Leslie McAdoo Gordon 🇺🇸 Profile picture
Oct 3, 2020 24 tweets 5 min read Read on X
You may have seen recently that Nancy Pelosi was campaigning in Michigan. She wasn't just doing that to support Joe Biden. The Democrats are preparing for a scenario in which the House of Representatives has to choose the President under the Constitution. /1
That could happen if the electoral college votes are tied 269 to 269 or if neither candidate receives 270 votes, which could in theory be the case if one or more states cannot get its electors together by the deadline in order to cast their votes. /2
In that situation, the House of Representatives chooses the President. But, it does NOT do so by each MEMBER of the House voting. It does so by each STATE casting one vote. So, to win, a candidate needs to get 26 or more of the states to vote for him. /3
Presumably to cast its one vote, the delegation from each state confers with it's own members & decides by majority vote which candidate to vote for. (There are no rules for that anywhere to my knowledge.) /4
So, for example, Washington state has 10 Members of Congress. They decide together how to vote Washington's one vote. In Washington, 7 members are Democratic & 3 are Republicans, so the Washington delegation would presumably vote for Joe Biden. /5
Thus, it's important to know what the split is between Republicans & Democrats for each state to see how each state would likely vote in this scenario. In one state, Michigan, there is also an Independent who might make a difference (Justin Amash). /6
And remember that the election on November 3, 2020 can/will change this. The Congress that would select the President is NOT the one sitting now, but the one that will be sworn in in January 2021. /7
But to see where the issues are, we can look at the current makeup of the current Congress. Right now, 25 states have at least 60% members who are Republican, 20 states have at least 60% members who are Democratic, and 5 states where neither party has 60% or more. /8
These are the 25 Republican states: /9
These are the 20 Democratic states: /10
These are only 5 states where the split is very close. Neither party has 60% or more in this 5 states. Florida leans Republican, Pennsylvania is even, Arizona & California lean Democratic, Michigan is even if Amash goes right or leans left if Amash leans left. /11
If today's Congress was voting, Florida is majority Republican (by one member), so Trump would have 26 states & win the Presidency. Joe Biden would have to get all 5 of these close states to vote for him & 1 of the Republican states. In the current Congress, Joe wouldn't win./12
Notice that Michigan is 50/50 if Justin Amash votes with Republicans, but is majority Democrat if he votes with them. So, the Michigan delegation would have to figure out what to do to cast it's vote if they are tied at 50/50. /13
Pennslyvania is also 50/50, so it would have the same problem as Michigan, while Arizona and Colorado are like Florida, they slightly lean toward one party (Democratic) - by one vote, so presumably would vote for Biden, but it's close. /14
So that's the current situation if today's Congress was voting on the issue, but the next Congress is who will vote, so unless there's a big change in states that have 60% majorities, these 5 states are critical for deciding the Presidency if the House must vote on it in Jan. /15
And the percentage split makes it look a little misleading, because while it's 52 to 48 Republican in Florida & 57 to 43 Democratic in Colorado, for example, in actuality that difference is only ONE seat. In theory, five seats in the House could decide the Presidency. /16
It also makes the seat Amash is vacating extremely important. If the Republican wins that seat, Michigan is 50/50, if a Democrat wins that seat, Michigan is 57% Democratic. /17
This is why they are pushing in Michigan & Pennsylvania -the 2 states effectively 50/50 now & Florida (R by 1 seat). If they can win by 1 seat in those states & hold their 1 seat leads in Arizona & Colorado the Dems have 25 states. Joe would need 1 more to win in a House vote./18
In the event that the states were to split 25 to 25 in the voting, they would have to keep voting until they break the tie. A quorum of 2/3 of the states are needed; each state is represented if at least one of its delegation is present; a majority of the states voting wins. /19
One can only imagine the horror that a tie 25 to 25 vote would be. There'd be lobbying (and who knows what else) against the delegations that have the slimmest majorities. Maybe delegations would have different rules for deciding their state's 1 vote. It could get very ugly. /20
Of course, if one of the candidates get a majority in the Electoral College (270 votes), we won't have to worry about any of this. /21
Makes it important to vote, folks. Every election, every race. /22
Another thing you could take away from this is that if you have some money to donate for races or a race, it might be wise to give it candidates in those 5 states who need help to hold their red seat or flip it red. /23

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More from @McAdooGordon

Apr 26
Bribery has always been private conduct.

