Technical Analysis of January 6 2005... Here's how it could go down Part 1

[FULL_METAL_HAT]

Here's my little contribution to justice...

Technical Analysis of January 6 2005...
Part 1 (Other parts to follow)

Table of Contents
PART ONE

1. Introduction
   
   
2. Historical Background and Context
   
   
   1. "We The People"
      
   2. Why 2K?
      
   3. Courage of the Democrats
   
   
3. Procedure
   
   
   1. Joint session
      
   2. Two houses divided
      
   3. 12 Angry Dems
      
   4. The fate of America could rest on just 20 Republicans
   
   
   PART TWO
   
   
4. Obstacles
   1. Myths
      
   2. Improbable Dreams
      
   3. Four Years of Republican Realpolitik
   
   
5. Indicators of Hope
   
   
   1. The Sounds of Silence
      
   2. Just enough Spark That We Need to Proceed
      
   3. Legally Devious
   
   
   PART THREE
   
   
6. "The Bombshell"
   1. K.I.S.S.
      
   2. Devining Success
      
   3. Who Won’t be there?
      
   4. Florida and Ohio and ???
      
   5. Forward-thinking Reverse-Deduction
      
   6. Burden of Proof
      
   7. Tactics & Buildup
      
   8. The Foe
      
   9. The Appeals, Promises, and Threats
   
   
   PART FOUR
   
   
7. "Afteplay & Fallout"
   1. The Next Two Weeks
      
   2. Congress
      
   3. SCOTUS
      
   4. Executive
      
   5. "The Media"

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1 - Introduction

This analysis was originally started to confirm or deny the possibility and probability of an event that could redress the fears of many Americans, specifically that their constitutionally guaranteed right to honest representation in the government, that they themselves wholly constitute, was denied.

This overall process used could be called ‘abduction’ which consists in examining a mass of facts and in allowing these facts to suggest a theory.

Could the events leading up to January 6th Congressional acceptance of the electoral votes bring any light to how those votes would be counted and whether a challenge to those votes could succeed?

The best case scenario is very appealing and could be orchestrated, but it depends on the strength of the evidence. Given the right evidence, an Open-and-Shut case, that could change the election with a very legitimate finality, could happen in just one day. This best case would involve both Ohio and Florida, the unveiling of undeniable evidence that would convince just 20 Republicans Senators and Congresspeople beyond a shadow of a doubt, and all this could happen before the scheduled recess of congress on that very day.

That scenario would, of course, be the best considering the incredible blow to the American people a protracted partisan struggle would create. However given the stakes for those in power, this case could be the the only thing standing between a true and false democracy.

Reasonably there would be resistance, in the form of an immediate recess until the next day at 10 am. However, according to US law, this process of delay could not go on for more than five calendar days, or Tuesday January 11th.

Sometime in the next six days we should know one way or the other.

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2 - Historical Background and Context

The key elements of the history and context of this challenge are of course the events and outcome of the election in 2000 that ultimately had Bush declared as the de facto winner by the Supreme Court of the United States (SCOTUS), despite the fact that in truth their power being third in line to the ultimate power embodied by the Congress made up of “We the people".

“We The People"

The Constitution of the United States of America is heralded as the shining example of the foundation of a political system in which the government is granted powers to no one other than its citizens, via their elected representatives. This comes from the very first two parts of the Constitution:

Preamble
We the people of the United States ... do ordain and establish this Constitution for the United States of America.
Article 1 Section 1.
All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Other sections reaffirm, as the representatives of the people, the Congress’ specific power over all other branches of government.

Article I Section 8
... To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

The second article of the Constitution gives the definition of the executive power and the process of the election of the executive, written in its first section, and the ability for Congress to remove those powers is written in its fourth section:

Article 2 Section 1
The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected, as follows: ...
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
Article 2 Section 4
The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

The next article covers the creation of the courts, and the extent of powers of the third level of the government is laid out in the third article’s first two sections:

Article 3 Section 1
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
Article 3 Section 2
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, ... to controversies between two or more states;--between a state and citizens of another state;-- between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

This second section also talks about the all the crimes in the jurisdiction of the courts and points out their responsibility is universal except for cases involving impeaching the executive powers, which is obviously held by the congress, the people, and not any courts.

Article 3 Section 2
The trial of all crimes, except in cases of impeachment, shall be by jury...

The definition of the highest crime, treason, is explicitly made in the constitution, and only the highest power of the congress is able to declare punishment for something so heinous to the state.

