Posted on 12/23/2020 5:59:12 AM PST by LS
THere is no precedent for an election with massive coordinated fraud.
But a law cannot amend the Constitution.
The Constitution sets out a process.
I’ll agree that law will have an import on the decisions of the Members though. And not a good one.
“Can you show me where in US Constitution it says the presiding officer on January 6th has no power to decide which slate of electors is valid?”
The Constitution says the presiding officer *SHALL* open ^ALL* the envelopes of Electors.
“Shall” means just that: he has no discretion.
“VPOTUS could simply ignore certificates from a governor contrary to those sent by the legislature.”
No.
We have a Constitution.
That Constitution says he *SHALL* open *ALL* envelopes of submitted Electors.
“Shall” and “all” haven’t changed in meaning since our Founding LOL!
VP has NO discretion- maybe in your ‘living document’ world LOL!
BTW.
Though I’m disappointed in your refusal to even try to defend your blatantly false position here...
I want to tell you you’re in the right place to discuss the Constitution.
Welcome to Free Republic!
Gee, while I was making that other post.
How humbling...
But there’s no room for “implicity”.
SHALL MEANS SHALL.
A belief that the Founders did not foresee the state legislatures foisting off the execution of elections onto their Executives demeans the Founders political expertise and shows incredible ignorance.
we must never forget that it is a constitution we are expounding,
Are we missing the bigger picture?
That this election fraud was treason, and to carry it through to January 6th, including to preside over it, is to participate in the crime of treason?
There’s no ‘Napoleonic Code’ issue here. Obviously!
How can anyone equate a straight reading of the Constitution to civic law is unfathomable LOL!
Just whether the Constitution means what it says or not.
You say “not”.
(Which, like “shall” and “all” hasn’t changed in meaning since our Founding.)
LOL! You have NO ability to argue a point! Sure, it's easy to distract idiots, but it never works with those who aren't idiots.
"Shall"... "ALL"..., words even idiots can understand. So who are you appealing to- since even idiots know better?
[mrssmith at #62] But a law cannot amend the Constitution.
The Constitution sets out a process.
5 U.S.C. 15 is not in conflict with the Constitution and certainly no court has held it to be unconstitutional.
The two houses of Congress did agree on upon how to decide upon a slate of electors in a case of conflict. Congress passed the Electoral Count Act which became codified at 3 U.S.C. § 15.
The Presiding Officer opens the envelopes and passes them to the tellers. The tellers read the votes, count the votes, and deliver the tally to the Presiding Officer who announces the vote as tallied by the tellers.
Electoral Count Act of 1887, Pub.L. 49–90, 24 Stat 373 (3 Feb 1887)
https://www.loc.gov/law/help/statutes-at-large/49th-congress/session-2/c49s2ch90.pdf
FORTY-NINTH CONGRESS. Sess. II. Ch. 90. 1887.373
Feb. 3, 1887.
CHAP. 90.—An act to fix the day for the meeting of the electors of President and Vice-Presideut, and to provide for and regulate the counting of the votes for President and Vice-President, and the decision of questions arising thereon.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the electors of each State shall meet and give their votes on the second Monday in January next following their appointment, at such place in each State as the legislature of such State shall direct.
Sec. 2. That 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 the 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.
Sec. 3. That it shall be the duty of the executive of each State, as soon as practicable after the conclusion of the appointment of electors in such State, by the final ascertainment under and in pursuance of the laws of such State providing for such ascertainment, to communicate, under the seal of the State, to the Secretary of State of the United States, a certificate of such ascertainment of the electors appointed, setting forth the names of such electors and the canvass or other ascertainment under the laws of such State of the number of votes given or cast for each person for whose appointment any and all votes have been given or cast; and it shall also thereupon be the duty of the executive of each State to deliver to the electors of such State, on or before the day on which they are required by the preceding section to meet, the same certificate, in triplicate, under the seal of the State; and such certificate shall be inclosed and transmitted by the electors at the same time and in the same manner as is provided by law for transmitting by such electors to the seat of Government the lists of all persons voted for as President and of all persons voted for as Vice-President; and section one hundred and thirty-six of the Revised Statutes is hereby repealed; and if there shall have been any final determination in a State of a controversy or contest as provided for in section two of this act, 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 Secretary of State of the United States, a certificate of such determination, in form and manner as the same shall have been made; and the Secretary of State of the United States, as soon as practicable after the receipt at the State Department of each of the certificates hereinbefore directed to be transmitted to the Secretary of State, shall publish, in such public newspaper as he shall designate, such certificates in full; and at the first meeting of Congress thereafter he shall transmit to the two Houses of Congress copies in full of each and every such certificate so received theretofore at the State Department.
