From that page the first question is;
Question: What happens if the President-elect fails to qualify before inauguration?
Answer:
If the President-elect fails to qualify before inauguration, Section 3 of the 20th Amendment states that the Vice President-elect will act as President until such a time as a President has qualified.Then further down on that page is another question.
Question: Who verifies if a candidate is qualified to run for President?
Answer:
The Office of the Federal Register at the National Archives and Records Administration administers the Electoral College process, which takes place after the November general election. The Office of the Federal Register does not have the authority to handle issues related to the general election, such as candidate qualifications. People interested in this issue may wish to contact their state election officials or their Congressional Representatives.
In light of this answer I emailed the contact for that page the following.
From: Greg XXXXXXXI think there should be transcripts of some past joint sessions where eligibility is discussed. IE Chester Arthur for instance or maybe perhaps President number 10, John Tyler, who was one of the first NBC Presidents.
Sent: Wednesday, September 25, 2013 3:23 PM
To: 'electoral_college@nara.gov'
Subject: US Code 3On this page "Previous Questions of The Week." here http://www.archives.gov/federal-register/electoral-college/previous_questions.html
There are two questions I would like to address, the First one is "What happens if the President-elect fails to qualify before inauguration?" And the answer is correct as it states the process described in the 20th amendment and US Code 3 Sec 19. US Code 3 describes the process of counting the electoral vote for President and Vice President during a joint session of congress.
Then a subsequent question "Who verifies if a candidate is qualified to run for President?" That answer is not very specific. You mention the Office of Federal Register at the National Archives but go on to state it is a states issue. Well in section 11 we see the first mention of the Archivist. But there are three other copies of the certificates, one set being delivered to the President of the Senate. Then is section 15 we see that two tellers from each house previously selected and are handed the certificates for opening and are dealt with in an alphabetical order. It goes on to explain and clarify the counting process.
The word qualify does not appear until section 19 when it mentions the President "elect." This is because we have determined who the President and Vice President elect are. That is the point where qualifications are to be handled. In fact section 19 describes every different situation where someone other than the President elect would assume to act as President and in each case it also declares that that person needs to be "qualified". It is mentioned "nine" times! Now how can one think that any other person or body be responsible for seeing that in these different situations involving the qualification of the President and Vice President elect, or any of the other situation listed, be handled by but Congress?
Very good catch and thanks for requesting answers. Don’t hold your breath on that reply.
Article II commands that an ineligible person shall not be President. Article II does not distinguish between ineligibility prior to an election or after, a person failing to meet the requirements is at all times legally disqualified.
It is solely for the Judiciary to determine eligibility, and for no other Branch. To allow an ineligible person to remain in Office on the premise that the Legislature has not impeached would obstruct the purpose of Article II § 1, cl 5. Eligibility would be rendered meaningless, subject to the varying winds of political power. It would be a subversion of republican principles.
I went back a couple sections to get context. The link to section 17 is at http://www.law.cornell.edu/uscode/text/3/17 and you can go to the next section by changing the last number in that link to 18, and then to 19, etc.
Nowhere in there does it say that Congress determines whether the President elect is able to discharge the duties or qualified to be President. And in fact, Section 15 says that a state’s electoral votes may NOT be rejected unless both Houses of Congress agree that the votes have not been regularly given by properly-certified electors:
“and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified. “
IOW, if the state has certified its electors, Congress HAS to accept the votes.
Looking back to section 6, which gives the way that states have to certify their electors, it says (using a lot of words...) that the executive of the state is to list the electors and the numbers showing that those electors were properly chosen, AND if there are any controversies over which electors should be properly chosen the executive of the state is responsible to follow the state’s legal protocols to resolve those controversies and then communicate (certify to Congress) how those controversies were resolved. Here’s the text:
“and if there shall have been any final determination in a State in the manner provided for by law of a controversy or contest concerning the appointment of all or any of the electors of such State, it shall be the duty of the executive of such State, as soon as practicable after such determination, to communicate under the seal of the State to the Archivist of the United States a certificate of such determination in form and manner as the same shall have been made”
Keep in mind that if the state certifies the electors without pointing out unresolved controversies, Section 16 says that Congress HAS to accept those electoral votes. The place for controversies to be resolved is through the means that each State lays out for contesting the electors chosen. In Florida in 2000, the avenue was the courts. The specific question was over what the actual vote result was, but if somebody wanted to challenge the selection of those electors based on the fact that they were pledged to an ineligible candidate, it would presumably also go through the courts. It is NOT in the hands of Congress. Section 15 REQUIRES Congress to accept the electoral votes that are properly certified by a State. Congress can object and debate but in the end the statute says that they HAVE to accept the electoral votes if the State lawfully certified them.
But even if Congress DID have the power to reject a State’s electoral votes based on something like eligibility, Section 17 says that debate over an objection can last 2 hours, max. Congress has no more ability to force the production of citizenship records than you or I do. Yet in 2 hours they are supposed to determine whether somebody is Constitutionally eligible? They have no factual basis on which to make their decision.
Let’s say that Ted Cruz gets electoral votes. Somebody in Congress objects to the certification of those votes because they say he is ineligible. What then? Congress debates for 2 hours and then votes on what “natural born citizen” means? That flies in the face of all the principles of separation of powers and the duties laid out for each of the branches. Congress didn’t even try to do anything binding about the issue when they declared McCain eligible; they made it a non-binding resolution, meaning they all knew it was just a bunch of opinions that carry no legal weight whatsoever. Yet the decision of whether Arnold Schwartzneggar can be President would get 2 hours of bloviating by Congress and that would be all the protection we the people can get?
I don’t believe the Founders meant that, for a minute.
But the text of Section 15 makes it clear that Congress does NOT have the discretion to refuse a State’s electoral votes because they claim a candidate is ineligible. If eligibility is to be hashed out solely by the electoral vote, then the battle has to be carried out in the states, and most probably within the States’ judicial systems. Congress does NOT have the power to determine Presidential eligibility. It is NOT a “political question”.
There should be, but said transcripts would never see the light of day in our lifetimes.
There are many, many on both sides of the political isle that are chin deep in the continuing cover-up. Could you image if it was revealed that yes, in fact, eligibility was discussed in particular presidential cases (aside from John Bingham's 3x in the House of Rep's), and every Congress since the 111th has been ignoring/quite on the issue? Talk about cover-ups!