Posted on 09/08/2020 4:38:27 PM PDT by LS
There has been a lot of discussion, especially here on FR, in disjointed threads on other topics. Would some of you who have commented on this please weigh in here.
This is my understanding of the Constitution and Statutory Law that supports elections. *There is an "Election Day" stipulated in the Constitution. *States are on their own as to HOW they "certify" their electors *There is no Constitutional date given for when the electors must be certified. *In (I think) the 23rd Amendment the date for delivering the elector slates to the Joint Session of Congress to be counted (2 counters from each house) is now Jan. 6. Remember in the 1800s, due to transportation limitations, the date was early March. *Statute law has fixed Dec. 14 (this year) as the date by which the states must "certify" their electors. *The certified elector lists must be delivered to Chuck Grassley, the Pres of the Senate, on December 23.
As best I can tell, there is no penalty for NOT delivering an elector slate. The Founders (and everyone else, apparently) though it ludicrous that any state would voluntarily not take part in an election & deny its citizens the right to vote.
In Bush v. Gore, a 5-4 ruling held that FL could NOT recount statewide ballots because it would have missed the Dec. 12 (as I recall) deadline that year. The USSC ruled that it was a violation of the "one man, one vote" to only partially count and SINCE they couldn't count the whole state, Gore's partial recount was invalid.
The Supreme Court implied that the state can count up to the point of the Dec. 14 (12th in 2000) deadline.
What is NOT clear is, what if a state simply refuses to certify its count/electors and doesn't submit at all?
Some of you have argued that there is a "quorum" and the 270 number would be adjusted downward relative to the number of states that did submit. THIS SEEMS THE MOST LOGICAL CONCLUSION, GIVEN THAT IN THE ELECTION OF 1864 Congress only counted the votes of those states still in the Union; and 17 electoral votes from reconstructed parts of LA and TN voted, submitted electors, but were not allowed to be counted.
This seems to suggest that the "quorum" is not "all available states" but all states that submit electors. And while Congress has the precedent of not accepting some electors, it apparently has never forced a state to vote or submit electors. This it APPEARS that if, say, CA decided to withhold its electors, the quorum would drop by 55 electoral votes, and the number needed to win would drop to 191.
However, another interpretation is that ALL states must have their electors counted. I cannot find this in the Constitution or in Statute law.
Finally, it would seem that there would be a major constitutional issue from the citizens of such a state in that they would be denied their civil rights to vote due to the governor's/state legislature's decision to withhold a final count. Given the wordage of Bush v. Gore, it would seem this would be a big deal and that a state could NOT withhold its electoral count just to "tie up" the election.
As I say, neither the Founders nor almost anyone since ever dreamed of such venality that a state would try to tie up an election out of hatred for a president, but here we are. Comments and analysis welcome.
I don’t think you understand the difference between force and punish for noncompliance.
“Please explain how you force a state to submit electors.”
No cop can force you to drive the speed limit but they can punish you for not doing so. It is called ‘incentives’.
from this site: https://meaninginhistory.blogspot.com/
https://meaninginhistory.blogspot.com/
Sorry - it’s where you were quoted...
Read my original post.
There is NO punishment in the law or Constitution for failure to submit. A SoS may be fined $1000.00.
That’s it. So how do you force someone to do something without punishment?
(Cop example bad cuz you are trying to prevent people FROM doing something)
Sure do. Neither the Constitution nor the statute law has any punishment for withholding electors.
“Sure do. Neither the Constitution nor the statute law has any punishment for withholding electors.”
Not specifically, but other laws can kick in to hold them accountable.
Insurrection and sedition, for instance, do not specifically state ever single possible act, but you certainly can be held accountable to those laws.
Good luck.
Isn’t a court in the country that in this age would render a sedition verdict. ESPECIALLY when no specific charges can be brought on the action.
Again, if they fail to certify the electors then the process simply moves to the House and Senate with each picking the POTUS and VPOTUS respectively.
Each State will get to participate (just not in the EC aspect of it any longer) when the matter goes to the House and Senate. (see below)
...I cited the parts of the Constitution that shows the Electoral College requires a majority of appointed Electors, not a majority of *maximum possible* Electors.
You cited this...
The 12th amendment says "The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed..."
The "appointing" is done by Title 3 § 3. You're mistaking what it is saying.
