Posted on 07/20/2021 4:51:15 AM PDT by Dr. Franklin
Challenges to the presidential electors for GA, MI, NV, and WI all failed when the House members making the objections failed to gain the support of a single U.S. Senator. Together these states comprised 48 EV, which was more than enough to flip the election result. But what if a duly elected U.S. Senator was unable to participate in that process because a fraudulent pretender was wrongfully certified in his/her place? Would that make the entire Jan. 6-7th certification of Joe and Ho's "victory" null and void in either a quo warranto action, or reopening of that certification by Congress?
As I see it, the "failure to qualify" provision of the 20th Amendment can't be based on some arbitrary decision in a political or legal process that isn't already in place under the Constitution and/or Federal law. In other words, Congress doesn't have the authority to simply decide on January 6th (for example) that Joe Biden doesn't qualify to be the President because someone in Congress (or the Vice President, acting as presiding officer over the joint session) says so. Rather, the "failure to qualify" can only be established AFTER the Article II and 12th Amendment process has played out. One scenario that might apply here would be where the electoral vote in December produced no majority for any presidential candidate (suppose the Libertarian or Green candidate won a handful of swing states, for example), the presidential election was passed to the House under the 12th Amendment, and at the January 6th session of Congress the House vote for President ended in a tie. That is certainly not outside the realm of possibility when you have an even number of states, and/or you have state House delegations that are split evenly between Democrat and Republican representatives.
As it relates to what I just posted, I don't dispute this except insofar as what exactly it means for Congress to "invoke" the 20th Amendment. I don't see the 20th Amendment as a mechanism for Congress to simply decide arbitrarily that a candidate "fails to qualify" for President.
I must agree with Political Junkie Too. The Twentieth Amendment provides for a "caretaker" president should the electoral vote count hang for some reason.
I don't disagree with that. My contention here is about how we define a legitimate reason for the electoral vote to be inconclusive.
All of the confusion comes from state legislatures passing the buck to state executive branch officials to certify election results. The state legislatures have simply shirked their constitutional responsibility in this regard. It is certainly more reasonable to demand that they concur or object to the certification of presidential electors to end any needless confusion and delay.
That's an interesting perspective. If the legislatures have "shirked their responsibility" by having executive branch officials certify election results, then doesn't this mean that those responsibilities have effectively been "shirked" as soon as a legislature passes a statute that says the presidential electors are to be determined by popular vote?
In other words, what's the difference between having the legislature certify the result of a popular election for presidential electors and having the legislature appoint the electors directly? (I don't think this would be a bad thing, by the way.)
It requires a 2/3rds vote to expel a member, not a simple majority. You are ignorant of the basics.
Being stupidly optimistic, expecting things to happen that simply can’t doesn’t accomplish anything either. Be smart and realistic enough to know when a battle is lost and it is time to prepare for the next battle so you can actually win.
.the “cure” cannot be managed from the base of government. A corrupted election essentially means the country is not governed.
We the People create the government by means of our votes through the elections process. When both the elections process is corrupted, as well as the voting process, ONLY WE THE PEOPLE can correct that. There IS NO government entity that can possibly do so
Where is it different in the Constitution? Article section and clause.
Since the 12th amendment did away with separate voting for President and Vice President, and the 20th amendment contains language for what should happen if either the President-Elect, Vice President-Elect, or both, should "fail to qualify," I don't see how your scenario might result in one, but not the other, failing to qualify. Yet the language is there in the Constitution for it to happen.
My larger concern is about the nature of the parties. When an ambiguity like this exists in the Constitution and the law, it is the nature of the Democrats to push it as hard as possible to drive the "untested waters" to the outcome most desirable to them.
When Republicans are in the same situation, they talk themselves out of doing anything for fear of the "worst case scenario," or they make the most burdensome arguments as reason for not testing the waters themselves.
This is why the Democrats always win and Republicans always lose. Democrats always put the ball in play to see what happens in an uncertain situation, and Republicans refuse to play because they prematurely convinced themselves that they will lose.
-PJ
I do.
In it's plainest meaning, it would mean that it was discovered that a candidate was younger than 35, not a resident for 14 years, or not a natural born citizen, since those are the only qualifications cited in the Article II.
US Code Title 3 lays out the January 6 procedure. If state legislature make an appeal to Congress that their Electoral College results are tainted by fraud, then it behooves Congress to listen to them.
Title 3 has language about how to deal with conflicting Electoral College votes vs. the intent of the state legislatures, so "failure to qualify" (in this case) would mean that enough states have declared their results to be invalid that the January 6 result is uncertain.
One interpretation of this may be that the 12th amendment says that the President is the person who receives a majority of the votes cast, not a majority of the possible votes cast. In this case, the invalid Electoral College votes are simply discarded and the candidate who wins the majority of the remaining votes becomes President.
The alternative interpretation (which I do not support) is that the 270 threshold is absolute, the discarded Electoral College votes don't lower the threshold, no candidate reaches 270, and the House of Representatives decides.
The reason that I discard the latter scenario is that at the time of the 12th amendment, two-party elections had not yet become the norm. Having the Electoral College vote split between three or four people was much more likely then than now, meaning that nobody reaching the 50%+1 threshold was more possible than now. In today's world, finding us in a 269-269 tie is so rare as to make tossing the election to the House almost unthinkable.
