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With filing the Texas lawsuit it becomes increasingly clear that the whole post-election strategy of Trump was to shift the presidential election to the House of Representatives with the help of the Supreme Court.

There is however one point which is still unclear to me. It seems to be impossible to invalidate only presidential part of the election. And this has concequences.

The Republicans have majority of representatives in 27 state delegations of the Hause. They need 26. But two out of these 27 delegations are from the sued Wisconsin and Georgia. If they are not present Trump very probably cannot win the contingent election.

The question: do I understand correctly that the elected Representatives from these states should be disqualified if the election in the states will be ruled "unlawful"?

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    Are you asking under the assumption that SCOTUS also invalidates the HoR elections for those states? Please make that clear. Note that Texas asks that the mail-in ballots be invalidated, and if that's grated as a relief, it will not invalidate the HoR elections for those states. – Fizz Dec 11 '20 at 19:18
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    @Fizz I think it is a logical consequence. The reps were elected in the same election using the same rules (mail-in ballots etc.) But exactly this WAS my question. – user Dec 11 '20 at 19:20
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    Ok, but make your "logical consequence" assumptions clear in the q. You've caused two people (Rick and me) to give you off-topic answers... which almost certainly means the q isn't as clear as you think. – Fizz Dec 11 '20 at 19:26
  • @Fizz From my point of view the question is formulated quite clear but I will be thankful if you suggest an edit. – user Dec 11 '20 at 19:29
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    Just became moot - motion to file denied, 7-2 (Alito and Thomas dissenting) – Sjoerd Dec 12 '20 at 0:02
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[D]o I understand correctly that the elected Representatives from these states should be disqualified if the election in the states will be ruled "unlawful"?

No, the relief requested by Texas is limited to the electoral college. That being the case, the Court would grant no more relief than requested. It follows that the elections for US Representatives and Senators (and for state and local offices, etc.) would not be affected.

MOTION FOR EXPEDITED CONSIDERATION ...

Texas also will move for interim relief in the form of a temporary restraining order, preliminary injunction, stay, and administrative stay to enjoin Defendant States from certifying their presidential electors or having them vote in the electoral college.

And

In a contemporaneous filing, Texas asks this Court to vacate or enjoin—either permanently, preliminarily, or administratively—Defendant States from certifying their electors and participating in the electoral college vote. As permanent relief, Texas asks this Court to remand the allocation of electors to the legislatures of Defendant States pursuant to the statutory and constitutional backstop for this scenario: “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.” 3 U.S.C. § 2 (emphasis added); U.S. CONST. art. II, § 1, cl. 2.


Concerning the contingent election

It depends on whether an electoral college vote takes place in the affected states and whether the results are certified before January 6, 2021. The proposed schedule for the case extends to late December 2020. Though other scenarios are possible.

Whether there is a contingent election in the House actually depends on whether no candidate receives a majority of electoral votes after any challenges to the states' electoral votes are resolved. If a candidate receives a majority after challenges there is no contingent election. See, Amendment XII.

In any case, the representatives of states with challenged slates (one or more) of electors will still participate in votes as to whether those slates of electors will be counted. Challenges to the votes of electors, during the counting of the votes, are permitted by 3 U.S. Code § 15 - Counting electoral votes in Congress.

In deciding whether to reject a state's vote, the House and Senate vote separately and, if both agree, the votes are not counted. Voting in the House is by all representative, not by state.

It follows that, if all Democrats in the newly-formed House accept all electoral votes for Biden and Harris, then Biden and Harris will have majorities of the electoral votes and will become president and vice-president, respectively. Thus the only real possibility for Trump and Pence to win is to prevent the challenged states from submitting electoral votes for Biden and Harris on December 14th.

