Thread by @jedshug

I understand why people are anxious. But Biden will be president on January 20th.

Any worst-case scenario falls short.
The conservative Justices are not insane, nor are they bad at math.
They already have a 6-3 arch-conservative majority locked it. Why burn it down now?
1/

2/ Let’s start with one worst-case scenario: Non-certification.
Even if Trump blocks the certification of ALL five close states, Biden still have a lead of 233-232 among appointed electors, and wins the electoral college under the 12th Amendment:

3/ Let me add that this isn't going to happen. Michigan has a Democrat as Sec of State (see below) and is going to certify its electors. So will the other states...
But let's play this out anyway...

https://twitter.com/jedshug/status/1329445557929185284?s=20

4/ You still have to believe that some combination of 3 or 4 elected state legislatures will override a clear majority of their voters...
after saying there's no way they would...
provoking massive non-violent shutdowns of each state, and probably worse.

5/ And you'd still need five Justices on the Supreme Court to go along with this interpretation of Article II and "manner" as allowing post-election day coups by legislatures, with no role for gov veto, to reverse the election rules set in advance...

6/ If you say "Bush v. Gore" and Kavanaugh, there's nothing in Bush v Gore or in Rehnquist's concurrence or in Kavanaugh's or Gorsuch's recent opinions coming even close to permitting such a *post-election* legislative override.

7/ SCOTUS will not overturn these state counts.
Zero chance (0.000000%) there are 5 votes on the Supreme Court to make Trump president by judicial fiat. There isn't even one vote.
But let's play it out and imagine - utterly implausibly - it still gets thrown to the House.

8/ Yes, I've written about 12th A's rule: “In choosing the President, the votes shall be taken by states, the representation from each state having one vote.”

Yes, GOP would have a majority of state delegations... if the Dems let them all get seated...
time.com/5889013/absent…

9/ If somehow all of those state Republicans and Senate Republicans have shredded democracy by what I call "constitutional beanball," not just hardball...
Attempting a coup deep into January...
papers.ssrn.com/sol3/papers.cf…

10/ Pelosi and the House Democrats have at least one beautiful hardball pitch to make in January:

Refusing to seat Republican House members-elect until after Biden is inaugurated.
I call it the chutzpah rule...
columbialawreview.org/content/hardba…

11/
Chutzpah Rule: If a state refuses to certify electors b/c it claims its presidential vote is not clear, it has no claim to rely on its vote for House delegation. The House Majority can delay seating some of their members...

12/ By using democratic hardball jiujitsu, Pelosi & House Dems can flip the bad-faith Republican arguments about vote counts against their own GOP House Members-Elect.

The House Dems can make sure there are 26 state delegations to elect Joe Biden President around Jan 6th.

13/PS:
Some say Powell v McCormack forces House to seat such Members-Elect.
1. Chutzpah: Seating Members still depends on election results. These members dispute their own election!

2. Oath of “faithful discharge” & “uphold constitution” bars bad faith abuse of office.

14/PS there is precedent for the political flexibility of which delegations get seated in Congress based on their conduct and legitimacy.
See Reconstruction and the adoption of the Reconstruction Amendments...