Posted on 12/29/2020 1:36:40 PM PST by mbj
[Read the original - it has much better formatting.]
(Article was updated: December 29, 2020)
Governors and state administrators have trampled upon the exclusive constitutional power of state legislatures to decide the manner of selecting presidential electors
In late November, I wrote on these pages that “the Founding Fathers made a wise and prescient choice in setting up the Electoral College and vesting the state legislatures with exclusive authority to decide upon a state’s presidential electors. The multifaceted fraud issues that infect national elections (especially this one) aren’t easily and timely raised within the tight contours of a judicial ‘case or controversy.’”
Later, I wrote that lawmakers in the six swing states still in dispute—Wisconsin, Michigan, Pennsylvania, Georgia, Arizona, and Nevada—should adopt “reclamation resolutions” reclaiming their exclusive constitutional power under the Electors’ Clause (Article II, Section 1) to decide the “manner” by which their states choose presidential electors.
I argued that, absent such formal resolutions putting the two sets of “dueling electors” on equal footing—each of the six swing states and New Mexico saw Biden and Trump electors cast votes at the Electoral College—“objections” to the Biden-pledged electors (formally certified by those states’ governors) would never pass both houses of Congress at the Jan. 6 joint session of Congress.
That the objections to the Biden electors wouldn’t pass both houses was a given, in light of the Democratic majority in the House, and the cowardice so far shown by most GOP senators, “led” by Senate Majority Leader Mitch McConnell (R-Ky.), who has abandoned President Donald Trump (not to mention any semblance of principles) despite the irrefutable evidence of massive voter fraud.
However, the six swing state legislatures won’t meet at a regular session until after Jan. 6, and they can’t be called into an earlier special session without the say-so of the governors (all of whom are Democrat other than Georgia’s Brian Kemp and Arizona’s Doug Ducey). Unelected secretaries of state and election officials (who are nothing but Democratic operatives) have certified their fraudulent election results without consulting state lawmakers.
Thus, to adopt the reclamation resolutions I proposed, the lawmakers would somehow have to overcome their inability to call a special session without gubernatorial intervention, and then act in contravention of state law (though in compliance with the Constitution) in asserting their right to override the fraudulent “certified” election results and appoint Trump-pledged electors. Lawsuit Contends State and Federal Statutes Disenfranchising the State Lawmakers Are Unconstitutional and Void, as Applied
Given this constitutional crisis, on Dec. 22, lawyers for the Amistad Project of the Thomas More Society brought a lawsuit in the federal district court for the D.C. Circuit, making the case that the electors clause of the Constitution grants each state’s legislature the “exclusive and non-delegable” power and duty to determine the manner of selecting the state’s presidential electors.
That is, federal and state statutes relating to the Electoral College have shifted the power to decide the “manner” of choosing a state’s presidential electors from the legislative branch of the state’s government to the executive branch (i.e., the governors) and even un-elected administrative officials (e.g., the secretary of state).
For example, federal statutes—namely, 3 U.S.C. Sections 5 and 6—establish a process where, in contrast to the exclusive power being vested in the state legislatures as mandated by Article II of the Constitution, presidential electors are designated by the governor, following a popular vote, without any post-election certification by the legislature of the state. Most state statutes follow this process. That’s why we see so many news articles reporting that the legislators of six disputed swing states claim there was massive election fraud, yet they seem powerless—ironically, despite their exclusive constitutional power—to do anything about it.
In short, not only have these federal and state statutory laws not faithfully implemented the Constitution’s vesting of the state legislatures with exclusive authority to decide the manner of choosing electors, they have instead, and contrary to the Constitution, vested the states’ executive branches with such authority, to the exclusion of the state legislatures. The Exclusive Power of the State Legislatures to Determine the Manner of Choosing Electors Is ‘Non-Delegable’
As I previously wrote, “unlike men, all laws are not created equal.” The U.S. Constitution reigns supreme. Thus, the Amistad suit contends that these federal and state statutes, as applied, are unconstitutional and as such void, and asks the D.C. federal court to issue a judgment declaring that the votes of the Biden-pledged electors from the six disputed swing states not be counted at the joint session of Congress on Jan. 6.
Of course, while the federal laws relating to the Electoral College were enacted by Congress, the parallel state laws were enacted by the respective state legislatures. Thus, to the extent these state laws do shift power to decide the manner of choosing electors from a state’s legislature to its executive branch, such a shift was previously approved by the state lawmakers themselves.
