Q for Constitutional Scholars--If 2004 Election Invalid, Will W's SCOTUS

[petgoat]

appointments be removed?

Might the revelation of the Dept of Homeland Security warning about the
software backdoor in the Diebold tabulators be enough to justify
holding up Roberts's confirmation?

(Thanks to Bradblog Commenters extraordinaire, BrendaShipper and George
for this notion.)

http://www.bradblog.com/archives/00001871.htm#comments

[Kagemusha]

1. Quick and dirty: The election is valid, question is null and void.

Legitimate we can argue about. However, the validity is the sole concern of Congress (and that court ruling is totally besides the point) and Congress recognized the electors, and the electors picked Bush. End of story, forever. Everything Bush does after that is no different than FDR in terms of legality.

[SlipperySlope]

2. Not possible...

Remember: The president is elected by the electors, not by the people at large. The electors cast the vote that selected Bush, and that vote is not in question.

One could potentially ask if the right electors were sent to Washington, but only a U.S. Senator actually has the power to bring that question to the floor, and the opportunity for that has already passed.

Crap.

[petgoat]

3. Are you sure that a case can't be made

on the basis that the electors were chosen on the basis of correct vote
counts, and since we can no longer have confidence the counts were
correct, we can not be confident that the right electors were chosen?

You don't have to be able to prove that the wrong ones were chosen, just
that there's no reason to believe the right ones were.

[SlipperySlope]

4. Nice to think about, but no Constitutional basis...

The constitution and the twelfth amendment don't really provide for anything like that.

Certified votes were sent from all 50 states to the Congress, those votes were accepted by the Congress, and the results were counted. All this was as per Amendment XII. The Constitution or the Amendment don't offer any "do over" that I can see.

Turning to US Code (where the actual rules of the election are written).

3 USC 5: Says that if a State has made the final determination of electors prior to six days before the meeting of the electors, then that determination shall be conclusive.

3 USC 15: Deals with objections to the electors; these must be made on January 6th after the election.

As much as we might wish otherwise, there is nothing in the constitution or the statutes that let Bush be "undone" as president. Going down that path isn't going to be fruitful...

[Burning Water]

6. If you think

there is no reason to assume the right ones were chosen, what is the solution? You can't just arbitrarily assign them to Kerry.

Nope, Bush is the valid (if not legitimate) President, and his actions will stand. Throwing out doubt is simply not enough.

[emcguffie]

5. What if? What if?

I have the same question. What if we win the 2006 and 2008 elections, and can demonstrate, prove beyond a reasonable doubt or whatever the correct terminology is, that the election was stolen, would not that then lead to getting rid of all his appointments? Would they not then be invalid, if he were not validly elected?

Could happen, couldn't it? I mean, that we prove it was stolen?

[Burning Water]

7. We might prove that it was stolen.

I hope so, some day. But in the meantime, he is the legal president. The next guy can set about undoing the harm, but his judicial appointments will stand.