That's why I think the 20th amendment is relevant now. It is a final backstop against a fraudulent election where the results are rigged. A modern definition of "failure to qualify" would be when the President-elect was incorrectly selected by the Electoral College due to massive fraud committed by the Electoral College or by the processes that selected the Electoral College.
Just as how the states have plenary power to decide the method of choosing Electors, Congress has plenary power to declare what "failure to qualify" means. And what comes with plenary power is the wisdom and consent of the governed to exercise it. If the fear is of a tyrannical Congress that declares all opposite party candidates to have failed to qualify, the people would not support that abuse of power. But if the states methodically prove that a coordinated, systemic plot to undermine election integrity resulted in the wrong candidate winning, I believe the people would support Congress using whatever constitutional tools are at its disposal to correct the situation.
-PJ
I understand your point about the differences between the ways Democrats and Republicans approach these situations. I don’t necessarily think the GOP operates the way they do out of fear or timidity. They just tend to be wiser about many things and understand the broader implications of pushing the limits in government. As a wise man once said: “Don’t take down a fence unless you understand why it was put there in the first place,”
I posted the following in GAB last night. I want to credit you for the analysis of the ‘unqualified’ resident and VP due to fraud, and the Constitutional solution as a result.
Well, AZ Legislature needs to declare the 2020 Federal election UNLAWFUL due to fraud. Then Trump needs to concede in order for the next step. When he concedes he bears damages from the fraud. This allows him to file a quo warranto motion (by what authority challenge in civil court to remove any federal officer) against the AZ Senators elected in the runoff election that came about as a result of an UNLAWFUL election. Fraud vitiates everything (everything goes back to square 1).
Normally the state governor can replace a ‘removed’ Senator, but it’s possible he is part of the cause of the fraud, and the Senate just might decide to leave the AZ seats empty until AZ can show a properly audited election. Now Trump can turn to resident Biden and Kamala Harris and make a quo warranto case against both of them as ‘unqualified’ due to an UNLAWFUL election, undiscovered until after the Presidential Inauguration.
Now, the US Constitution addresses what happens when a President-elect AND / or VP-elect fails to qualify, and the statute of limitations are unforgiving to perpetrators of fraud. And that procedure leaves Pelosi out of the chain of Presidential succession. It leaves the Senate 2 Democrats short, with the AZ House Reps seated from AZ in the last Fed election on the chopping block.
I would hope the patriots in Congress get the message, and direct AZ to pass an audit separate from a recount before their elected Congresspersons will be seated. Kinda like what they did to the Confederate states after the Civil War.
Article 1, section 5 clause 2 says it take a 2/3rds vote to expel a member. I can’t find where it says anything about removing a member with a simple majority. My Constitution doesn’t have a section 5 in article IV; it stops at section 4. Is the simple majority rule in that missing section? I think that wasn’t ratified, except maybe in your head.
That is after a trial in Congress. But fraud vitiates everything, putting the member in question at a state before they were sworn in, so a declaration by state Legislature of fraudulent election and quo warranto motion referencing the fraud should be sufficient. They don't have the authority to present themselves for induction into Congress. So Congress only needs to pass a resolution and ignore them until the election is corrected.
IANAL - I am not a lawyer. But we all need to be Constitution literate because our kids need to be able to read it as well. Note that the US Constitution is written in script, which is no longer being taught in schools. Thank you Dr Franklin!
That’s exactly the scenario that would be applicable to the January 6th certification process.
It’s instructive to read the public statement Sen. Tom Cotton (I think) released in early January to explain why he would not vote to support any move to disqualify electors. He noted that the January 6th session was designed to address disputed electoral votes, but pointed out that none of the electoral votes sent to Congress met any objective definition of “disputed” because no legally designated representative or governing body from a single state had submitted anything to Congress documenting any kind of objection to that state’s electoral votes.
You guys keep chanting “fraud vitiates everything” like it is a mantra, but we are in uncharted territory with these claims. Ultimately this is a political question with a SCOTUS that did everything they could to avoid the question and a House and Senate that are nominally controlled by Democrats who won’t give up any power willingly, and rightfully or not, the White House with all its levers of power, is controlled by Biden. Let’s not forget the much of the military’s leadership is good with this; the intelligence agencies, particularly the CIA and FBI are complicit in the fraud; and most bureaucrats in the government machine are sympathetic to the current power structure.
The only peaceful way to turn this around is if the states reassert their constitutional powers and take back control from the Feds. Solving the electoral integrity issues is one step in that. I really think the next step after that is an Article 5 convention of the states. The Presidency has too much power; that comes from Congress delegating too much to the executive; that comes from Congress assuming too much power and influence into the hands of too few people.
The 2020 elections are over but the truth can still sway hearts and minds of the people to our side.
Apparently we are in charted territory as you do not show a failure in the analysis, nor for the peaceful resolution found in our Constitution.
But your 'Convention of States' keeps all the bad players in play, where my suggestions remove them from being able to do more damage, say, like Schiff and Pelosi. The major concern comes from the requirement a state declares an UNLAWFUL election due to fraud before losing the representatives in the 2020 election. And hopefully Congress will insist on a successful audit (beyond a recount) before restoring that state's representation rights.
But you don’t get to just take them out of play. Your suggestion is self contradictory. Congress will not insist on a successful audit when the question is who is Congress.
Pelosi, Schiff, Schumer, Biden, Harris, et al are in the power positions and they won’t give up willingly. The system will protect the status quo so we have to find a peaceful way around the system.
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