day by having Comey tell Trump about it in a meeting at Trump Tower.
It was Biden who suggested that they try to take Trump out, disqualify him as president using the Logan Act. So why shouldn’t the Republicans use some little- or never-used, long-shot law like the Electoral Count Act to take down Biden? Fair is fair, is it not? Biden tried to take Trump out using the Logan Act. It’s never been used. It may not even be constitutional.
So it’s a little tit-for-tat here. Yeah. We’ll take Biden out using the Electoral Count Act and maneuver things into a delay and delay and delay ’til finally there has to be a vote in the House by a delegation on who the president is…? I’m just asking. I’m not suggesting. I’m not. No, no, no, no, no — and, by the way, there’s some guy in Texas that just passed a secession law, and he didn’t call me about it, so I didn’t know anything.
(interruption) What? (interruption) What? I don’t think what’s a good idea? (interruption) Oh. Well, here’s the thing. There is a movement throughout the blogosphere… No, I can’t say throughout the blogosphere. There is a movement in the mainstream Republican Party to shame Republicans in the Senate from not doing this, under the premise that it’s such a long shot.
“It can’t happen, there is no way, and the only reason you Republicans would do it would be to ingratiate yourself with the base, and that is a mistake. Don’t do it. You Republicans constantly shoot yourselves in the foot.” Meanwhile, if you go back to 2016, the Democrats used this attempt 11 times. They interrupted the Electoral College vote 11 times, and they didn’t pay a price.
In fact, when the media was reporting on this, they talked about, “Wow, what if the Democrats pull this off?” They were all excited! Now, I know the same kind of coverage will not happen if the same thing happens on January 6th with the Republicans invoking this procedure. But I’m just telling you there is an effort, and here’s “McConnell Warns Senate Republicans, ‘Please Don’t Object to Any of the Electoral College Results.”
Another headline: “McConnell urges Republican senators not to object to Electoral College Vote.” Why? The Republicans are always coming up with this strategy. “Let’s not upset the applecart. Let’s show the left that we’re responsible. Let’s show the media that we’re okay, that we’re not frivolous. Let’s demonstrate that we’re not who they think we are.” It never works.
Let me grab a call here before the hour ends. This is Mack in Las Vegas. Glad you called. Welcome to the program, Mack. Hi.
CALLER: Thanks, Rush. Major mega dittos from a Rush Baby that’s been listening since 1990 when he was a freshman in high school.
RUSH: You’re almost a lifer. I appreciate that.
CALLER: You know, we’re praying for you — and your family as well, too, my family is. I gotta say as much as I want President Trump to remain in office, I gotta go with Senator McConnell on this one and that’s because there’s already such a civic ignorance about the Electorial (sic) College that if this were to happen, if Republicans were to do this, then it would create such confusion.
And there’s a movement to abolish the Electorial College right now, and this would give them the fodder that they need as a rallying cry to say, “Look how bad the Electorial College is. The Republicans used it to steal the election,” and it would be a very big push to abolish the Electorial College when we need it, and I feel like it would be sacrificing the war to win a battle today.
RUSH: Okay. Well, I’ll have to take your comments under advisement the “Electorial” College because I’m out of time to respond now. So I will reserve my response for when I have more time on the “Electorial” College.
RUSH: You know, I think anything that educates people on the brilliance of the “Electorial”… the “Elecorial”… Sorry, “Elecorial.” The “Electorial” College. Anything that educates people on that — as opposed to the Electoral College, the “Electorial” College. If we can educate people on that, then I say, “Why not?”
RUSH: Let me officially answer our last caller and our first caller of the day who’s afraid that if this Electoral Count Act is used to thwart Biden’s election by the Electoral College… Our caller was afraid that doing this would just facilitate the Democrats desire to get rid of the “Electorial” College. The Democrats don’t want to get rid of the “Electorial” College now, folks.