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    It should be clear from my question that I consider the case that SCOTUS will term the elections in all 4 states "unlawful" and there will be no "legal" electors from these states. Your answer has nothing to do with my question. – user Dec 11 '20 at 16:35
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    @user - Your question was based on there being a "contingent election". As I point out in my first paragraph: If a candidate receives a majority after challenges there is no contingent election. If the only acceptable answers must include how a contingent election will play out, there is no answer to your question. Because there are only two candidates, one of them will receive a majority. See also, Are frame challenges acceptable on Politics.SE?. – Rick Smith Dec 11 '20 at 17:16
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    @divibisan - In the 1872 election, two states' votes were rejected. When electoral votes are rejected, the majority is reduced to reflect the new total. See, 1872 United States presidential election Disputed votes and the notes below the following Table of results. – Rick Smith Dec 11 '20 at 17:41
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    @Sjoerd - Congressional Globe, February 13, 1873, page 1306. "The whole number of electors to vote . . ., as reported by the tellers, is 366, of which the majority is 184." This is a disagreement with the Wikipedia entry which claimed a reduction of the majority to 177 based on the 352 shown in the table. – Rick Smith Dec 11 '20 at 20:37
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    @Sjoerd, Rick: congress is not bound by precedent, and the fact that they noted the majority of 366 votes is not a conclusive ruling on the question. – phoog Dec 12 '20 at 0:15
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You say:

The Republicans have majority of representatives in 27 state delegations of the Hause. They need 26. But two out of these 27 delegations are from the sued Wisconsin and Georgia. If they are not present Trump very probably cannot win the contingent election.

Indeed, that seems to be correct math, but why would they not be present?

The question: do I understand correctly that the elected Representatives from these states should be disqualified if the election in the states will be ruled "unlawful"?

The real question is: disqualified by whom? Texas didn't request that in their suit. From the comments under the question, I think you assume that SCOTUS will or should decide that as well if they grant Texas' explicit requests. I'm not going to speculated on that angle, but interestingly, a somewhat prescient Politico article from September discusses how House Democrats might block the Republicans in those states from taking their seats (regardless of what SCOTUS does in that respect):

If the House is asked to resolve an Electoral College stalemate, the country will be witnessing one of the harshest exercises of raw power in its history. If Democrats retain control of the House [which they do], they could opt against seating potential members whose elections remain contested, even if state officials say otherwise.

And in a PoliticsUSA headline of today, a somewhat broader approach is mentioned:

Rep. Bill Pascrell (D-NJ) has called for House leadership to sanction and not seat the 126 House Republicans who have joined the Texas lawsuit.

The latter call is almost certainly not going fly with SCOTUS due to Powell v. McCormack (1969), which limited Congress' power to refuse seating for arbitrary political reasons like that. The former, i.e. not seat just those in (Texas) contested states... I'm not entirely sure but it looks a lot more feasible. There's a Federal Contested Elections Act that applies. The legal question would be whether those elections would qualify under that Act. From Wikipedia's summary, it seems the language of the Act is fairly broad and the process ultimately decided by a House committee, so probably fairly "flexible" to political winds:

The statute says little about the substantive standards for judging a notice of contest. Under the law, the candidate contesting the election must file a notice of contest within thirty days of state certification of the election results. The only substantive requirements for the notice are that the contestant must "state grounds sufficient to change [the] result of [the] election" and must "claim [the] right to [the] contestee’s seat" in Congress. [...]

The law also sets forth procedures for an adversarial system of taking depositions and other discovery. Traditionally, the Committee on House Administration appoints a bipartisan three-member task force to investigate and report on proceedings under the law. Generally, the task force investigates the contest and makes a recommendation to the Committee on House Administration, which then issues a report and sends a resolution to the full House regarding the disposition of the contest. "The committee may recommend, and the House may approve by a simple majority vote, a decision affirming the right of the contestee to the seat, may seat the contestant, or find that neither party is entitled to be finally seated and declare a vacancy."

Assuming those incoming Republicans would appeal in federal courts (as it happened in Powell v. McCormack, which preceded and motivated the Act), it's not inconceivable that all those cases could end up at SCOTUS as well, which might thus have to decide if those House elections are valid in view of what they decide[d] in the Texas v. Pennsylvania et al.

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    Rep. Bill Pascrell is making a different case than Powell v. McCormack. He's arguing that seeking to overturn a election result is tantamount to "insurrection or rebellion" and they should not be seated under Section III of the 14th Amendment, which bars traitors and rebels from serving in government without a 2/3 vote of Congress. – divibisan Dec 12 '20 at 1:36
  • @divibisan: thanks, I was not aware of his rationale (the article on PoliticsusUSA failed to mention it.). Still, if the House did refuse to seat them based on that more clear rationale, it would probably be challenged in federal courts too, i.e. disputing that their actions amounted to insurrection/rebellion. It would be interesting to see that in court, but my guess is it's not gonna happen how that SCOTUS rejected the Texas suit. – Fizz Dec 12 '20 at 1:41

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