New York Postal Votes Chaos? Looming Constitutional Crisis For America In November

As of this writing the New York State Special Congressional Election for NY27 on June 23rd has not been decided because "The NY Board of Elections may be overwhelmed with counting so many postal votes" due to the Corona virus pandemic causing so many to have voted by mail. Final tally is expected about a month after the actual election day

Jennifer Sandonato, the Niagara County Republican Elections Commissioner, said on Tuesday they starting counting absentees in the local primary races.

She expects them to finish counting the absentee ballots for the local primary races by the end of this week. The absentee ballots for the special election will begin to be counted on Monday. 

Final results will not be available for "a good couple of weeks," Sandonato said.

Not only has that election not been decided but some important Democratic primary elections where insurgent AOC type candidates are leading in the tabulated votes but also the Democratic presidential primary is also outstanding.

The latter is of import because Bernie Sanders has over 142k votes so far and Biden is below 68%. If those numbers hold on a relative basis it would be a major blow to Biden, as it would show a substantial lack of enthusiasm for him in the Democratic heartland, and raises the question as to what those Sanders supporters will do in November.

This is just one state, the chaos and confusion across all 53 Electoral College voting areas (50 states plus D.C. and the Maine/Nebraska CD's) is unimaginable and it sets up for a Constitutional crisis the republic has never seen since the Hayes/Tilden election of 1876 where Hayes was confirmed in March 1877

With America being so polarized now, and if there is no clear winner this November, the scene is set for mass civil unrest as long delays in counting postal ballots and subsequent legal challenges could prevent any attempt to show an Electoral College victor by March 2021 when a president should have been elected according to the Constitution.


Then what? The Twelfth Amendment to the Constitution sets out the following;

"And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.^[a]

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.^"

^{This presumes the incoming new Senate has chosen, or in fact has the moral right to choose, a Vice-President when no clear winner has been so designated. At that point there is no Constitutional guidance with, perhaps, the Speaker of The House becoming acting president. If that person is from the party that finished second in the counting on election night in November it would be another recipe for chaos and mass protest.}

What is the definition of "The Vice-President shall act as President under these circumstances? Would that person be obliged to surrender the office once a valid and final count had been determined-there being no obligation to do so.

The 20th Amendment appears to cover this situation;

Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

But that presumes a Vice-president has been elected when that would not be the case. If one has not then for an incoming Congress possibly dominated by the "losing candidate" to designate a president when one is ahead in the counting from the oppostion party is problematical to say the least

But, let's say the Senate, acting with perceived authority chooses a Vice-President who becomes president under the rules of the Constitution. That person choose a Vice-President under the 25th Amendment to the Constitution. 

This requires the approval of both Houses of Congress which under the circumstances would be challenging to say the least. However if that eventuated there would be nothing to stop the president resigning in favor of their chosen VP who would presumably be their party's presidential candidate from November.

This has moved from a political "what if parlor" game to the realm of, sad to say, a strong and disastrous reality. There is much to be said for the election to be delayed by whatever Constitutional method available, until a vaccine for Covid has been found. The alternative of chaos. rioting, property destruction, bitter enmity is unthinkable. 

Wise heads need to prevail now, not later when it may be too late