Did the Joint Session of Congress Certifying the Electoral College Vote Do a Big Constitutional “Whoops”? Probably Not, But States Need to Work to Ensure the Integrity of their Elections

As the Joint Session of Congress sat to act upon each state’s Electoral College votes, it was entirely clear the presumption was that each state’s Electors’ votes were in keeping with the Constitution’s requirement in Article II, Section 1, paragraph 2 of our Constitution on its plain language directive that “Each State shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors…”    In implementing this requirement, the state legislatures essentially devolved this responsibility  through statute to the voters by providing how Electors will be chosen based on the popular vote.

As a result, neither:

1. Did the state legislatures of the contested states of Pennsylvania, Michigan, Georgia, Arizona, Nevada, New Mexico, and Wisconsin intervene in and review and make correction to the very apparent widespread fraud in their elections, nor
2.  Did the presiding officers in the U.S. Senate and House, in the face of the substantial evidence of “irregularities” like fraud, act to defer the certification of these states until investigated further.

For background, the National Conference of State Legislators describes Electoral College this way (https://www.ncsl.org/research/elections-and-campaigns/debating-the-electoral-college.aspx):

“As a compromise between electing the president by popular vote or letting Congress choose the chief executive, our Founders settled on the idea of using electors. Each state has as many electors as it has members of the U.S. House and Senate.  Together, these 538 electors make up the Electoral College, which has one purpose: to choose the president every four years.

“Electors generally are chosen by the political parties, though [state] laws governing the selection process vary by state. Today, 48 states allocate their electoral votes to the winner of the statewide vote—a winner-take-all approach. Maine and Nebraska give two electors to the winner of the statewide vote, then apportion one elector to the top vote-getter from each congressional district. A presidential candidate must get at least 270 Electoral College votes to win the office.”

As a result, the state legislatures have effectively removed themselves – unless they act to reclaim it in an election —  from being able to certify the integrity of the votes for President and to ensure that  that the Electors from their state represent the true vote, whether by overall majority or by Congressional District as in Maine and Nebraska.

In this connection,  the constitutionally-granted power of the state legislatures to choose electors is considered  absolute, noting  the U.S. Supreme Court’s landmark decision in McPherson v. Blacker, 146 U.S. 1, 35 (1892), in which the court held:

“This power is conferred upon the legislatures of the States by the Constitution of the United States, and cannot be taken from them or modified by their State constitutions. … Whatever provisions may be made by statute, or by the state constitution, to choose electors by the people, there is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated.”

Remember in the course of the 2000 presidential election, the Supreme Court in Bush v.Gore ruled members of the Florida legislature, reacting to significant election fraud, could appoint Electors for a particular candidate. As the majority put it, “The individual citizen has no federal constitutional right to vote for Electors for the President of the United States. . .”  When it comes to presidential elections, the state legislatures define how Electors are to be chosen.

Unfortunately, those seven disputed states’ legislatures—Pennsylvania, Georgia, Michigan, Wisconsin, Arizona, Nevada, and New Mexico— which had Trump-pledged electors attend and cast votes for the Trump–Pence ticket at the Dec. 14 Electoral College sessions, did not act to review the accuracy and integrity of the votes in their respective states in order to ensure that the correct Electors were representing their respective states.

AMAC and its members pushed hard in 5 of the states – Pennsylvania, Georgia, Michigan, Wisconsin, and Arizona – urging their state legislators to pass “Reclamation Resolutions” so that the fraud laden outcomes of the presidential election could be correct by naming the Electors that should have been chosen in an honest election.  Many state legislators responded and called for action, but the legislative leaders of their states did not convene their bodies to act.

Back to Congress, it would seem to many, in the interest of a fair and true election, that the presiding officers of the Senate and House — President of the Senate and the Speaker of the House – should responded to the serious election fraud controversy and dispute in the 7 contested states and deferred certification.  There was genuine opportunity to request that the seven disputed states’ legislatures, which states had Trump-pledged electors attend and cast votes for the Trump–Pence ticket at the Dec. 14 Electoral College sessions, review the accuracy and integrity of the votes in their respective states – before the Congress could certify their Electoral Votes. That, of course, did not happen either.

Consequently, it seems to me that the presiding officers of the House and Senate “blinked” on the plain language of this Constitutional requirement and should have either delayed the work of the Joint Session until the disputed states’ election count issues were resolved or  invoke the 12^th Amendment if the result caused both candidates to fall below the 270 electoral vote threshold.  Interestingly also, U.S. Supreme Court seems to be “blinking” also as it remains absent and refusing to review even cases in which it has original jurisdiction, such as suits between states and notably the recent Texas et al suit against Pennsylvania alleging the voter fraud in that state disenfranchised the votes of Texas and the other plaintiff states.

Going forward, at AMAC, we are committed to working with others to ensure the accountability and integrity of voting in our republic, and indeed to “true the vote” so that we can all have confidence that election fraud conspiracies in the states are rooted out and the cheaters held accountable.