With today's chatter about vote-counting processes, declaring winners on Election Day or not, etc., I want to recount a crazy, revealing story from the 2000 election that most people have forgotten about or never knew . . . because it happened in New Mexico and not Florida.
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New Mexico saw about 600,000 votes cast. On election night, Gore led by about 5,000 and the networks initially declared him the winner.
Late Wednesday, a programming error was discovered that had excluded 67,000 votes from totals in Bernalillo County (the biggest county).
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With those ballots counted (along with other missing ones that turned up on Thursday), Bush took a 4-vote lead. His lead grew a bit as counties settled minor discrepancies and re-canvassed.
But on 11/14, a week after election night, there was another dramatic reversal.
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Doña Ana County officials realized that a handwritten tally-sheet entry, first entered as 120 votes for Gore, actually said 620. Some say it was bad handwriting, others a paper clip obscuring the number. Either way the correction flipped the result: Gore won NM by 366 votes.
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The final call for Gore in New Mexico came on 11/17, ten days after election night. He'd won by 0.06%.
Few Americans noticed any of this at the time, though. As the New Mexico drama was playing out, it was already apparent that the whole election would come down to Florida.
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In other words, there was no reason for Bush to fight hard for New Mexico, because by 11/17 its 5 electoral votes clearly were not going to be decisive.
Had it been otherwise, who knows what further drama might have gone on as the parties fought over the razor-thin margin?
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The morals:
* Finalizing vote counts takes many days.
* Typically we don't notice, b/c results usually don't turn on the tiny changes that later stages of counting yield.
* There are *always* small errors—finding and correcting them takes time, patience, and good faith.
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As expected, Speaker Pelosi's 25th Amendment talk today was on introducing the Raskin bill. This would create a bipartisan commission to substitute for the Cabinet in deciding when the president is "unable" under §4.
Tweeters are confused about what this means. Some notes:
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* No one thinks this legislation will pass now. If it does, Trump would surely veto it.
* Legislation like this is provided for in §4. It says that the VP and Cabinet invoke §4, but that Congress can legislate a different body to substitute for the Cabinet in that process.
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* The rest of §4 would still apply: VP would need to sign on before §4 could be invoked. If the president declares he's able, he'd retake power in time unless the commission, VP, and 2/3 of House and Senate agreed he's unable. The commission wouldn't have unilateral power.
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I checked the data on previous Supreme Court vacancies near an election. Here's what I found:
Latest vacancy filled before the election: June 10, filled July 24. This was exceptional, though: Justice Hughes resigned in June after the Republicans nominated him for president.
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That outlier aside, the latest is March 23 (Waite), filled July 20.
6 other vacancies arose later than that. Of those, 5 were only filled after inauguration. The 6th was filled soon after an election in which the president was reelected.
But that's not the whole picture.
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10 vacancies arose during the lame-duck (betw. election and inauguration). Of them:
4—filled after inauguration.
3—filled during the lame-duck after the election kept the president's party in power.
3—filled during the lame-duck after the election shifted party control.
3/8
I see confusion on Twitter about pardons b/c of Roger Stone. Here's a thread—tell a confused friend.
This is for those who 1) didn't think Trump had the power to do this (wrong); or 2) think he shouldn't have it (misses some points).
("Pardon" here means pardon OR commute)
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* "I thought impeached presidents can't pardon anyone"
Impeachment by itself does nothing to a president's powers. Only a conviction affects them. It's all or nothing.
Trump pardoned several people back in February, and Clinton and Johnson pardoned plenty post-impeachment.
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* "I thought impeached presidents can't pardon people for crimes that the impeachment was about"
A widely tweeted column confidently claimed this, and there is an impeachment exception to the pardon power. But the standard interpretation of that exception is that pardons…
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The main reason that one sees so many tweets about the 25th Amendment (§4) is that so many people think it works like this:
Step 1: Someone invokes the 25th Amendment.
Step 2: The president is removed from office.
But it doesn't work like that.
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First, it requires incapacity. Not impairment, ineptitude, or extreme badness. Full-on incapacity. That's a high bar.
Second, it's invoked by the VP and Cabinet. 25A's drafters thought they'd be reluctant to move against their boss. For the drafters, this was a plus.
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(Don't say "25A is unavailable b/c the whole Cabinet is 'acting.'" Only 1 of the 15 is acting, and even if there were more it wouldn't pose a problem.)
Third, if 25A4 is invoked, the president isn't removed. He can come back—and 25A4 stacks the deck heavily in his favor.
3/6
Seeing speculation on double presidential vacancies and the 25th amd. Time for a thread.
1. 25th amd. §§ 3-4 transfer power to the VP when the president is "unable," and transfer it back when he recovers. But they don't apply when a VP acting as president becomes "unable."
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That is, 25A doesn't operate to transfer power further down the line of succession. As my book (tinyurl.com/y4r3xlhy) describes, the amendment's drafters wanted to keep it simpler.
But Article II and the line of succession statute still apply. My book explains how we...
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would likely proceed if the pres. and VP were both "unable": the Speaker would invoke Article II and try to use a process that replicated 25A as closely as possible (Cabinet majority; in a dispute, 2/3 congressional majorities needed to back the Speaker) to legitimize it.
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* The piece first said "many scholars agree" (as reproduced in Politico's tweet). That changed to "some scholars." Then the phrase was removed entirely.
Revisions are good—high praise to author Corey Brettschneider for that—but they should be noted. Do better, Politico.
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* The piece relies on Madison's suggestion that the House can "suspend" a president pending trial. But the House didn't purport to suspend Trump—for good reason; Madison's idea is an outlier. And even Madison didn't suggest a suspension would survive a Senate acquittal.
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