You mentioned the challenge to Florida votes, and in 2004, Kerry was the senator (of a Senator/Rep pair) who contested Ohio's electoral ballots.
As for the permitted basis (or, if more than one, bases) for challenge, Congress must have the authority to review the winner for satisfaction of qualifications, otherwise the qualification requirements in the constitution are moot as unreviewable and unenforceable. Yet the constitution assigns Congress the duty of deciding which candidate will be seated as president.
US Const., 20th Amendment: ... if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.
The statutory embodiment is in 3 USC 15 - Counting electoral votes in Congress
Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received.That objections are assigned to states is relevant only in that electors of some states may cast unobjectionable electoral votes. You may be wondering about the following "limitation" in the same section of law:
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 rejectedThe point of that is to facilitate determining which electoral votes will be tallied, when a state provides more than one set of electors or otherwise creates confusion as to the state's will. But legitimacy of a vote is not the same as qualification of a candidate. People could and did vote for the party that would have had Eldridge Cleaver as president. You can write in "Mickey Mouse," and in theory, an elector could likewise cast an electoral vote for Mickey Mouse. It is up to Congress to decide whether the winner of the election is qualified; and that is a different inquiry from whether the ballot represents the voter's or elector's decision.
See 3 USC 19 - Vacancy in offices of both President and Vice President for the situation of disqualification.
Thanks for the links. Those are helpful.
I’m not seeing where the Constitution gives Congress the right to decide who will be seated, but only in determining who won the electoral vote - except in cases where both the Pres and VP elect have failed to qualify.
After the winner is declared by Congress, the President elect and Vice President elect can still “fail to qualify”. The Constitution doesn’t specifically state who determines whether they failed to qualify, but the failure to qualify can happen independently of Congress’ certification of the electoral winner so I don’t think it should be assumed that Congress has that power - especially since it would require interpreting and applying the term “natural born US citizen”, and Article III specifically gives the judiciary the job of interpreting and applying the Constitution to specific cases.
It’s been a while since I looked at the vote-counting statute. I’ll look at it after I post to check for sure, but I thought there was a stipulation about the counting being completed in one day. Am I imagining that? I’ll have to check that out. If electoral votes were contested on grounds of Constitutional ineligibility it would require a judicial decision because each state is responsible for its own election and it would be members of Congress pitted against a state SOS claiming that the candidate was eligible (although actually a bunch of the SOS’s claim that they have to accept a candidate on the ballot if certified as eligible by the political party).
Let me ask you this. If members of Congress had contested, say, California’s electoral votes because the Keyes case was still pending, how should the rest of the story go? What should have happened from there, on the day the electoral winner was supposed to be certified and the days and weeks afterward?
OK. I was mistaken; it doesn’t say the process has to take place within the day. It gives no deadline. And actually if I had been thinking straight I would have realized that the 20th Amendment provides for the possibility that Congress may not have decided who the electoral winner was by Jan 20th, so that obviously shows the process can take a long time.
As you say, if nobody can review and enforce the Constitutional requirements, those requirements are moot. That seems to be what the after-birthers claim: that the requirements are moot because the Constitution never says who enforces them, by what standard, or how. If the requirement is in the Constitution, the authors of the Constitution obviously believed they gave somebody the authority to enforce it.
My inclination is to believe they thought the judiciary was given that responsibility, since the judiciary is to settle all cases arising from the Constitution or laws. It could be that Congress has the right to bring up objections - which would be one way for a “case” to arise, with the judiciary ultimately deciding that case.
So maybe it’s both. Maybe Congress has the ability to contest the electoral vote by bringing a case. But I don’t think that means that Congress is the ONLY entity which can bring a case, or that Congress can ultimately decide the case.
Does that make sense?