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It does not say who resolves the matter in the first case of the PE being the only one failing to qualify. But that is a different issue than the one we were originally discussing. As you say, “it is important... also”.

It does say that the VP elect will act as president. It doesn't appear to allow for anyone else to qualify at that point though. In the case of an under aged president-elect at least he might eventually qualify. In the case of non-natural born it sounds like we would have four years of an acting president. I don't see a place for the Supreme Court to get involved.

It would be a hard case to make that the authors of the 20th meant to have the courts resolve the case of only the president-elect not qualifying but for Congress to resolve the case of neither the president-elect or the vp-elect qualifying.

I just don't see how the courts could get involved at this point.

If it's Congress that makes the decision--after 1 senator & 1 C'man challenge eligibility, --then there would be nothing for the SC to decide. That would be it.

That's the way I read it.

Unless 0 produces a real copy of his BC, there will be doubt in millions of peoples' minds from now on.

Yes, but that's a political problem, not a legal one.

Electoral College votes cannot be “redirected.” However, they can be freed from casting an illegal vote.

Right, electors are not constitutionally bound to vote for anyone. If they had become convinced the "winner" of the November election was the wrong person for the job for whatever reason they could simply voted for someone else. In this sense they weren't "freed", they were always "free".

But once the electoral votes have been cast (as is now the case) how can they be recalled. This is no longer a case of access to state ballots in the November election. That ship has already sailed.

The 20th Amendment. It clearly subordinates electoral and public votes to the eligibility of the president elect.

The rest of that paragraph is important also.

... 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.

If no president-elect qualifies then the vp-elect acts as president. If neither of them qualify then Congress and not the Supreme Court gets to resolve the situation.

ping

There are at least eight cases in which judges have ruled that candidates are disqualified from running. Two of those involved disqualified PRESIDENTIAL candidates.

Sorry for taking a while to reply, I was out for Christmas.

Article II, Section 1 says that the states can appoint their delegates to the Electoral College in whatever way they want.

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.

But on what constitutional basis could the vote of these electors be revoked once cast?

I can see how the states could punish officials who mismanaged the process of selecting the electors or punish electors who did not vote as "directed". I just don't see how the electors votes could be changed once the electors have been certified and their votes cast.

Also, the Constitution makes no mention of the Supreme Court having any role in managing the Electoral College or approving of it's results.

Do you have any cases or legal research that address either of these points?

That’s just an opinion, and one that completely overlooks the language in the 20th amendment where it says the PE could fail to qualify. It’s the SCOTUS’s job.

True enough, it is an opinion. The Supreme Court has never ruled on it and really can't. But I do offer support for my opinion.

The 20th amendment says the President Elect can fail to qualify, but it also says that it is Congress's job to deal with that crisis.

Amendment XX - Section 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.

No mention of the Supreme Court here. It's Congress all the way. We get the VP-Elect unless he doesn't qualify either. In that case we get somebody selected by Congress.

It is well settled that the Supreme Court can't remove a sitting president because the Constitution specifically gives the job to Congress. He has to be impeached and convicted. Similar reasoning applies to the president elect.

Check out some of the other posts on that thread. I hate to post the same thing over and over on many threads.

This is a good discussion but I have to run right now. I will check back in tonight and try to respond. See my about page for some pointers to more resources.

If federal law provides for a grand total of 2 hours’ debate on ALL objections to eligibility, then it is almost irrelevant whether one or more Congressman wish to object on these grounds.

First, I think it's 2 hours per objection. Still not much time.

The reality about Congressional debates is the real work is done through informal lobbying and discussions beforehand. For instance, the calls and letters freepers are sending in. I doubt any Congressman actually changes his or her mind in the public debate. It's really for putting the reasons for their vote on the record.

The two hour limit in statute does mean that there are no delaying tactics that can drag the vote out forever. No filibusters or referrals to committee. One way or another the vote will take place shortly after the electoral votes are counted.

Congress is the most political branch of the government. Constituent opinion will play heavily in each members mind. They have to stand for reelection after all. That's why the founders gave them this job.

This process was designed for speed and certainty. Remember, the inauguration used to be in March. It was moved up to shorten the time we spend with a lame duck administration.

Consider what would happen if the president elect were disqualified a couple of weeks before the inauguration. Not just the riots that some have speculated about. How would the financial markets respond to the uncertainty? Which foreign powers would take advantage of the situation? I'm sure these questions will weigh heavily on Congress's mind.

All of these issues are valid concerns. A lot of tough issues here for Congress.

It is clear.

