SHOULD CONGRESS CERTIFY THE ELECTORS? — PART 7

Here we come to Part 7.

National Atlas map from 2002 (from National Atlas of the United States – Wikipedia).

What is Part 7 about?

If the Electors from Georgia, Michigan, Pennsylvania and Wisconsin are rejected, what is the Constitutional remedy?

What did the Texas filing with the Supreme Court (see AG Paxton Sues Battleground States for Unconstitutional Changes to 2020 Election Laws | Office of the Attorney General (texasattorneygeneral.gov)) have to say about a constitutional remedy. Well, before we get into that, we need to consider which parts of the Constitution state and local officials in Georgia, Michigan, Pennsylvania and Wisconsin were guilty of violating.

There were three constitutional violations.

The Electors Clause

The first violation involved the proscribed method of selecting Electors.

“The Electors Clause of Article II, Section 1, Clause 2, of the Constitution makes clear that only the legislatures of the States are permitted to determine the rules for appointing presidential electors. The pertinent rules here are the state election statutes, specifically those relevant to the presidential election.”

From COUNT I: ELECTORS CLAUSE, page 36

Here is the applicable text from the Constitution.

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Constitution of the United States: A Transcription | National Archives

The point is that state and local officials cannot make the rules for the election, but in this election state and local officials in Pennsylvania, Georgia, Michigan, and Wisconsin used COVID-19 as an excuse to seize authority they had no right to exercise.

The Equal Protection Clause

The second violation involved the differences in election rules applied across the state.

The Equal Protection Clause prohibits the use of differential standards in the treatment and tabulation of ballots within a State. Bush II, 531 U.S. at 107.

From COUNT II: EQUAL PROTECTION, page 37

Here is the applicable text from the Constitution.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Constitution: Amendments 11-27 | National Archives (AMENDMENT XIV, Section 1.)

One man-one vote means that if we have a state-wide election, which is what the election of Electors to the Electoral College usually involves, then every locality must apply the same rules for the election as every other locality, and that did not happen. Here is how the Texas Attorney General put it.

The actions set out in Paragraphs 66-73 (Georgia), 80-93 (Michigan), 44-55 (Pennsylvania), and 106-24 (Wisconsin) violated the one-person, one-vote principle in Defendant States Pennsylvania, Georgia, Michigan, and Wisconsin.

From paragraph 138, pages 37-38

For example, if some localities allow improperly filled out absentee ballots to be cured, and some follow the rules and don’t allow the curing of defective mail-in ballots (for the sake of maintaining the integrity of the election), that is unfair to the localities that follow the rules.

The Due Process Clause

This complaint is straightforward and fundamental.

When election practices reach “the point of patent and fundamental unfairness,” the integrity of the election itself violates substantive due process.

From COUNT III: DUE PROCESS, page 38

Oddly, this violation also relates to Section 1 of the 14th Amendment. The focus just changes from equal protection to due process.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Constitution: Amendments 11-27 | National Archives (AMENDMENT XIV, Section 1.)

Consider what we have sacrificed with respect to election integrity. If we cannot identify who is voting and verify whether people have voted only once, how can we have a fair election? Don’t we know people cheat?

We know how to fix all these issues. We have a report, 7 Ways the 2005 Carter-Baker Report Could Have Averted Problems With 2020 Election (dailysignal.com). Unfortunately, we have apparently put too many people in power who want to cheat.

What is the Constitutional remedy?

When Texas Attorney General Ken Paxton filed his state’s lawsuit with the Supreme Court, what did he want? He wanted the presidential elections in Pennsylvania, Georgia, Michigan, and Wisconsin voided, and he wanted the Supreme Court to direct the state legislatures to appoint their Electors directly. Sadly, the time has passed when state legislatures could have directly selected the Electors.

So, what is the remedy now? When Congress meets on January 6, it must refuse to approve the Electors from Pennsylvania, Georgia, Michigan, and Wisconsin, and the House of Representatives must elect the President (voting by state delegation), and the Senate must elect the Vice President.

Is this proposal constitutional? Can Congress refuse to approve the Electors sent to it by a state?

One argument says “no”. It is based upon this clause.

The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.

The Constitution of the United States: A Transcription | National Archives (Article. II, Section. 1)

Article II, Section 1 doesn’t give the Vice President (The President of the Senate) or Congress any authority to determine what Electors are valid. It simply says that the state legislatures shall choose their Electors. However, there is a part of the Constitution most don’t give much thought. That is Article IV, Section 4.

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

The Constitution of the United States: A Transcription | National Archives (Article IV, Section 4)

How is the Federal Government supposed to guarantee to every State in this Union a Republican Form of Government? The Constitution does not say. However, if ensuring a fair election is not part of the package, what does guaranteeing every State in this Union a Republican Form of Government mean?

What happens if we don’t insist that all states follow appropriate election rules? Don’t we risk the election of a corrupt president? In such an unstable world, one in which we have given the Federal Government enormous power, don’t we absolutely need the most trustworthy president we can elect? If candidates can steal elections, we will not get trustworthy presidents.

The Congress of the United States is the most powerful and most representative part of the Federal Government. We have existing procedures that allow one member of each house to jointly contest the Electors from a state. This is a good time to put those procedures to the test. So, let’s go back to where we started, Part 1: The importance of January 6, 2021 to certifying the vote of the Electoral College. Let’s think about how Congress said process of contesting Electors supposed to work, and let’s insist that Congress make it work that way on January 6, 2021.

This entry was posted in 2020 Election, Constitutional Government and tagged , , , , , , , , , , . Bookmark the permalink.

3 Responses to SHOULD CONGRESS CERTIFY THE ELECTORS? — PART 7

  1. boudicaus says:

    Reblogged this on boudica.us and commented:
    H/T Citizen Tom

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s