Here is the rest of that which you didn't post...
You might also want to look at USC 3 which governs Presidential elections.
TITLE 3 — THE PRESIDENT § 3 - 5 are of major relevance. It isn't just the Constitution that is involved.
It doesn't say the State has to fill any vacancies, it says it may.
So here is what you didn't cite from Article II of the Constitution...
Article II Clause III (snip)
If you don't have enough (for whatever reason) of "a Majority" of those 538 votes (which would be the 270 required by law), the House and Senate decide the election.
By law, the state legislatures may directly appoint Electors to prevent their state from being absent from the Electoral College should it arise that chaos prevents the normal process of elections from determining a result.
-PJ
US Code is inferior to the Constitution via the supremacy clause in Article Vi.
Well I just showed you how Article II Clause 2 explains how electors are appointed!
Sections 3-5 in your citation describe filling vacancies after Electors have been appointed.
WHAT?!
§ 3. Number of electors
§ 4. Vacancies in electoral college
§ 5. Determination of controversy as to appointment of electors
Section 2 makes my case:
No, it doesn't.
...for the purpose of choosing electors...
Choosing electors isn't the same thing as appointing electors.
The State of * is appointed 2 electors. The State of * chooses Mr. Brown and Mr. Jones as electors.
That's making MY point!
By law, the state legislatures may directly appoint Electors to prevent their state from being absent from the Electoral College should it arise that chaos prevents the normal process of elections from determining a result.
Now you're contradicting what you JUST said. Again, choosing electors isn't the same thing as appointing electors.
I'm done.
-PJ
So back to the starting point...You have yet to state how the number of electoral votes needed to win an election can drop below 270.
The party slate of electors are not appointed in the Constitutional sense. They are state party insiders, mostly county chairs and precinct captains who were vetted by the party and the candidate to be included in the slate.
However, those slates are methods selected by the state legislatures in Article II Section 1 of the Constitution. It doesn't have to be that way, it's just the way 48 states have chosen to do it. The Constitution is agnostic to the way the legislature choose to do it, which is why the language of "appointing" is in the Constitution. It supersedes what the states do.
In Maine and Nebraska, where they appoint electors by Congressional district, you can't say that someone is appointed solely by being selected by the party because the whole slate does not go to the Electoral College. If Maine's CD-2 goes Republican while CD-1 and the state's popular vote go Democrat, only the Republican Elector from Maine CD-2 is appointed. You can't say that the entire Republican slate constituted appointment.
What if a state chose to make Electors individually elected in each Congressional district? First, would you agree that Article II Section 1 gives the state legislature the power to select the method such that candidates for Electors can run in each district as separate races? In this case, you might see three or four people in each district run for Elector. You cannot say that a person is appointed yet just because they are running, yet you are saying that by simply being on the candidate's designated slate.
Just for grins, would you say that Article II Section 1 allows state legislatures to decide to make the top citizen property taxpayer in each Congressional district an Elector? In this case, there are no elections, just direct appointments (there's that word again).
The electors aren't considered appointed until they win the election, either as a slate, as a separate Congressional district, as a race all their own, or by direct appointment by the legislature.
-PJ
This is as simple of an explanation as I can find...
The Electoral College
For example...What happens if Puerto Rico, or any of the other territories, becomes a State?
The number of apportioned electors increases because the formula is set!
It's not that hard to understand!
No twisting, no need to take the plain text of the Constiution out of context.
The number of apportioned electors increases because the formula is set!
The new electors are appointed to the new State by that formula.
I told you I would engage you as long as there are no ad hominems.
-PJ
‘will get you funny looks’ ... that was you after asserting that the poster was not using the proper definition of two terms. I’d say you like sneaky ad hom so you can claim you are above ad homs.
I told you I would engage you as long as there are no ad hominems.
Well, I'm sorry, but I don't know what else to think!
You're behaving in a manner that can only be described as being obtuse (slow to understand).
You claim I'm trying to twist words yet you've twisted words beyond recognition and even when I show proof of what you've done you go right back and use the words in the same twisted manner in which you had before.
Care to address my Puerto Rico example? Would those new electoral votes be appointed to the new State in accord to the Constitution and United State Code?
I guess we'll get to see if you are or aren't being intentionally obtuse.
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