Ruling impartially on a case is a judge’s official duty. Taking money to rule for one side is not. But notice that the judge doesn’t benefit from the ruling, but from the bribe. Same for public officials.
Similarly, where a public official does benefit directly and personally from their own official act, esp if that is not disclosed, we’ve deemed that a conflict of interest, which is also private conduct that invalidates the public act.
These private acts are entirely different from cases where a govt official receives no personal financial benefit but gets an indirect non-monetary benefit - popularity, future votes, legacy - and (like everyone else) may benefit from the substantive official act (eg tax cuts.)
Read 9 tweets
Apr 25
DJT SCOTUS case on immunity starting now.

Sauer arguing for DJT. Doing his opening statement now.
He's making the point that prosecuting POTUS after office undermines the POTUS while POTUS.
Thomas - source of immunity? Sauer - vesting clause.

Thomas - how?
Read 141 tweets
Apr 21
The test for whether spoken words are free speech or not is called the Brandenburg test from a SCOTUS case in 1969. It is also called the "imminent lawless action" test. ONLY if the speech rises to that level does it fall outside of the protection of the First Amendment.
In essence the speech must be the kind that does or inexorably is known to lead to "imminent disorder." (This standard is from another SCOTUS case in 1973, Hess.)

This is a very high bar & effectively renders almost all speech that doesn't actually result in violence, protected.
The "speech" in Brandenburg took place at a KKK rally, disparaged Blacks & Jews, suggested "revengance" should be had against the Congress for "suppressing" whites, & explained there would be a "march on Congress" on July 4th of 400,000, followed by marches in FL & MS.
Read 7 tweets
Apr 16
Listening to Fischer argument now. Govt arguing 2nd.

Sounds to me like the 3 liberal justices are in favor of the govt‘s position.

So far, I have 3 of the conservatives in favor of Fischer - Chief Roberts, Alito & Thomas.

Not sure yet on Barrett, Gorsuch & Kavanaugh.
Robert’s really arguing with the SG - that doesn’t usually happen.
Gorsuch is definitely for Fischer. He’s scorching the SG.
Read 13 tweets
Apr 13
Understand reality:

The US govt needs to & is going to spy on foreigners overseas & also here, in our security defense.

FISA or no FISA, that will happen.

The only questions are who “gate keeps” it & how & what the standards are & whether the standards differ inside the US.
There is no question in my mind, at all, that the federal govt has unlimited power to spy on foreigners overseas for our national security intelligence purposes.

None. Zero. Zip. Nada.

Domestic spying- of foreigners here & of US persons here & abroad- present different issues.
And there is an age old problem of whether/if/when/how information obtained from intelligence can be used in the criminal process.

These issues must be debated vigorously & our rights as US persons jealousy guarded.
Read 5 tweets
Mar 18
Free speech.

In my view the case before the SCOTUS this morning on free speech at base is not that complicated:

The govt, just like any other actor in our society, can speak.

But unlike some other actors, in speaking, the govt cannot tell others what to say or not say.
The govt can add its voice to the free exchange of ideas in the open marketplace of discussion . And it can say that its information or viewpoint is the “official” govt version.

It CANNOT, however, insist that alternative info or views be suppressed, directly or indirectly.
It has to compete openly for respect and primacy and supremacy for its views in the marketplace of ideas, just like every other speaker.

Anything else is a violation of the citizens’ First Amendment rights.
Read 6 tweets

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