Authors: Brent Wolfingbarger
4. The West Virginia Legislature has not created any mechanism whereby an interested party can contest the results of the statewide election for presidential electors.
See
W.Va. Code §3-7-1,
et seq.
5. The West Virginia Legislature has not granted individual voters, or candidates seeking the office of President of the United States, with the right to contest the results of this State’s election for presidential electors.
See
W.Va. Code §3-7-1, et seq.
6. The Legislature, after granting the franchise in the special context of Article II, can take back from voters the power to appoint electors.
See McPherson v. Blacker
, at 35 (“[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated”) (
quoting
S. Rep. No. 395, 43d Cong., 1st Sess.)
7. Any procedure which might be subsequently enacted by the Legislature to govern the contest of this State’s election for presidential electors must contain safeguards to ensure the completion of such proceeding in time to obtain the benefits of the so-called ‘safe harbor provision’ found in federal law.
See
3 U.S.C. §5.
As Dave scanned through the document, his initial enthusiasm began to wane. Quickly, he dialed Mack Palmer’s mobile number.
“Hello?”
“My head hurts now,” Dave quipped. “Have we finally won this election or not?”
“Well,” Palmer said hesitantly. “For the most part, yes.
But…
”
CHAPTER 69
WEST VIRGINIA STATE CAPITOL
CHARLESTON, WEST VIRGINIA
TUESDAY, DECEMBER 2, 8:15 P.M.
Vincent stalked the floor, his brow furrowed and his hands clasped behind his back. Bowen sat across from him, listening and jotting down thoughts as the conference call continued.
“Forgive me,” Vincent said, “but are you saying we could
still
win?”
“It’s a long shot, but, yes,” Susan Mathis replied. “Time is running out, though.”
“Could you explain how?” Senator Melanie Wilson asked.
“The Court took great pains to limit the scope of its ruling. The four justices who joined in the decision were uncomfortable letting Senator Wilson contest the election results where the Legislature had not specifically authorized any particular body to preside over such a contest. However, if you read between the lines, it’s as if Justice Lilly was telegraphing how such a contest could be enacted and implemented. Even on very short notice.”
“Again, Susan,” the nominee said, a tone of frustration creeping into her voice. “We don’t have all night here. Can you cut through the legalese and cut to the chase?”
Mathis paused. “The federal ‘Safe Harbor Provision’ indicates every state in the Union has the absolute power to pass legislation dictating how its electoral votes are cast. That decision is left up to each individual State’s legislature, which is how Maine and Nebraska are allowed to divvy up their electoral votes based on the popular vote totals in their individual congressional districts instead of giving them all to the statewide winner.”
“Interesting,” Bowen mumbled, too low for the speakerphone to pick up.
“Specifically,” Mathis continued. “It is the law that’s in effect on
December 9th
that governs how West Virginia’s electoral votes are cast,
not
the law in effect on Election Day.”
“Are you friggin’ kidding me?!” Vincent exclaimed.
“Not at all, so long as the law in effect on December 9th provides for the ‘final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures.’ If so, the ‘Safe Harbor Provision’ indicates that the law in effect on December 9th ‘shall be
conclusive
, and
shall govern in the counting of the electoral votes
as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.’”
“So let me get this straight,” Vincent prefaced. “The Legislature can wipe out the results from Election Day by passing a new law? It would be like the election never even happened?”
“Although some constitutional law professors have taken that position, I personally wouldn’t go
that
far. But if the Legislature were to convene in special session and pass a new law vesting itself with the authority to convene as a court of contest and take evidence on the issues of voter fraud and intimidation, it could do so. And so long as that procedure was completed no later than December 9th, the Legislature’s determination of that issue would be final, and it would govern how West Virginia’s votes in the Electoral College are cast.”
Silence ensued as everyone contemplated the scenario proposed by Mathis. Fifteen seconds later, Vincent broke the spell. “That’s just
crazy!