It’s for precisely this reason that the Amistad suit argues that the Constitution vests the state legislatures with both the “exclusive” and “non-delegable” power to decide the manner of choosing a state’s electors. That is, absent the constitutional “non-delegability” of the state legislatures’ power to decide the manner of choosing presidential electors, their previous enactment of state statutes conferring such power upon the governors would defeat the central claim of the suit.
I agree with the Amistad lawyers on this score. As I previously noted, in McPherson v. Blacker, 146 U.S. 1, 29-30 (1892), the U.S. Supreme Court wrote, “There is no doubt of the right of the legislature to resume the power [of appointing presidential electors] at any time, for it can neither be taken away nor abdicated.”
That is, to the extent state statutes purport to give away to the executive branch the exclusive power of the state legislatures to choose the manner of appointing presidential electors, such delegation (even though grounded in state statutes) is an unconstitutional abdication of the electors clause power, and therefore invalid. The Courts Can’t Choose a State’s Electors, but They Can Adjudicate Violations of the Constitution and Law
Given the exclusive and non-delegable nature of the state legislatures’ Article II power over the manner of appointing presidential electors, how can the courts, even the U.S. Supreme Court, intervene and decide who the “true and correct” electors for a given state are? Amistad claims they cannot. Thus, in footnote 55 to their complaint, the Amistad lawyers wrote:
“’Is the U.S. Supreme Court the final adjudicator for certification of Presidential electors?’ The Plaintiffs’ answer is no; the respective state legislatures are the final determiner of post-election certifications of Presidential votes and of Presidential electors—and, in a non-delegable way.”
Yet the Amistad lawyers are seeking judicial intervention over an election matter by this very suit. And that’s not a contradiction. Though the state legislatures are the exclusive body to determine the “manner” of choosing a state’s presidential electors, the courts can, indeed must, adjudicate violations of law, including when federal and state statutes violate the Constitution or when an individual’s constitutionally guaranteed rights are infringed.
Thus, the Amistad lawyers don’t ask the D.C. district court to decide who the correct electors are for any swing state; rather they seek a court ruling that the federal and state statutes purporting to divest the state legislatures of the power to decide the manner of choosing a state’s electors are unconstitutional and void, as applied, and that—because there has been no post-election certification by the state legislatures of the Biden-pledged electors—the votes of those electors may not be constitutionally counted by Vice President Mike Pence, as president of the Senate, at the joint session of Congress on Jan. 6.
Said differently, the Amistad suit doesn’t ask the court to adjudicate election results, only that certain federal and state statutes violate the Constitution, and that the resulting election process was constitutionally defective, and yielded electoral votes that can’t be counted (absent post-election certification).
Similarly, the courts can and do decide cases where individual constitutional rights are infringed by election procedures, such as where equal protection rights of voters are infringed by such procedures. Indeed, that was the basis for the Supreme Court’s intervention in the “hanging chad” Bush v. Gore cases, in which different Florida counties considered the hanging chad ballots in differing manners, and as a result one party—and those individuals who voted for that party’s candidate—were unconstitutionally favored other the other (and those individuals who voted for that other party’s candidate). Zuckerberg’s $400 Million Funding Allegedly Violated Equal Protection Rights of GOP Voters
Indeed, the Amistad suit argues an equal protection violation as well. The suit makes a compelling case that Facebook founder Mark Zuckerberg’s funding of the Center for Technology and Civic Life (CTCL), to the tune of more than $400 million, resulted in egregious violations of swing state voters’ equal protection rights under the 14th Amendment because the ballot drop boxes were intentionally placed disproportionately in Democratic strongholds.
To understand the scale of Zuckerberg’s interference, consider that, on March 27, Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act (CARES), which provided $400 million to states to manage the 2020 elections during the pandemic. Thus, Zuckerberg’s funding exceeded that of the entire federal government.
For example, the suit alleges that “CTCL provided funds to 100 percent of the Pennsylvania counties carried by Hillary Clinton in 2016, including over $10 million to Philadelphia County. The charity required the heavily Democratic county to establish 800 ‘satellite’ voting locations and implement the drop box collection of ballots. In neighboring Democratic Delaware County, Pennsylvania one drop box was available for every 4,000 voters and one drop box was placed for every four-square-miles. On the other hand, Trump carried 59 of 67 Pennsylvania counties in 2016. CTCL contributed to 22 percent of those counties providing much smaller grants. There was one drop box for every 72,000 voters and every 1,159 square-miles in those counties.”
