All either state has to do is say that since the Democrats did NOT recognize their ELECTED delegates, those Delegates can pick the nominee to run whoever they choose to run under the name of the Democratic party in their state. If the National Party picks someone else, he or she will either have to run in as a third party candidate (If permitted, given both states had Democratic Primaries, which generally excludes anyone who ran in the primaries from running a the third party Candidate) or as a Write in Candidate AGAINST the Democratic nominee for that state.
Now what I foresee is Obama getting the National Nomination. At that point HRC has to make a decision, to run in Florida and Michigan or stand aside. I see her standing aside, but I also see both states going forward to force the Democratic National Committee to recognize their Delegates in the Future. Thus the Florida and Michigan Delegates may pick one of their own to be the Democratic nominee in both states (And this will probably be two different candidates, one from the Michigan Delegation for Michigan, the other from the Florida Delegation for Florida). Come the fall I see both States going Democratic, but NOT Obama. At that point Obama will have a choice, either agree to recognize any delegation form either state no matter when their do their Primaries, or have the Electors for that state vote for McClain (OR the Delegates may opt to vote for their own Candidate forcing the election to the House of Representatives, which elects by vote for president BY STATE).
People always like to point out that the electoral Collages avoids direct election of the PResident, but it also permits at least two ways to vote for a Compromise Candidate. The Constitutional Convention members knew their is something about a deadline that forces deal, especially if the deadline leaves someone else makes a deal. The electors vote by State in their State Capital. At the time of the Convention that was six months BEFORE the President was to sworn in. That gave 4-5 months for the Electors to decide among themselves, who to vote for. If they could NOT make a deal, then and only then would the House of Representatives get a chance to vote for the President and then only by state.
In 1877, when Five states where in contention, a "corrupt" bargain was made between the Parties to decide who were the electors in those five states (and once the electors were decided they all voted GOP and the GOP candidate "won"). Such "corrupt" bargain for planned for by the Constitutional Convention members as a possible way to decide on a President. One the votes where counted, and the results were indecisive, you have to have someway to still elect a President. The Electoral Collage was viewed as the first step in such a process, if it could be done at that level the convention members thought that as a good way to do so. It was only after the electors could NOT decide among themselves that the Congress was called to make a decision. The Senate was to pick he Vice President out of the top two vote getters, the House was to pick the President out of the top three vote getters. Thus even the election of the President by Congress was set by the Electors by who they voted for.
Given that the House has to vote by STATE on who will be President, and the GOP controls more state delegates then the Democrats do (even through more members of Congress are Democrats, they tend to come from the Larger states, we have at least three states, Montana, Wyoming and Alaska with only one member of the house, and all three that is a Republican). Will Obama be willing to wait for a vote by the House? Given that more state delegation are GOP then Democratic? I will avoid the issue of which Congress gets to vote, but there is a question as to whether it is the Congress that is sitting today or the one elected in November as to which one gets to vote.
Amendment 12 of the Constitution is the present method of electing the President and Vice President. Under the original Constitution the two top vote getters in the Electoral Collage were the President and Vice President, but this did NOT work out, so now the Electors vote for both offices as separate offices not as one office:
For the 12th Amendment:
http://www.law.cornell.edu/constitution/constitution.amendmentxii.htmlNow the 12th was affected by the 20th Amendment that changed the start of the Presidency from March 4th to January 20th. For text of the 20th Amendment:
http://www.law.cornell.edu/constitution/constitution.amendmentxx.htmlThe 20th Amendment also changed the first day of Congress to Noon on January 3rd from the first Monday in December, AND set the last date of a Congressman's term as at Noon on January 3rd. Prior to that date it was unclear, under the Constitution, when one Congress replaced another (Congress itself set the date for its end and the beginning of he next Congress).
The Basic Argument is that when the 12th amendment was adopted the electors were to be reviewed by the Congress that was in Session after the First Monday in December NOT the Congress that came into office January 3rd. Prior to the 20th Amendment these were the SAME Congress, the one elected in the previous fall. Now the Congress elected in the Fall does NOT come into office till January 3, of the following year. The Electors, by statute, NOT the Constitution which is silent on the issue, vote by being of December and send in their Votes to Congress at that time. Thus when the Electors vote, the NEW CONGRESS CAN NOT be in Session. The argument goes that the decision of who will be President should be decided by the Congress in session in December NOT that one that comes into Office on January 3rd.
My personal view is this is a weak argument, what was meant by the writers of the 20th Amendment was to have a fix time for Congress to start its session, and given that by the time of the 20th Amendment, elections had been fixed on the First Tuesday in November since the 1880s The writers and the ratifiers of the 20th Amendment believed that any decision as to a tie for Presidency would be by the Congress that was elected at the same time as the President in the fall of the previous year. When the 12th amendment was passed states could and did elected their electors and Congressmen at different dates throughout the fall. The Congress thus elected came into session on the first Monday in December of that year. Given the short time between the First Tuesday in November and the First Monday in December, it was decided to push back the first date of Congress to the date Congress had been setting for decades (under the Constitution Congress had to meet on the First monday of December UNLESS it picked a different date, which by the 1880s it was doing on a regular basis). Thus the intentions of the Writers of the Amendment was to have the President elected by the Congress elected in the same election, NOT the previous election.
This came up in 2000, various commentaries (GOP mostly) talked about which Congress should make the Decision. The reason for the Discussion was how close the election was that the Democrats might control the majority of State Representatives to the Congress and vote in Gore, while the Congress in session in at the time of the Election had a Majority of Representatives, by states, to be GOP controlled. I believe it was just a write up to build up a claim for the old congress to elect Bush President if neither Bush or Gore won a Majority of Electors (Remember the Reform Party was alive and while at that time). GOP operators were setting up the above argument for a second way to steal the President, if the first way did not work.
I remember the weeks before the Elections, all the newspaper articles about why Gore should refuse the Presidency if Bush won more Votes, but Gore won more Electoral Votes. All the Articles wanted Gore to give up the Votes and acknowledge Bush greater number of Votes. All these articles were forgotten when the opposite happened, more people voted for Gore than Bush. I wished I had saved them, but the article not only forgotten the articles became had to find. This was to be the third line if all else failed, but Gore made sure people voted so this article was dead in the Water as far as the GOP was Concerned.
Remember the GOP like to set up a set of Arguments Weeks if NOT months before, thus the attacks against Obama today (and the Attacks against Hillary earlier in the year). I suspect most of them can be traced to the Republican National Committee, if they can be traced at all (The GOP likes hiding it trail). The GOP are good at making arguments that they believe will favor them, and forgetting them when they no longer do. Just a word of Warning in the present Obama-Clinton war, the real enemy is the GOP and try to keep the attack on the GOP and avoid attacking each other (and to accept how the GOP will attack both to further its agenda).
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