I always get in trouble with side arguments. lol. I'll just withdraw that statement.

The point is it doesn't matter. This system was designed to prevent the decision from ever getting into Federal Court.

unauguration=inauguration.

Maybe you have a new word to describe what is going to happen.

Congress has to be well aware by now of the number of suits and their nature. For any protest, then, it would take one Congressman plus l Senator , and they would have to present the case against Zero and/or ask or demand that he prove eligibility by producing the exact copy of BC?

Well said. This is how the Constitution is designed to handle this problem.

Note that Federal law (as opposed to the Constitution) provides a two hour limit on the time allowed for debate in Congress of an objection to the qualifications of the President Elect. See this section of the US code for more info. Here is a pointer to the whole chapter of the US code.

This whole process is designed for speed and certainty. Legal parsing is intended to take a back seat.

the Court that determines the matter of fraud, should direct the Congress to act appropriately.

The problem is the checks and balances built into the Constitution don't allow the courts to direct Congress to do this. Courts don't even consider cases they cannot provide remedies for. That's why all of the federal courts have declined to even hear these cases.

The system of checks and balances is well thought out. The founding fathers didn't want the courts to have this kind of power over the presidency.

Assuming the courts will not be involved in this, who has the authority to challenge the unauguration, other than Judge Roberts? Or is it a done deal already?

The job of swearing in the president is an honary one. If the Chief Justice isn't available then pretty much anyone else can administer the oath. The Constitution says the President has to take it. It doesn't say who should administer it. After John Kennedy was killed in Dallas they dug up a local federal judge (Sarah T. Hughes) to administer the oath to Lyndon Johnson. Mostly for political reasons. They wanted a strong public showing that the government was functioning.

IMHO Congress is the only avenue left.

... if Obama was born in Kenya, he doesn’t qualify.

You are absolutely right that if he was born in Kenya that he is not eligible. Whether his dual citizenship disqualifies him isn't so clear .

But the Constitutions gives the job of interpreting qualifications and eligibility to Congress. The founders intended for this process to be political and that is why the Courts don't have a role.

I was referring to the ELIGIBLE BIRTH ISSUE with Obama.

I was as well. The Constitution gives the job of certifying qualifications to Congress. If the founders had wanted a narrow and precise legal judgment they wouldn't have given the job to the most political branch of government.

Just to be clear, it is well settled law that the Court cannot remove a sitting president because the Constitution gives that job specifically to Congress. The same reasoning goes for the President elect.

As far as the Constitution is concerned there is no such thing as a candidate for the presidency. The election is about electing members of the electoral college. No one has questioned any of the electors eligibility for that office. The "candidates" are just private individuals exercising their first amendment rights to campaign for a slate of electors that may or may not vote for them in the electoral college. There is not much a federal court can do before the November election. After that the Constitution gives the job to Congress.

The bottom line is this system is well crafted to prevent the election from getting into Federal Court. If someone were to get past the first standing hurdle there are a dozen more roadblocks to come.

It's possible something could have been done in State Court but there is no Constitutional provision for recalling electoral votes. Maybe the court could sanction the electors for violating some state law but the electoral votes have been cast and the electoral college has been disbanded.

The bottom line is that these lawsuits are not going anywhere.

So who do we look to as an example of how the rule of law should be followed?

I think the Supreme Court is following the letter of the Constitution. It would be judicial activism for them to take a role that isn't given to them.

The old 17th Amendment would have prevented this from happening.

I don't understand. How would the 17th amendment resolve this problem?

The Supremes are hiding from something that has fallen into their laps. This is a simple matter. Take care of it.

The founding fathers knew what they were doing when they designed the electoral college. They knew that above all the election must produce a president in a timely fashion even if an imperfect one. That's why they gave the job to the most political branch of the government. The Supreme Court could take years to parse out the meaning of "natural born" and whether someone qualifies. Congress will take at most a few days. The founders weren't thinking of Obama, they were thinking of the importance of having a president to national security.

If the electors had been concerned they could have voted for another candidate. If Congress is concerned they can refuse to certify the electoral college vote. If Congress becomes concerned after he is inaugurated they can impeach him. The Constitution doesn't give the Supreme Court a role here and they know it.

It's not fair to the Court to say they are shirking a duty the Constitution gives to Congress. It only takes four justices to decide to hear this case. Which on of Roberts, Alito, Scalia, or Thomas are unwilling to take this on. My bet is it is all of them.

I wouldn't want to discourage anyone from pursuing this but I don't think the Supreme Court could resolve it constitutionally even if they wanted to.