In other words, the density of ballot drop boxes in Democratic counties was 4,636 times greater measured by drop boxes per square mile of land area, thanks to interference by a private billionaire who contributed funds equal to or greater than government funding, with directions to disproportionately benefit Democratic voters.
Recall, in contrast, that at President Barack Obama’s 2010 State of the Union address, he publicly rebuked the Supreme Court justices, to the visible embarrassment of Chief Justice John Roberts, for the court’s then just-handed-down Citizens United decision. The ruling effectively freed labor unions and corporations to spend money on electioneering communications and to directly advocate for the election or defeat of candidates. That is, the Democrats were in an uproar when they thought “corporate” funding (which they presumed would exceed union funding), favored the GOP. Of course, we haven’t heard a peep from Democrats over Zuckerberg’s massive funding, because it helped the 2020 election for Biden.
I believe this unprecedented public scolding of the chief justice is what led to Roberts’s obvious subservience to the liberal agenda in later cases, including his unsound opinion validating the Obamacare “individual mandate” as a tax. The Amistad Suit, Unlike the Texas Suit, Would Appear Not to Suffer From Standing Issues
Nor would it appear that the Amistad suit presents potential standing issues. The plaintiffs include, besides swing state voters themselves and voter rights groups, swing state lawmakers whose Article II powers were stripped from them. Of course, not being a suit between states—as the Texas suit was—it must begin in district court and will go to the DC Circuit Court of Appeals before (potentially) making its way to the Supreme Court. Pence’s Oath of Office Obligates Him Not to Count the Votes of the Swing State Electors
Pence, who took an oath of office to uphold the Constitution, must consider whether he would be violating his solemn oath of office, by violating the Constitution, if he counts the Biden-pledged electors in the absence of post-election certification by the swing state legislatures.
That is, while Democrats will surely argue that, absent objections to the Biden electors carrying in both houses, Pence should honor their votes, Pence must make his own decision whether, under the present circumstances—i.e., irrefutable proof of widespread fraud and the governors’ blocking the lawmakers from exercising their exclusive constitutional power—he himself would be dragged into his own willful oath violation by counting the votes of the swing state electors absent the lawmakers post-election certification of those electoral votes.
Indeed, a legitimate question can be raised whether the Supreme Court’s power of judicial review, established under the landmark case Marbury v. Madison, extends so far—given our separation of powers principle—as to empower the court to inform Pence of how he must act given his oath of office and his role as president of the Senate, where he assesses the evidence and the lack of certification by the state lawmakers.
Nor does the vice president’s apparent self-interest disqualify him from making his own assessment. That is the position any incumbent vice president will find him or herself in, and history teaches that the vice president can count his “own” votes as Thomas Jefferson did in the election of 1800.
The vice president’s insistence on post-election certification by the lawmakers wouldn’t place an undue burden on the governors. All they have to do is call a special session and ask the lawmakers to vote on and approve the certified vote. If the governors refuse to do that simple thing, the only inference that can plausibly be drawn is that they know the fraud was so egregious, well-documented, and systemic that the approval of the lawmakers will never be gotten. Pence would be fully justified in drawing that negative inference should the governors fail to seek and obtain the lawmakers’ approval.
The governors shouldn’t be allowed to bypass the lawmakers’ exclusive, non-delegable, and plenary constitutional power to decide the manner of choosing electors through blatant gamesmanship. That’s why Pence shouldn’t hesitate to fulfill his oath of office by refusing to credit the swing state electors’ votes absent post-election certification by the lawmakers.
For precisely the same reason, Republican senators likewise shouldn’t hesitate to throw their full-throated support behind Pence fulfilling his solemn constitutional duty.
Mr. Vice President, there’s only one option available to you if you’re firm on upholding your sacred oath of office—not counting the votes of the electors from the six disputed swing states, unless and until, such votes are certified, post-election, by the lawmakers.
Stephen B. Meister is a lawyer and an opinion writer. Twitter @StephenMeister. Opinions expressed here are his own, not his firm’s.
Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.