Article 3 Section 3
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. ...
The Congress shall have power to declare the punishment of treason ...

Some other interesting elements are divined in a number of the Amendments to the Constitution:

Amendment 1 (1791) – Congress shall make no law ... prohibiting ... the right of the people ... to petition the government for a redress of grievances
Amendment 14 (1870) - The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.
Amendment 26 (1971) - The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.

Scholars argued after 2000’s election on why the supreme court should not have decided its contest, as Congress is the ultimate body of power, and exists to represent the will of the people.

It would seem natural that Congress should have been the final decision on the count of the electoral votes in the 2000 election. It’s power to do this is laid out in the first section of article two, in amendments 12 (1804), 14 (1868), 23 (1961). Further it is written into the government body of laws called the “United States Code" in title 3, chapter 1 subsections 5, 6, 15, 16, 17, and 18.

With so much indicating that the Congress should have been the arbiter, not the Supreme Court, it is fair to ask why this was not the case?

Why 2K?

The situation left after the Supreme Court’s decision in December 2000, created an amazing opportunity to exploit the nobility of congress.

Many people are aware of the strange situation on January 5th, 2000, when members of the Congressional Black Congress stood up to protest the counting of the electoral votes from the state of Florida. They considered those electoral votes to be not “regularly given" due to constitutional infringements, under the 14th amendment, and in US Code:

Amendment 14 (1968)
... But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any ... citizens of the United States, or in any way abridged, ... the basis of representation therein shall be reduced in the proportion ...

USC Title 3 Chapter 1 Subsection 15
... no electoral vote or votes from any State which shall have <not> been regularly given by electors whose appointment has been lawfully certified

The same subsection 15 states that such an objection brought up in the counting of the electoral votes, needs to be in writing, and have the support, through their signature, of one member of the House of Representatives and one member of the Senate. Briefly, the process at that point has the two bodies separate, debate for up to 2 hours and vote on the objection.

On January 5, 2001, there was a very precarious position in the congress as the House of Representatives had a Republican majority, but the Senate was tied with 50 Democrats and 50 Republicans. If an objection to the counting of electoral votes was called for, a tie in the Senate’s vote would have to be broken by the President of the Senate. This role is specifically defined in Article Two Section Three:

Article 2 Section 3
The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.

Further, the 20th Amendment defines the terms of both the Congress and the Executive:

Amendment 20 (1933) - Section 1
The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January...

With a new congress and it’s equally balanced number of partisan members, the Senate’s deciding vote for the rejection of Florida’s electors, and thus the Presidency of the United States would have fallen to Al Gore, the Vice President until January 20th, and of course the very person who would be President with a successful challenge.

That kind of boxed-in situation, in which Gore could have vote himself into office left the Democrats in a terrible situation, since both Houses would need to vote for the objection. If the objection was allowed, there could be two possible scenarios. Either the Republican majority in the House of Representatives would vote against the objection, thus forcing the denial to the objection of the electors, and the Senate’s majority including Gore’s vote would be useless. However, if the House of Representatives voted for the objection, the Senate’s tie would mean the entire presidency would come down to one man’s vote.

It would seem that the entire power of Congress, and by extension, the power of the people to choose their own government leaders was voided by the potential of creating a hopelessly divisive government on the one hand, or a self-annointed President on the other.

Courage of the Democrats

Knowing this situation in more detail reconsider their fear that Democrats were simply too scared to do anything about the disenfranchisement of the many voters in Florida, and see that in fact, the resentment of being forced into such a situation could make Democratic leaders take up a stronger measure of courage when given a new opportunity.

Over the last four years, there has been more change and strife in the nation then perhaps ever before. The administration ultimately chosen by the Supreme Court and unchallenged by the Congress, has seeming worked against all efforts to make for a more responsible and transparent election process. The aggressive and determined will of the executive branch and the complicity of a Republican Congress has all but doused the hopes of civilized and diplomatic efforts, made in good faith, to make any changes at all.

In the face of what is retrospectively an impossible attempt to make those changes, perhaps the Democrats decided that their efforts would have to be less civilized and less diplomatic, utilizing any and all means within the rule of law to redress their grievances given to them under the first amendment.

To accomplish such a feat would require an intimate knowledge of the law, and the will to exploit any advantages that could be discovered in the procedures used to express the will of the people.

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3 - Procedure

As laid out in the constitution and in the US Code, the objection to the election of the President has a very specific procedure. Typically this is a purely ceremonial function, but the law does outline what is done if there is an objection to the electors from any state.