Sec. 4. That Congress shall be in session on the second Wednesday in February succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of one o’clock in the afternoon on that day, and the President of the Senate shall be their presiding officer. Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in
374
FORTY-NINTH CONGRESS. Sess. II. Ch. 90. 1887.
the alphabetical order of the States, beginning with the letter A; and said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from the said certificates; and the votes having been ascertained and counted in the manner and according to the rules in this act provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice-President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. 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. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; 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 three of this act 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. If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section two of this act to have been appointed, if the determination in said section provided for shall have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as have been appointed to fill such vacancy in the mode provided by the laws of the State; but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section two of this act, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its laws; and in such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State. But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the Executive of the State, under the seal thereof, shall be counted. When the two Houses have voted, they shall immediately again meet, and the presiding officer shall then announce the decision of the questions submitted. No votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of.
Sec. 5. That while the two Houses shall be in meeting as provided in this act the President of the Senate shall have power to preserve order; and no debate shall be allowed and no question shall be put by the presiding officer except to either House on a motion to withdraw.
375
FORTY-NINTH CONGRESS. Sess. II. Chs. 90,91. 1887.
Sec. 6. That when the two Houses separate to decide upon an objection that may have been made to the counting of any electoral vote or votes from any State, or other question arisiug iu the matter, each Senator and Representative may speak to such objection or question five minutes, and not more than once; but after such debate shall have lasted two hours it shall be the duty of the presiding officer of each House to put the main question without further debate.
Sec. 7. That at such joint meeting of the two Houses seats shall be provided as follows: For the President of the Senate, the Speaker’s chair for the Speaker, immediately upon his left; the Senators, in the body of the Hall upon the right of the presiding officer; for the Representatives, in the body of the Hall not provided for the Senators; for the tellers, Secretary of the Senate, and Clerk of the House of Represen tatives, at the Clerk’s desk; for the other officers of the two Houses, in front of the Clerk’s desk and upon each side of the Speaker’s platform. Such joint meeting shall not be dissolved until the count of electoral votes shall be completed and the result declared; and no recess shall be taken unless a question shall have arisen in regard to counting any such votes, or otherwise under this act, in which case it shall be competent for either House, acting separately, in the manner hereinbefore provided, to direct a recess of such House not beyond the next calendar day, Sunday excepted, at the hour of ten o’clock in the forenoon. But if the counting of the electoral votes and the declaration of the result shall not have been completed before the fifth calendar day next after such first meeting of the two Houses, no further or other recess shall be taken by either House.
Approved, February 3, 1887.
As I said above- no mere law overrules the Constitution.
Is he not the President of the Senate on January 6?
As I said above- no mere law overrules the Constitution.
While it is true that no mere law overrules the Constitution, with respect to the Electoral Court Act of 1887, it is obvious that your comment is irrelevant. Legally, until a court strikes down a law as unconstitutional, it remains enforceable. And the governing federal law for the last century and a half has not been ruled unconstitutional by any court. Indeed, as shown below, it was cited by three justices as good law in Bush v. Gore.
As Article 6 states, "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land."
From Bush v. Gore, 531 U.S. 98 (2000)
Justice Souter dissenting at 129:
The Court should not have reviewed either Bush v. Palm Beach County Canvassing Bd., ante, p. 70 (per curiam), or this case, and should not have stopped Florida's attempt to recount all undervote ballots, see ante, at 102, by issuing a stay of the Florida Supreme Court's orders during the period of this review, see Bush v. Gore, post, at 1046. If this Court had allowed the State to follow the course indicated by the opinions of its own Supreme Court, it is entirely possible that there would ultimately have been no issue requiring our review, and political tension could have worked itself out in the Congress following the procedure provided in 3 U. S. C. § 15.
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Justice Souter dissenting at 130:
The 3 U. S. C. § 5 issue is not serious. That provision sets certain conditions for treating a State's certification of Presidential electors as conclusive in the event that a dispute over recognizing those electors must be resolved in the Congress under 3 U. S. C. § 15.