I can’t see it happening. The people in this state would go absolutely bat shit if I tried pulling a stunt like that.”
“Then we’ll have to make it look like it’s not
your
idea,” Bowen interjected. “I’ll get someone in the Legislature to float a trial balloon for us. See how people react. If we spin it so it looks like the Legislature is just trying to correct its oversight, maybe people will buy it.”
Vincent’s jaw muscles twitched. “Let me be clear about this folks,” he intoned slowly. “I’d love to win this election. But I will not jeopardize my ability to govern this state effectively during my second term. You guys can leave West Virginia in your rear-view mirror if a stunt like this collapses. I can’t.” Vincent’s chest was heaving, his face pinkish. “And I’ll be
damned
if I’m going to wind up with the citizens of this state burning me in effigy because they think I’m a sore loser who doesn’t know when to quit. I’ll
personally
concede this election before I let that happen to me.”
“Trust me,” Bowen assured. “We’ll float the trial balloon, and if it looks like it’s going over like a turd in a punch bowl, you can shoot it down yourself. Just give me two days.”
Vincent’s eyes burned, but he remained silent. Bowen pleaded, “Two days. That’s it.”
The governor took a deep breath and nodded reluctantly. “Two days. If the public gets behind this idea, we’ll run with it. Otherwise, I’m pulling the plug.”
Bowen nodded, before loudly adding, “In the meantime, Tyson, keep exploring our other options. If we can’t muster enough support to warrant a special legislative session, assume our chances of winning West Virginia’s five electoral votes are over and proceed accordingly.”
“I read you loud and clear,” Vasquez responded.
CHAPTER 70
PLEASANTS COUNTY, WEST VIRGINIA
WEDNESDAY, DECEMBER 3, 12:00 P.M.
Jack sat on the couch, thumping his palms on his thighs and staring at the front door.
I’m as nervous as I was the night Logan was born. I can’t believe I’m about to close a deal worth 25 million bucks!
Through the frosted glass, a shadow approached the door. Then the musical doorbell rang. Jack rose and opened the door with a practiced air of nonchalance. “Yes?”
A man wearing a dark suit, white dress shirt and silver silk tie stood on his doormat. Darkly-smoked sunglasses rounded out his look. “Are you Jack McCallen?”
“I am. Can I help you?”
The courier held a cardboard envelope atop a clipboard. As he flipped the envelope over, Jack noticed an iridescent metallic strip was affixed across the envelope’s flap. The messenger reached into his pocket, pulling out a small ink pad and a snazzy-looking pen. “Press your right thumb against this ink pad, affix your thumbprint to this document and sign your name below it.”
“Why?” Jack asked, bristling.
“Rules are rules.”
Jack begrudgingly complied. “Thank you,” the courier said. “My card’s inside the envelope. Call me once you’ve signed it, and I’ll come pick it up. If I don’t hear from you by five o’clock tomorrow, I’ll return and take the package back to Reston with me.”
“So you’re just gonna hang around Parkersburg, waiting to hear from me?”
The man smirked. “Buddy, these guys are paying me a
lot
of money to babysit that thing. If they want to pay me to sit around playing with my balls, I ain’t complaining.” With that, he walked away. “Don’t forget. Five o’clock tomorrow or whatever deal you made is off.”
Jack nodded and watched the man get into a polished-looking black luxury car and drive away. As the car disappeared, Jack shut the door and walked into the office with the envelope.
The kids were in school and Tabatha was out running errands –
or
screwing
somebody
, he realized bitterly – so Jack was home alone. Sitting at his desk, he tore open the envelope, shredding the iridescent strip in the process. Reaching inside, he was surprised by how thin the document was: Only three pages long.
As first, it was mostly boilerplate language.