In late November, I wrote on these pages that “the Founding Fathers made a wise and prescient choice in setting up the Electoral College and vesting the state legislatures with exclusive authority to decide upon a state’s presidential electors.[”]
No, the Constitution grants state legislatures the power to "direct" the "manner" in which states appoint their electors. Importantly, it also grants Congress the power to set the date on which states appoint their electors. Meister gets it right elsewhere in the article, but his conclusion suggests that he doesn't grasp the distinction.
Later, I wrote that lawmakers in the six swing states still in dispute—Wisconsin, Michigan, Pennsylvania, Georgia, Arizona, and Nevada—should adopt “reclamation resolutions” reclaiming their exclusive constitutional power under the Electors’ Clause (Article II, Section 1) to decide the “manner” by which their states choose presidential electors.
They have decided the manner by which their states choose presidential electors. What he proposes isn't to "reclaim" a power they've never lost, but to change the manner of choosing electors after the date Congress set for choosing them. If state legislatures could do that, then the grant of power to Congress to set the date for choosing electors would be meaningless.
That is, federal and state statutes relating to the Electoral College have shifted the power to decide the “manner” of choosing a state’s presidential electors from the legislative branch of the state’s government to the executive branch (i.e., the governors) and even un-elected administrative officials (e.g., the secretary of state).
I agree that federal statutes can't strip state legislatures of their constitutional power to direct the manner of choosing electors, and, as explained below, they don't. But how can a state statute, which is necessarily passed by the state legislature, ever violate the Electors Clause? Isn't the statute simply an exercise of the legislature's power under the Electors Clause?
For example, federal statutes—namely, 3 U.S.C. Sections 5 and 6—establish a process where, in contrast to the exclusive power being vested in the state legislatures as mandated by Article II of the Constitution, presidential electors are designated by the governor, following a popular vote, without any post-election certification by the legislature of the state.
He's wrong about both statutes here. 3 U.S.C. 5 does not establish any process for choosing electors. It simply provides a date by which a dispute regarding the appointment of electors may be resolved in the manner directed by the state legislature. This seems a pretty straightforward application of Congress's power to set the date on which electors are chosen. 3 U.S.C. 6 does not give the governor the power to "designate" electors. It simply requires the governor to transmit the certificate of ascertainment of electors to Congress, the National Archives, and other bodies. The Constitution requires the electors to transmit their votes to the President of the Senate so that they can be opened and counted in the presence of Congress. Congress plainly has the power under the Necessary and Proper Clause to make provide by law for how the votes are transmitted and to provide by law for how the President of the Senate and Congress can ascertain the identity of the electors.
And where in the Constitution does he imagine there is a requirement for "post-election certification" of electors by the legislature?
As I previously noted, in McPherson v. Blacker, 146 U.S. 1, 29-30 (1892), the U.S. Supreme Court wrote, “There is no doubt of the right of the legislature to resume the power [of appointing presidential electors] at any time, for it can neither be taken away nor abdicated.”
The Supreme Court is actually quoting a Senate report there. That is not a holding by itself. Also, the Supreme Court also recognized in McPherson, "Congress is empowered to determine the time of choosing the electors and the day on which they are to give their votes, which is required to be the same day throughout the United States; but otherwise, the power and jurisdiction of the state is exclusive..."
Pence, who took an oath of office to uphold the Constitution, must consider whether he would be violating his solemn oath of office, by violating the Constitution, if he counts the Biden-pledged electors in the absence of post-election certification by the swing state legislatures.
He is really off the rails here. The Constitution apparently not only empowers, but obligates, President of the Senate to require legislatures of "swing states" to make a "post-election certification" of electors before he will carry out his explicit Constitutional duty to open their votes so they can be counted in the presence of Congress. Wherever he found this requirement, it certainly wasn't in the Constitution.
Pence cannot accept or reject any slate of electors. As the presiding officer of a Joint Session, all he can do is entertain an objection from 1 senator and 1 congressman.
So he does that. What happens?
The two houses retire to debate the objection. In the event of a tie-—as best I can determine-—the officially submitted certified slate stands.
So the House will reject any but the certified slates. My guess, however, is that the senate will too. I do not see Trump getting 51 senate votes.
After AZ is rejected (it will be first), I suspect that there will be a motion to forego any further objections. This may be unconstitutional, but my guess is that it will pass.
Thank you.
