Posted on 11/18/2020 12:37:17 PM PST by PJ-Comix
Perhaps the wrong question is being asked about whether state legislatures can choose Trump electors because of evidence widespread of fraud in their elections where Biden supposedly "won." The better question might be can state legislatures just DECLINE to send electors to the electoral college due to evidence of widespread fraud which has not been resolved by the time they need to be sent?
Let us take Georgia as an example. In the light of fraud and the REFUSAL by the Secretary of State to allow a full audit of the ballots, can the state legislature state that since the issue has NOT been resolved as to fraud, they cannot determine the true winner and therefore DECLINE to send any electors to the electoral college?
This would also apply to the states of NV, AZ, PA, MI, and WI.
um NO
The state should adequately and honestly address any questions of fraud and then send the appropriate slate of electors. If the fraud cannot be addressed or resolved without a disproportionate disenfranchisement of voters (I’ll leave it to the courts and precedent to determine what ‘disproportionate’ means, for now) then the state should punt.
What if in 2016, Trump lost Pennsylvania (20 EV) and Wisconsin (10 EV)? That would have made the Electoral College 276-262, and Trump would still have won.Now suppose that Michigan (16 EV), which Trump won 47.6% to 47.4%, politically chose to delay certifying the vote and not send their Electors to the Electoral College. This would have made the Electoral Vote 262-260 Clinton in an Electoral College with only 522 appointed Electors. The threshold to win would have been a majority of APPOINTED Electors, or 262 votes cast.
Clinton would have won in 2016 in this scenario, because Michigan chose to withhold their 16 Trump Electors from participating in the Electoral College.
3 U.S. Code CHAPTER 1—PRESIDENTIAL ELECTIONS AND VACANCIES is full of references to "appointed" Electors, which is being consistent with the Constitution.
If a state chooses to withhold appointment of Electors in order to influence the outcome against the vote of the people, how would that action be perceived?
-PJ
Just be looking at the size of the public gatherings at the state capitols and the caravans to DC, I think you are wrong.
I would hope the answer is never.
I would hope the court would say that this very scenario is spelled out in US Code Title 3 Chapter 1 §15 and would step back and let Congress sort it out according to established federal law.
-PJ
A guy I work with is fond of saying "Hope is not a strategy". It's one thing if a court ruled that vote fraud was so massive as to throw the whole election into question. It's quite another for the Republicans in the legislature to decide that on their own. No court is going to sit back and allow the legislature to ignore the law in place at the election and appoint their own electors.
>Just be looking at the size of the public gatherings at the state capitols and the caravans to DC, I think you are wrong.
They only get a say by taking back the power they delegated to the state legislatures by the Constitution.
And, wrong.
Politically, they need just enough evidence for doubt about the voting. And if you are really sure all those Republicans are from partly Dem districts, then they need just enough evidence to be able to sell it to the squishy.
In both cases, far far below what a court requires.
Andddd just looked at Wisconsin. Overwhelming majority Republican. You could let a few do a Collins and still send Trump Electors to the College, with total impunity.
-PJ
Because there is already a slate of electors chosen, by the voters, according to law. The legislature would be acting contrary to the law by appointing a second slate. It's one thing if a court says that's the option they should follow. It's another thing for them to do it just because the decided to. No court is going to allow that. It opens up a scenario where any legislature in any state could override the election just because they don't like the results.
We have been discussing this in some depth on the Arizona Board. I was emailed a copy of a memo from the AZ Legislature’s Legal Council (I am NOT the Representative it was addressed to):
ARIZONA LEGISLATIVE COUNCIL MEMO
November 12, 2020
TO: Representative
FROM: , General Counsel
RE: Selection of Presidential Electors (R-54-142)
This memorandum is in response to your questions about the appointment of
presidential electors and the ability of the legislature to change this process for the current presidential election.
In regard to presidential electors, the United States Constitution provides:
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.
U.S. Const. art. II, § 1, cl. 2.
Under this authority, the legislature may select the presidential electors, it may
allow the voters to select the presidential electors and it may change how the electors are selected. McPherson v. Blacker, 146 U.S. 1, 35 (1892); Bush v. Gore, 531 U.S. 98, 52930 (2000). However, the constitution provides that Congress determines the time of choosing presidential electors. U.S. Const. art. II, § 1, cl. 3. The Court in McPherson and Bush did not address this Congressional authority because it was not an issue in those cases.
Under its constitutional authority, Congress has directed that “[t]he electors of
President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.” 3 United States Code § 1.
The Arizona legislature has prescribed the method of appointment of presidential electors for this state by enacting several statutes, including Arizona Revised Statutes(A.R.S.) section 16212, which provides in part:
A. On the first Tuesday after the first Monday in November, 1956,
and quadrennially thereafter, there shall be elected a number of
presidential electors equal to the number of United States senators and
representatives in Congress from this state.
B. After the secretary of state issues the statewide canvass
containing the results of a presidential election, the presidential electors of
this state shall cast their electoral college votes for the candidate for
president and the candidate for vice president who jointly received the
highest number of votes in this state as prescribed in the canvass.
The statutes also provide that the chair of the state committee of each political
party that qualifies for a column on the general election ballot must appoint the
candidates for the office of presidential elector for the respective political party. A.R.S. section 16344.