Joint session

In a special joint session of Congress held in the House of Representative’s Chamber, the winner of the each state’s electoral votes for President are announced, one state at a time, in alphabetical order.

If an objection is made to a state’s electors that is in writing and signed by one senator and one representative, an extraordinary procedure is put in place where the Senators return to their own chamber and over a two hour period, each body debates the merits of the objection brought forth.

Two houses divided

Once the two houses have divided, the US law states that there is a debate with three simple rules:

1. Each speaker is allowed only five minutes
   
2. No Speaker can speak more than once
   
3. No longer than 2 hours. At this point the presiding officer of each body calls for a voice vote on the objection.

Election contests are unlike typical courtroom dramas with extended evidence discovery, but rather all the objections must be stated explicitly in the original protest, and only those points presented are debated.

12 Angry Dems

A question still remains on who gets to speak. With a maximum of five minutes and a total of 120 minutes there cannot be more than 24 speakers in total. Assuming there is a traditional partisan split, in each body there would be twelve Democrats given the opportunity to present the case, and twelve Republicans with the opportunity to refute it. As well, both the House and the Senate have a single Independent who may be given a deference to speak, which would take away a position from either the Democrats or the Republicans.

The fate of America could rest on just 20 Republicans

In the House of Representatives, there are 206 Democrats, 233 Republicans, and one Independent. Assuming the Democrats and Independent vote unanimously, a majority vote for an objection would need only 14 Republicans to be convinced to achieve 221 votes. That’s just 6%. Looking at that, it does make the possibility of rejection real.

The Senate is now composed of 44 Democrats, 55 Republicans, and one Independent. Again assuming a unanimous vote of the Democrats and Independent, a majority vote for an objection would need only 6 Republicans to be convinced to achieve 51 votes. Again, seeking the vote of only 6 Republicans (10%) gives credence to the possibility of a successful rejection of the state’s electoral votes.

One of the best things from this analysis is the realization that there are just 20 people whose decision would change everything.

When both the Senate and the House of Representatives have had their debate and vote, they return to the joint session.

If both bodies are not unanimous in their decisions on the objection, then the electoral votes of the state in question are accepted.

However, if both houses agree, then quite simply those votes are rejected.

In this 2004 election, the tally of electoral votes is 252 for John Kerry, and 286 for George Bush. A successful objection to the state of Ohio would discount 20 electoral votes from the 286 awarded, leaving 266. This would be an incredibly significant accomplishment, but would still leave a 14 vote difference between the two contenders.

As we know each state is individually dealt with, so given the evidence for the objection of two states, the joint session would have reconvened after a successful objection to Florida’s voters, only to patiently accept the next states votes until reaching the letter O and Ohio, where they’d once again separate and debate for another two hours.

A total of eight hours of debate, hearing from up to forty-eight Senators and Representatives, could swiftly and decisively change the course of the 2004 election in a way no adjudication in any court could.

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Parts 2, 3, and 4 to follow.

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Obstacles

Indicators of Hope

"The Bombshell"

"Afteplay & Fallout"

[wiggs]

1. Nice job

I bet it felt good to play with this scenario!

Rationally, you would have to think there would be 20 republicans who could vote against Ohio electoral certification. First, vote tampering is so fundamentally at odds with our identity as a nation, if some of the 20 found the tampering argument frightening, they might be tempted to void the electoral votes to make a statement.

Second, many members of congress, republicans and democrats alike, have to look at this administration as dangerous and inept. The BA has spent the last 4 years lying to congress, taking power from them, changing law by executive order and funding cuts, and generally embarrassing all of us. Some republicans have to resent this (the ones not bought off by huge budget pork).

I don't know if 20 republicans will actually vote contrary to party...but I BET A GOOD DEAL MORE THAN 20 ARE GOING TO BE TEMPTED TO.

[SlowDownFast]

2. my, my.....

quite the busy bee, eh?

[jmc777]

3. Interesting read. Please clue me up on something.....

....if Kerry's in Iraq right now can vote in absentia? (I'm assuming "Yes" but I don't know......so I thought I'd ask:shrug: )

[FULL_METAL_HAT]

4. Kerry's Absence

Kerry's absence doesn't seem to change the voting whether he'd be able to vote-remote or not.

44 (43 Dems +1 Ind)

vs.

55 Republicans

still need a majority of 50 to 49 votes (out of 99), so 6 Republicans are still needed to win.