“obligates, President of the Senate to require legislatures of “swing states” to make a “post-election certification” of electors before he will carry out his explicit Constitutional duty”
What if they don’t? What if one or more of those states where fraud is alleged/proven, say, bugger off, we’re not certifying. Then what does the VP do?
“Pence’s allegiance is to the Establishment.”
is it? Pence is 61, and at the pinnacle of his career ladder. Why not retire, travel with life-time SS escorts and write some books while enjoying his family?
Pence is a nice guy but he lacks the X factor we waited decades for (and likely will again). And, he’s not and never will be a Deplorable. That makes him unelectable; the last brass ring won’t be his to take.
I assume the suit will be dismissed for plaintiffs’ lack of standing, leaving the merits of this case non- adjudicated — just as no evidence of fraud has yet been adjudicated — leaving an opening for Pence to take his shot. Whether Pence would take it is another matter.
VERY GOOD ARTICLE!
(Though as far as I know there is no basis to claim the electoral role of the Legislature is “non-delegable.)
Without researching I feel confident that our Founders’ state Legislatures assigned the execution of their elections to the Executive Branch.
That is what Executives do!
And what our Founders thought Constitutional is what I think Constitutional.
And when the Constitution says “shall”, it means “shall”- so Pence can’t do anything but open “all” the votes.
Like the Constitution says- maybe he can do some other acts in the process that would help.
Anyway, well presented even though wrong.
And there was a point I thought was well-grounded in the Constitution- but don’t remember now LOL!
What serious journalist have you seen that’s reporting Pence has this supposed power to do anything other than count the votes?
I haven’t seen any serious journalists say that myself - just click-bait websites.
Be more than dubious. He doesn’t have that type of power. (Can you imagine the Constitution “really” giving one person the power to toss or change EC votes? If so, that’d be one messed up Constitution. Imagine Al Gore or someone like that having the final say so on which EC votes to count. Constitution doesn’t say that, and it shouldn’t say that. What it does provide for is at least 1 Senator and 1 Congressional rep to submit a written objection, at which point both houses vote separately on what to do. They need to agree to change the result - which in this case obviously would never happen).
“This may be unconstitutional, but my guess is that it will pass.”
Yep, that’s our boys! LOL!
That may be something so egregious that Pence could put the kibosh on it though, without being overruled by the Houses.
... not even sure how joint sessions deal with motions- may be UC.
Congressional Research Service
Informing the legislative debate since 1914Updated October 22, 2020
The Electoral College: A 2020 Presidential Election Timeline
Every four years, the election process for President and Vice President follows a familiar timeline of events. At the same time, a related series of procedures governing electoral college actions proceeds on a parallel track. This report focuses on the electoral college timeline for the 2020 presidential election. For additional information on the electoral college, see CRS Report RL32611, The Electoral College: How It Works in Contemporary Presidential Elections, by Thomas H. Neale.
The 2020 Nomination and Election Campaign Timeline
In a presidential election year, campaigns for the nation's highest offices include a number of sequential processes and events that take place over a period that may begin years before election day. Broadly defined, these include the informal campaign of candidate declarations, fundraising, organizing, and intraparty debates (various start times through February of the election year); the formal nomination campaign, in which candidates contest nominating caucuses and primaries (February-July); the national party conventions, where the presidential and vice presidential candidates are nominated (July-August); the general election campaign (August-November), including presidential and vice presidential debates (September-October); and general election day, November 3, 2020.
The 2020 Electoral College Timeline
During the election campaign, a series of events related to electoral college operations proceeds on a parallel timeline, overlapping both the nomination and general election schedules. It includes nomination of candidates for the office of elector; choice of the electors by the voters on election day; ascertainment of results in the states; meetings and votes by electors in their respective states; and reporting results as directed by law. It culminates with the joint session of Congress to count the electoral votes and declare the President and Vice President to be elected. The electoral college timeline is governed by the U.S. Code at 3 U.S.C. §§1-18, the Twelfth and Twentieth Amendments to the Constitution, and state laws and political party rules.
May-August 2020: Elector Candidates Nominated
In each state, political parties and independent candidates that qualify for ballot access nominate a ticket (or slate) of candidates for the office of elector for President and Vice President. The number of elector-candidates nominated by each party or group is equal to the number of the state's electoral votes. Most candidates are nominated by state party committees or at a state party convention. Electors may not be U.S. Senators, U.S. Representatives, or anyone holding an “Office of Trust or Profit under the United States.” In practice, nominees tend to be a mixture of state and local elected officials, party activists, celebrities, and ordinary citizens.