To change how presidential electors are appointed, the legislature would have to
amend these statutory sections. However, the changes that the legislature might make to these statutes could not be applied to the current election, because the day for selecting presidential electors (November 3, 2020) has passed.
The current statutes on the selection of presidential electors were in effect on
November 3, 2020 and the people voted pursuant to statute to make the selection on that date. If there is a question about the conduct of the election, the election would have to be challenged in the courts. The legislature cannot change the 2020 election results through changing the statutory selection process for presidential electors.
This was followed up with a further opinion:
Representative ,
You are correct, the legislature does not have a role in certification of election results. The secretary of state, in the presence of the governor and attorney general, canvases the votes for the presidential electors. A.R.S. sec. 16-648, sub. A. A.R.S. sec. 16-212 provides:
B. After the secretary of state issues the statewide canvass containing the results of a presidential election, the presidential electors of this state shall cast their electoral college votes for the candidate for president and the candidate for vice president who jointly received the highest number of votes in this state as prescribed in the canvass.
Therefore, the legislature has no role in certifying the election results for presidential electors (or any election.)
Even if the legislature wanted to get involved in the certification process, I think it is prohibited from doing so by the Separation of Powers provision of the state constitution. Canvassing the vote and certifying the canvas appear to be executive functions, because they involves executing the law enacted by the legislature.
Sorry this is so long. There are also constitutional arguments to allow them to act as there have been rulings supporting the supremacy of the legislature. If they do act, the margin is so close, with lots of RINOs and McCainiacs, we would run the risk of them appointing the Biden electors. Not sure of the statutes in other states. Any way we go, it will end up in court.
Federal law anticipates the possibility a state will fail to send electoral ballots
https://www.law.cornell.edu/uscode/text/3/12
When no certificate of vote and list mentioned in sections 9 and 11 of this title from any State shall have been received by the President of the Senate or by the Archivist of the United States by the fourth Wednesday in December, after the meeting of the electors shall have been held, the President of the Senate or, if he be absent from the seat of government, the Archivist of the United States shall request, by the most expeditious method available, the secretary of state of the State to send up the certificate and list lodged with him by the electors of such State; and it shall be his duty upon receipt of such request immediately to transmit same by registered mail to the President of the Senate at the seat of government.
https://www.law.cornell.edu/uscode/text/3/13
When no certificates of votes from any State shall have been received at the seat of government on the fourth Wednesday in December, after the meeting of the electors shall have been held, the President of the Senate or, if he be absent from the seat of government, the Archivist of the United States shall send a special messenger to the district judge in whose custody one certificate of votes from that State has been lodged, and such judge shall forthwith transmit that list by the hand of such messenger to the seat of government.
https://www.law.cornell.edu/uscode/text/3/14
Every person who, having been appointed, pursuant to section 13 of this title, to deliver the certificates of the votes of the electors to the President of the Senate, and having accepted such appointment, shall neglect to perform the services required from him, shall forfeit the sum of $1,000.
Then there is the point that even if sent, Congress may reject. https://www.law.cornell.edu/uscode/text/3/15
The Senate decides objections. If a state sends two slates of electors, the slate sent by the legislature is the one counted, IF THE LAW IS FOLLOWED.
There is no remedy if the law is not followed, and Congress is a lawless body.
Can’t happen. The constitution guarantees REPUBLICAN, not DEMOCRAT.
“The United States shall guarantee to every State in this Union a Republican Form of Government ...”
But a guarantee from the US government is worthless.
Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.
Couple this with § 5.Determination of controversy as to appointment of electors:
If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.
If court challenges persist beyond the safe harbor date, then what? What if the PA Supreme Court behaves like the Florida Supreme Court and starts making ad hoc rulings against Trump that are not consistent with laws enacted prior to the election? What if a series of rulings shows a partisan bias that belies the facts presented to the court?
If a state legislature decides that §5 has not been met and offers its own slate, wouldn't a court (perhaps the Supreme Court) recognize, at this point, the state legislature's Article II Section 1 power as codified in US3 Chapter 1 §5 to let Congress sort it out?
-PJ
In the instances you’ve outlined it takes, by your admission, a court decision to override the law. That is not the case so far. Every challenge Trump’s campaign have filed so far have either been withdrawn or else they’ve been thrown out. So I’ll repeat my belief, absent a court order invalidating the election then there is no way a legislature’s slate appointed in violation of the law. And I don’t see a court throwing out an entire election. So agree or disagree, I don’t care. We’ll find out one way or the other December 14th.
And what if the US Supreme Court does exactly that?
What if they don't? Trump's team is batting zero so far. Unless they get a lot better really quick I don't see anything for the Supreme Court to take up.
Thank you!
They give two reasons: (1) they were bullied before, which is a weak argument; and (2) they were promised a full audit for their votes and that promise won't be delivered--a slightly better argument. I have no idea whether they are allowed to rescind their votes once the meeting is over, but my bet is they probably can't any more than a Congressman can, or you or I can. My suspicion is that they know this, and this is empty virtue-signaling to make it up to Republicans.
I've read elsewhere that the Dems on the board are saying it's too late and that the vote has already been certified. Again, I have no idea whether that is true or whether it is reversible.
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