Since they won — since they think Biden won — they don’t want to get rid of it. Now, the idea that this might motivate them to get rid of it? Nah. Don’t think so. I really do fall down on it this way — or come down on it this way. I’m all for educating people. I think there is such a lack of understanding about the Electoral College anyway, that I’m for anything that would further educate people on how it works and how brilliant it is.
Do you realize having the House in this scenario that utilizes the Electoral Count Act…? Folks, it’s a long shot. I don’t want to create a false sense here. It’s a vast long shot. But that is also illustrative of the brilliance of the Founding Fathers in creating the Electoral College. The Electoral College was created to avoid the direct democracy of electing the president.
They’d get rid of the popular vote, because they knew that population centers would be vastly different in size. And they had to find a way to equalize that. It’s as though they knew in advance that California and New York would be vastly more populated than many other states. And if the election of the president was determined by the popular vote alone, then heavily populated areas would determine who the president is.
And the way they were thinking is, “Why should two or three states determine the president every election? That’s not fair.” So they came up with the Electoral College, and they appointed a number of electors per state based on the size of that state’s congressional delegation, and that ended up eliminating the popular vote advantage of populous states.
It was brilliant in its conception, as is the Electoral Count Act, in the case of the House electing the president and the Senate electing the vice president. In terms of the House, they determined that the vote would be by delegation, which is a continuation of the same theory utilized in the creation of the Electoral College. It eliminates the population centers from having an unfair, outsized advantage.
So in the case of the House electing the president, should that scenario ever happen, the vote in the House is by delegation, not by individual members. Now, the Democrats control the House, and even after the new House is sworn in despite the Republican gains, they will still control the House. But the vote would be by virtue of delegation. The Republicans…
Have you seen the county map of the country after a presidential election? It’s 99% red, 95% red. But there you got blue in New York, you got blue in California, you got blue along the border in Texas. But the number of counties that are red dwarfs the number of counties that are blue. But the populous counties that are blue outnumber, in some scenarios, the vast number of counties that are red.
So the Electoral College and the Electoral Count Act both suffice to equalize the unfair advantage that populated, highly populated areas have. And anything that educates people how this works is good in my book. So that’s that. I think that the Republicans who oppose this, they just want to maintain their positions in the establishment, and they’re probably gonna end up prevailing.
But it is a long shot. I want to remind you, though, of another effort that was made to undermine the “Electorial” College back in 2016. Does the name Lessig, Larry Lessig ring a bell? “Larry Lessig, a Harvard University constitutional law professor who made a brief run for the 2016 Democratic presidential nomination…” He bombed, obviously.
But back on December 13, 2016, four years ago, Larry Lessig “claimed Tuesday that 20 Republican members of the Electoral College are considering voting against Donald Trump,” had that happened, “that would put anti-Trump activists more than halfway toward stalling Trump’s election.” He was lying through his teeth. It wasn’t the case, but he’s out there saying it and the media is out there reporting it.
Larry Lessig even had a name for this group. It was called “‘Electors Trust,’ [and he was] offering pro bono legal counsel to Republican presidential electors considering ditching Trump and has been acting as a clearinghouse for electors to privately communicate their intentions.” This guy was trying to sabotage the Electoral College himself.
That’s why you remember the name, Mr. Snerdley, and he claimed by December 13th, that he had found 20 Trump electors that were gonna flip. But he “provided no evidence to back up his claim.” He said “his group has heard from 20 Republicans open to breaking with Trump.” But if you recall when it came time to actually count the votes at the Electoral College, none of this happened. None of the Democrats’ claims happened.
The Electoral College persevered, it triumphed, and it probably is going to be the same circumstance, the same thing this time. I just wanted to share with you the scenario that remains, the one remaining scenario that could thwart the election of Plugs. As I say, folks, it’s a tremendous long shot.
And the people that run the Senate on the Republican side want no part of it, because they want no part of it — and since they run the Senate — they’ve got all kinds of options available to them to thwart an effort like this. So just to keep a sharp eye. I wanted you to know what’s going on so that when it’s discussed, you’ll have a baseline understanding.