Procedurally, you are correct. However, your assertion that the Supreme Court WOULD NOT be able to determine as a fact-finding matter that a President-Elect did not qualify for office is FACTUALLY incorrect.
If a petition for quo warranto were brought PRIOR to the count of Electoral Votes in Congress, the courts would likely reject the petition out of hand due to lack of ripeness. Therefore, the counting would necessarily have to have been concluded before the submission of a petition of quo warranto.
Let us assume there is a [presumably] winning candidate with at least 270 votes in the general election. Let us further assume that there is a question as to whether he [or she] is a natural-born citizen:
The procedure for the counting is as follows:
United States Code
Title III
§ 15. Counting Electoral Votes In Congress
”Congress shall be in session on the sixth day of January 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 1 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 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 according to the rules in this subchapter 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 6 of this title 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 5 of this title 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 5 of this title, 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 law; 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.”
The United States Code does not SPECIFICALLY describe an objection to the qualifications of a Presidential Candidate. However, it does describe the method of objection to Electors. Presumably, an objection to the legitimacy of Electors could be made upon the basis of the [lack] of qualification of a particular candidate.
ASSUMING that a candidate WAS certified by Congress as the President-Elect, a petition for quo warranto could then be made in the following manner:
District of Columbia Code
Division II. Judiciary and Judicial Procedure
Title 16. Particular Actions, Proceedings and Matters.
Chapter 35. Quo Warranto.
Subchapter I. Actions Against Officers of the United States.
§ 16-3501. Persons against whom issued; civil action.
”A quo warranto may be issued from the United States District Court for the District of Columbia in the name of the United States against a person who within the District of Columbia usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred by the United States or a public office of the United States, civil or military. The proceedings shall be deemed a civil action.”
§ 16-3502. Parties who may institute; ex rel. proceedings.
”The Attorney General of the United States or the United States Attorney may institute a proceeding pursuant to this subchapter on his own motion or on the relation of a third person. The writ may not be issued on the relation of a third person except by leave of the court, to be applied for by the relator, by a petition duly verified setting forth the grounds of the application, or until the relator files a bond with sufficient surety, to be approved by the clerk of the court, in such penalty as the court prescribes, conditioned on the payment by him of all costs incurred in the prosecution of the writ if costs are not recovered from and paid by the defendant.”
§ 16-3503. Refusal of Attorney General or United States Attorney to act; procedure.
”If the Attorney General or United States Attorney refuses to institute a quo warranto proceeding on the request of a person interested, the interested person may apply to the court by certified petition for leave to have the writ issued. When, in the opinion of the court, the reasons set forth in the petition are sufficient in law, the writ shall be allowed to be issued by any attorney, in the name of the United States, on the relation of the interested person on his compliance with the condition prescribed by section 16-3502 as to security for costs.”
If the Attorney General or the United States Attorney refuse to institute a quo warranto proceeding, then the petition may be brought before the Federal Court. If the Federal Court refuses to act, an IMMEDIATE appeal can be made to the Supreme Court. If the Supreme Court ACCEPTS the petition for quo warranto, then it will remand it BACK to the Federal Court for a hearing. Presumably [no matter which way the Federal Court ruled], a DIRECT appeal would be made to the Supreme Court for a FINAL decision.
Now, chances are that such a hearing would extend beyond the January 20 constitutionally-mandated Inauguration Day – so it would be likely that the 20th Amendment [paragraph III] would be invoked. On that day, neither a President-Elect or [possibly] a Vice-President Elect would have qualified [since they run as a single ticket]. Therefore, the Speaker of the House of Representatives would act as President until either a President-Elect or Vice-President Elect will have qualified.
Amendment 20 - Presidential, Congressional Terms. 1/23/1933.
”3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or 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.”
And, from: United States Code:
Title III
§ 19. Vacancy In Offices Of Both President And Vice President; Officers Eligible To Act
”(a)”
”(1) If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.”
”(2) The same rule shall apply in the case of the death, resignation, removal from office, or inability of an individual acting as President under this subsection.”
”(b) If, at the time when under subsection (a) of this section a Speaker is to begin the discharge of the powers and duties of the office of President, there is no Speaker, or the Speaker fails to qualify as Acting President, then the President pro tempore of the Senate shall, upon his resignation as President pro tempore and as Senator, act as President.”
”(c) An individual acting as President under subsection (a) or subsection (b) of this section shall continue to act until the expiration of the then current Presidential term, except that – “
”(1) if his discharge of the powers and duties of the office is founded in whole or in part on the failure of both the President-elect and the Vice-President-elect to qualify, then he shall act only until a President or Vice President qualifies; and”
”(2) if his discharge of the powers and duties of the office is founded in whole or in part on the inability of the President or Vice President, then he shall act only until the removal of the disability of one of such individuals.”
”(d)”
”(1) If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is no President pro tempore to act as President under subsection (b) of this section, then the officer of the United States who is highest on the following list, and who is not under disability to discharge the powers and duties of the office of President shall act as President: Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary of Housing and Urban Development, Secretary of Transportation, Secretary of Energy, Secretary of Education, Secretary of Veterans Affairs, Secretary of Homeland Security.”
Citing the quo warranto provision of the judicial code does not address the question.
I could similarly cite the code provisions authorizing the convening of grand juries and the issuances of indictments for criminal offenses.
But that doesn’t mean that the provision authorizing the issuance of indictments by grand juries applies to a crime committed by the president.
Under the Constitution, only the Congress can prosecute a crime (assuming it is a high crime or misdemeanor) against a sitting president.
So the question of whether a federal court has the power under the Constitution of issuing an order that a president-elect is not qualifed to take office is not answered by merely citing the existence of a quo warranto provision in the code.
The question remains as to whether the Joint Session of Congress referred to in the Constitution is the determiner of qualification of a president-elect. To my mind, the better answer is yes, based on the architecture and language of the Constitution.
I recognize this may prove inadequate. The impeachment and conviction power of the Congress proved inadequate in the case of a sitting president who committed the crimes of perjury and obstruction of justice in a civil suit against him for sexual harassment.
Where the Congress is composed of supporters of the president and spineless members of the other party, there is no adequate remedy for the people for a corrupt or fraudulent president.
I don’t have a better answer than the one the framers came up with. Like them, I would be reluctant to place in the hands of judges the power to decide who should be president or to remove a president.
And before anyone mentions Bush v Gore, that was a completely different set of constitutional issues.