Faithless Electors: Independent or Bound to Vote for the People's Choice?
The role of presidential electors has been widely debated. Some observers claim they are free agents, while others maintain they must vote for the candidates to whom they are pledged, although this is not required by the Constitution. In some years, “faithless electors” have voted against their party's nominees, although they have never influenced a presidential election outcome. Thirty-three states and the District of Columbia have laws or party regulations that require electors to vote for the people's choice in their state, and in some states faithless electors may be replaced or may be subject to various penalties.
July 6, 2020: Supreme Court Ruling on Faithless Electors, Chiafalo v. Washington
The constitutionality of state measures to prohibit or penalize faithless electors has been debated for many years. On July 6, 2020, the Supreme Court ruled in Chiafalo v. Washington that state laws penalizing or replacing faithless electors are constitutionally valid. For further information and a legal analysis, see CRS Legal Sidebar LSB10515, Supreme Court Clarifies Rules for Electoral College: States May Restrict Faithless Electors, which explains the Court's decision and reviews its broader implications.
November 3, 2020: General Election Day
General election day for electors for the President and Vice President is set by law (3 U.S.C. §1) as the Tuesday after the first Monday in November in presidential election years. Voters cast a single vote for a joint ticket of their preferred candidates for President and Vice President. When they do so, they are actually voting for the electors committed to support those candidates.
November 4-December 14, 2020: Counting Popular Votes and Filing Certificates of Ascertainment
Following election day, the states are to count and certify popular vote results according to their respective statutory and procedural requirements. When the states have completed their vote counts and ascertained the official results, the U.S. Code (3 U.S.C. §6) requires the state governors to prepare, “as soon as practicable,” documents known as Certificates of Ascertainment of the vote. The certificates must list the names of the electors chosen by the voters and the number of votes received in the popular election results, also the names of all losing candidates for elector, and the number of votes they received. Certificates of Ascertainment, which are often signed by state governors, must carry the seal of the state. One copy is forwarded to the Archivist of the United States (the Archivist), while six duplicates of the Certificate of Ascertainment must be provided to the electors by December 14, the date on which they meet.
December 8, 2020: The “Safe Harbor” Deadline
The U.S. Code (3 U.S.C. §5) provides that if election results are contested in any state, and if the state, prior to election day, has enacted procedures to settle controversies or contests over electors and electoral votes, and if these procedures have been applied, and the results have been determined six days before the electors' meetings, then these results are considered to be conclusive, and will apply in the counting of the electoral votes. This date, known as the “Safe Harbor” deadline, falls on December 8 in 2020. The governor of any state where there was a contest, and in which the contest was decided according to established state procedures, is required (3 U.S.C. §6) to send a certificate describing the form and manner by which the determination was made to the Archivist as soon as practicable.
December 14, 2020: Electors Vote in Their States
Monday after the second Wednesday in December of presidential election years is set (3 U.S.C. §7) as the date on which the electors meet and vote. In 2020, the meeting is on December 14. Electoral college delegations meet separately in their respective states and the District of Columbia at places designated by their state legislature. The electors vote by paper ballot, casting one ballot for President and one for Vice President. The electors count the results and then sign six certificates, each of which contains two lists, one of which includes the electoral votes for the President, the other, electoral votes for the Vice President, each of which includes the names of persons receiving votes and the number of votes cast for them. These are known as Certificates of the Vote, which the electors are required to sign. They then pair the six Certificates of Ascertainment provided by the state governors with the Certificates of the Vote, and sign, seal, and certify them (3 U.S.C. §§8-10). The six certificates are then distributed by registered mail as follows: (1) one certificate to the President of the U.S. Senate (the Vice President); (2) two certificates to the secretary of state (or equivalent officer) of the state in which the electors met; (3) two certificates to the Archivist; and (4) one certificate to the judge of the U.S. district court of the district in which the electors met (3 U.S.C. §11).
December 23, 2020: Certificates Must Be Delivered to the Designated Officials
Certificates of electoral vote results must be delivered to above mentioned officers by the fourth Wednesday in December, in 2020, by December 23 (3 U.S.C. §12).