The parties of the first part, Jackson P. (“Jack”) McCallen and McCallen Resources, recognize the interest of Petromica in maintaining the confidential nature of proprietary information, Trade Secrets (as defined in the Trade Secrets Act, 18 U.S.C. 1905 and the Virginia Trade Secrets Act, Virginia Code §59.1-336,) and other business and commercial information of the Company (collectively, “Proprietary Information”). Proprietary Information shall include without limitation, information relating to the businesses, operations, customers, financial affairs, industry practices, technology, know-how, intellectual property, confidential techniques, copyrights, patents, trademarks, blah blah blah.
Jack read that he and his firm would be subjected to hideous legal ramifications if they dared divulge any of Petromica’s Proprietary Information to third parties, including any of the contents of the TSPA itself. By its terms, the TSPA required Jack to cooperate with Petromica in protecting the secrecy and integrity of its Proprietary Information, even requiring him to refuse to comply with any court orders demanding that he disclose such information unless he first received Petromica’s written permission to do so.
I don’t know about that.
Reaching the top of the third page, Jack suddenly froze.
Oh, my God. This can’t be happening. Please, God. Let me wake up.
Suddenly, he realized with crystal clarity that Sections Seven, Eight and Nine of the TSPA constituted the crux of Petromica’s offer. It spelled out, in no uncertain terms, what it expected in return for its investment:
7.
Additional Services.
McCallen covenants that on the fifteenth day of December this year, in furtherance of his services on behalf of Petromica, he will present himself at the Office of the Governor of the State of West Virginia at the appointed time for presidential electors to cast their ballots, at which time he will cast one (1) vote for Senator Melanie Wilson for the office of President of the United States, and one (1) vote for Governor Luke Vincent for the office of Vice-President of the United States.
8.
Conditional Re-conveyance of Shares.
In the event McCallen performs the Additional Services outlined in Section 7, Petromica shall re-convey to McCallen all of the stock shares in McCallen Resources which it has purchased pursuant to the Stock Purchase Agreement executed contemporaneously by the parties, said shares to be re-conveyed free and clear of any and all liens and encumbrances, and McCallen Resources shall be entitled to retain the purchase money tendered by Petromica in connection therewith.
9.
Reservation of Right To Cancel Purchase Agreement.
In the event McCallen fails to perform the Additional Services outlined in Section 7, Petromica shall have the sole and exclusive right to cancel the Stock Purchase Agreement without any penalty whatsoever, thereby declaring the same to be null and void
ab initio
.
With quaking hands, Jack laid the document down on his desk. Covering his closed eyelids with his right hand, he shook his head and fought back tears.
I should have known it was too good to be true. What in God’s name am I going to do?
CHAPTER 71
RED CARPET LOUNGE
CHARLESTON, WEST VIRGINIA
WEDNESDAY, DECEMBER 3, 3:00 P.M.
Bowen sat at a secluded booth, swirling his scotch-and-soda. Located just blocks from the State Capitol, the bar’s ambience was unspectacular, but it had long been a popular watering hole for sundry politicians, bureaucrats and lobbyists.
“So what are people saying about this ‘special session’ idea?” Bowen asked.
The man on the other side of the booth loosened his necktie and chuckled. “Does the phrase ‘eat a bag of shit’ mean anything to you?”
“The legislators are that supportive, eh?” Bowen quipped.
His companion shrugged. “Everybody’s just tired of hearing about it, Dick. This has been dragging on for a month, and you can’t turn on a TV without
drowning
in the coverage. We’ve had our fill, and people aren’t eager to stick out their necks on this thing.”
Bowen sighed. “That’s what I was afraid of. It’s a damn shame, too, considering how close we are to pulling ahead and winning this thing.”
The other man laughed uproariously, causing the waitress to glance over at their booth. She shook her head and resumed wiping down another table about 20 feet away.
“
Close
only counts in horseshoes and hand grenades, my friend.”
Bowen drained the last of his drink and motioned the waitress to bring him another. “Thanks for reminding me.”
WASHINGTON, D.C.
WEDNESDAY, DECEMBER 3, 3:35 P.M.
“Any word on whether Vincent will call a special session?” Dave asked, holding his cell phone.