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Justice Ginsburg dissenting at 143:
Equally important, as JUSTICE BREYER explains, post, at 155 (dissenting opinion), the December 12 date for bringing Florida's electoral votes into 3 U. S. C. § 5's safe harbor lacks the significance the Court assigns it. Were that date to pass, Florida would still be entitled to deliver electoral votes Congress must count unless both Houses find that the votes "ha[d] not been ... regularly given." 3 U. S. C. § 15. The statute identifies other significant dates. See, e. g., § 7 (specifying December 18 as the date electors "shall meet and give their votes"); § 12 (specifying "the fourth Wednesday in December"— this year, December 27—as the date on which Congress, if it has not received a State's electoral votes, shall request the state secretary of state to send a certified return immediately). But none of these dates has ultimate significance in light of Congress' detailed provisions for determining, on "the sixth day of January," the validity of electoral votes. § 15.
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Justice Breyer dissenting at 153-155:
The Constitution and federal statutes themselves make clear that restraint is appropriate. They set forth a roadmap of how to resolve disputes about electors, even after an election as close as this one. That roadmap foresees resolution of electoral disputes by state courts. See 3 U. S. C. § 5 (providing that, where a "State shall have provided, by laws enacted prior to [election day], for its final determination of any controversy or contest concerning the appointment of ... electors . . . by judicial or other methods," the subsequently chosen electors enter a safe harbor free from congressional challenge). But it nowhere provides for involvement by the United States Supreme Court.To the contrary, the Twelfth Amendment commits to Congress the authority and responsibility to count electoral votes. A federal statute, the Electoral Count Act, enacted after the close 1876 Hayes-Tilden Presidential election, specifies that, after States have tried to resolve disputes (through "judicial" or other means), Congress is the body primarily authorized to resolve remaining disputes. See Electoral Count Act of 1887, 24 Stat. 373, 3 U. S. C. §§ 5, 6, and 15. The legislative history of the Act makes clear its intent to commit the power to resolve such disputes to Congress, rather than the courts:
"The two Houses are, by the Constitution, authorized to make the count of electoral votes. They can only count legal votes, and in doing so must determine, from the best evidence to be had, what are legal votes ....
"The power to determine rests with the two houses, and there is no other constitutional tribunal." H. R. Rep. No. 1638, 49th Cong., 1st Sess., 2 (1886) (report submitted by Rep. Caldwell, Select Committee on the Election of President and Vice-President).
The Member of Congress who introduced the Act added: "The power to judge of the legality of the votes is a necessary consequent of the power to count. The existence of this power is of absolute necessity to the preservation of the Government. The interests of all the States in their relations to each other in the Federal Union demand that the ultimate tribunal to decide upon the election of President should be a constituent body, in which the States in their federal relationships and the people in their sovereign capacity should be represented." 18 Cong. Rec. 30 (1886) (remarks of Rep. Caldwell).
"Under the Constitution who else could decide? Who is nearer to the State in determining a question of vital importance to the whole union of States than the constituent body upon whom the Constitution has devolved the duty to count the vote?" Id., at 31.
The Act goes on to set out rules for the congressional determination of disputes about those votes. If, for example, a State submits a single slate of electors, Congress must count those votes unless both Houses agree that the votes "have not been ... regularly given." 3 U. S. C. § 15. If, as occurred in 1876, a State submits two slates of electors, then Congress must determine whether a slate has entered the safe harbor of § 5, in which case its votes will have "conclusive" effect. Ibid. If, as also occurred in 1876, there is controversy about "which of two or more of such State authorities.., is the lawful tribunal" authorized to appoint electors, then each House shall determine separately which votes are "supported by the decision of such State so authorized by its law." Ibid. If the two Houses of Congress agree, the votes they have approved will be counted. If they disagree, then "the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted." Ibid.
Given this detailed, comprehensive scheme for counting electoral votes, there is no reason to believe that federal law either foresees or requires resolution of such a political issue by this Court. Nor, for that matter, is there any reason to think that the Constitution's Framers would have reached a different conclusion. Madison, at least, believed that allowing the judiciary to choose the Presidential electors "was out of the question." Madison, July 25, 1787 (reprinted in 5 Elliot's Debates on the Federal Constitution 363 (2d ed. 1876)).
The decision by both the Constitution's Framers and the 1886 Congress to minimize this Court's role in resolving close federal Presidential elections is as wise as it is clear. However awkward or difficult it may be for Congress to resolve difficult electoral disputes, Congress, being a political body, expresses the people's will far more accurately than does an unelected Court. And the people's will is what elections are about.
Thanks for all those informative cites!
Yeah, relevance, is what the Houses decide it is, never mind the Constitution- which says they can make their own rules anyway.
and Merry Christmas to you!
Appreciate the cites.
Don't confuse a rump group of partisan legislators with "the state".
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