BTW one of the obstacles is obviously the President of the Senate ... If he has to break a tie, guess which way he'd vote NO MATTER WHAT???? ;)

Steeled Against All
FULL_METAL_HAT
This is my computer. There are many like it, but this one is mine. My computer is my best friend. It is my life. I must master it, as I must master my life. Without me my computer is useless. Without my computer, I am useless. I must fire my computer true. I must shoot straighter than my enemy who is trying to kill me. I must shoot him before he shoots me. I will. Before God I swear this creed. My computer and myself are defenders of my country. We are the masters of our enemy. We are the saviours of my life. So be it .. . until there is no enemy ... but peace. Amen.

[OrangeCountyDemocrat]

5. Would Suck

But I'd still pay $$ to see Mr. Undisclosed Location have to cast the deciding vote. It would at least make for good theatre.

[bunny planet]

6. Very impressive............

I can't wait for parts 2, 3, and 4
I love the way your mind works full_metal_hat

I really like the 'best case scenario'

[corbett]

7. Superb!

[ConstitutionGuy]

8. Flawed Assumption

I strongly believe your basic assumption that all Democrats will affirm the challenge is flawed.

What you expect of them is no small thing. The overturning of a Presidential election flys in the face of over 200 years of peaceful, orderly, settled transition of power in this country - something that sets us apart from nearly every other nation on the planet. If the results were to be rejected, the new precedent that would be set is terrible in its implication. From this point forward, no presidential election would ever be settled because the bar for "meddling", which used to end on election day, has now been moved to January 6th. Expect every future presidential election to be challenged in Congress, no matter the party of the winner. Every state will be turned end over end in search for any irregularity or problem that can be used to tar the winner as a fraud. Throughout the rest of your life, your children's lives, and the lives of your grandchilren, half of the country will always reject the current White House resident as an illegitimate and fraudulent president.

For these reasons, among many more, the great majority of both houses, including members from both parties will DECLINE to reject the Ohio and Florida electors. The Conyers report is compelling but it presents a one-sided partisan view of the events, and the claims contained therein have not been subject to any independent cross-examination or verification. A member of Congress, of either party, that is thinking of the longterm implications for the institution of the presidency, will decline to undermine the office.

That is not to say that the subject is foreclosed. There are many other avenues of investigation that can be pursued and pressed with thoroughness and thoughtfullness, as they should be for something this momentous. But flying straight into the teeth of the enemy is not the way to proceed.

[FULL_METAL_HAT]

10. I hear ya! My scenario is about a win though so

an irrefutable Constitutional argument is needed to be sure.

But the red sox did win the world series...

And more seriously, as to Dem voting, key would be the dominoe effect, the peer-pressure effect, and, ultimately, the just-one-yard-to-the-goal-line effect.

If 6 Republican Senators voted to reject the electors, its rather unconceivable that all the Democrats wouldn't stand. Yes, thats a bit circular, but such is 'abductive' reasoning :)

We all know whatever happens happens, and we're just 13 hours away now!

D-13

Steeled Against All,
FMH

p.s. I think there are greater threats to the country than whether congress should be considerate of the electoral process, and if the Democrats feel the same way, tomorrow we'll see some change!

[MarkusQ]

11. I beg to differ

It would still be "peaceful, orderly, and settled"--and in fact the process is as clearly spelled out in the constitution as the more common version. The fact that it is "the road less traveled" is not a mark against it.

Consider: your logic could be used to claim that the police would refuse to stop someone who was driving erratically simply because they don't stop most people most of the time, and everyone agrees that it would be bad for them to stop people arbitrarily.

Objecting to the electors of a state that conducted its elections in a fashion inconsistent with the constitution and their own laws isn't arbitrary, it isn't uncalled for, and it isn't a threat to democracy.

Failing to object, however, would be.

--MarkusQ

[Doremus]

13. No, your assumption is flawed - You'll recall that this last happened

in the 1800s -- and there weren't any mad rushes to contest subsequent elections.

Congress has no intention of enacting election reform. We cannot force them to without leverage.

We cannot gain leverage without a huge spotlight shining directly on their dirty deeds.

[theboss]

9. Do you honestly believe the Dems are going to vote unanimously on this?

If Boxer stands up, I imagine she is still going to vote to certify.

[FULL_METAL_HAT]

12. Hey, belief is what I'm trying to keep out of this :)

My scenario shows that without any magical powers, save some serious evidence strong enough to have the essence of 7,591,783 votes of Florida rejected AND ALSO the 5,625,281 votes from Ohio!

That is over 10% of all the votes.

The "bombshell" would have to be very very serious!

4 years could be enough to do this though...


Steeled Against All,
FMH