Failure to Deliver Certificates by December 23
If the certificates from any state have not been delivered by December 23, 2020, the President of the Senate, or in their absence the Archivist, is required to request the secretary of state or equivalent officer in that state to send one of the copies they hold to the President of the Senate by registered mail (3 U.S.C. §12, 13). The Code also directs them to send a messenger to the judge of the U.S. district court in the state directing the judge to transmit the certificate they hold by “hand ... to the seat of government.”
January 6, 2021: Joint Session of Congress to Count Electoral Votes and Declare Election Results Meets
On January 6, or another date set by law, the Senate and House of Representatives assemble at 1:00 p.m. in a joint session at the Capitol, in the House chamber, to count the electoral votes and declare the results (3 U.S.C. §15). The Vice President presides as President of the Senate. The Vice President opens the certificates and presents them to four tellers, two from each chamber. The tellers read and make a list of the returns. When the votes have been ascertained and counted, the tellers transmit them to the Vice President. If one of the tickets has received a majority of 270 or more electoral votes, the Vice President announces the results, which “shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President.”
Joint Session Challenges to Electoral Vote Returns
While the tellers announce the results, Members may object to the returns from any individual state as they are announced. Objections to individual state returns must be made in writing by at least one Member each of the Senate and House of Representatives. If an objection meets these requirements, the joint session recesses and the two houses separate and debate the question in their respective chambers for a maximum of two hours. The two houses then vote separately to accept or reject the objection. They then reassemble in joint session, and announce the results of their respective votes. An objection to a state's electoral vote must be approved by both houses in order for any contested votes to be excluded. For additional information, see CRS Report RL32717, Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress, coordinated by Elizabeth Rybicki and L. Paige Whitaker. [13-page pdf]
January 20, 2021: Presidential Inauguration
On this date, the President and Vice President are to be inaugurated. The Twentieth Amendment set the date for inaugurations as January 20, beginning in 1937. Since 1981, the ceremony has, with one exception, been held on the West Front of the Capitol. The Vice President takes the oath first, followed at noon by the President.
Legislative Proposals to Extend the Post-Election Electoral College Timeline
Concern has been expressed by some that contested or delayed state popular vote results in the 2020 presidential election might prolong counting and ascertainment of results and encroach on the electoral college timeline. Two bills introduced in the 116th Congress would extend the time available for this process. S. 4517, introduced by Senator Marco Rubio, would be effective for the 2020-2021 election. It would change the Safe Harbor date to January 1, 2021, and the date on which electors vote to January 2. H.R. 8492, introduced by Representative David E. Price, would change the Safe Harbor date and also reschedule the electoral college meetings to the first day after January 1. It would also expedite delivery of certificates of the electoral vote and reschedule the joint session of Congress to count electoral votes to the second day after a revised deadline for election certificate delivery to the Vice President or the Archivist.
Thomas H. Neale, Specialist in American National Government
IF11641
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has been provided by CRS to Members of Congress in connection with CRS's institutional role. CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you wish to copy or otherwise use copyrighted material.
Interesting that Rubio and David Price introduced bills that would have pushed back the timeline, which might have been helpful to Trump.
Price is a very liberal Democrat who has represented Durham and Chapel Hill, NC for decades—he used to be firmly in the party’s left wing, but the party’s leftward movement now puts him in its mainstream. (He also happens to be the Congressman who nominated me to West Point many years ago.). I’m surprised that bill didn’t go anywhere, because, at the time, it was the Democrats who thought they would be litigating the results of the election.
Pense
“The Constitution says the Vice President SHALL open the votes of the electors. SHALL means he must, there is no discretion, basically his role is ceremonial...”
A few states will be submitting two sets of electors’ votes. Guess he’ll open all of ‘em and then decide which ones to read/accept.
Art II.1.3
The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.
the president of the senate presiding? if so, he who has the gavel makes the rules.
note that there are elector judges for the House and Senate. For President, the President of the Senate (VP)(pence) seems to be the only presiding officer mentioned with the power to preside over the count.
if pence does not preside over the count then who does?
Mike Pence is never ever going to do this. Not in a million years. Its just not going to happen. He will never go against his establishment buddies.
The members would just vote to have someone else preside and open the certificates, they do that all the time.
The presiding officer basically just has a ceremonial role...whoever is the presiding officer must open the votes and he has no authority under the Constitution to do anything else...
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.