It Is Sufficient If Only
One House of Congress Objects to the Electoral College Vote on January 6, 2021
To Compel The House of Representatives To Vote For The President of The United
States
By Mario Apuzzo, Esq.
December 29, 2020
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| The Disputed Hayes-Tilden Election of 1876 |
This article was inspired by my recent two-part interview (Part I and Part II) with the Post & Email and some of the public comments that followed. The question is whether both Houses of Congress need to reject a single return of a state’s Electoral College vote for an objection made during the joint session of Congress on January 6, 2021, to prevail. As explained below, both Houses of Congress do not have to agree to reject that state’s Electoral College votes for those votes to be voided.
There are five scenarios under Section 15 of the Electoral
Count Act of 1887(3 U.S.C. § 1 et. seq.) (“ECA”) for counting and resolving Electoral
College votes disputes in the joint session of Congress. Scenarios 1 through 4 deal with cases in
which both Houses either agree or disagree to the regularity of the votes. Scenario 1 is the only case in which Congress
receives just one Electoral College return and both Houses must agree to reject
the vote. Scenario 5 is the only one of
the five scenarios in which the two Houses disagree, but it only applies when
Congress receives competing electoral returns (one state submits to Congress more
than one Electoral College vote return).
With such disagreement, it provides that the stalemate between the
Houses shall be broken by Congress having to accept the electoral votes which a
state’s executive (Governor) shall have certified. Hence, under Section 15, one
could argue that Scenario 5, which allows for a case in which both Houses
disagree, only applies if Congress receives official competing electoral returns
and that if it receives only one such return then the two Houses must under
Scenario 1 both agree to reject that vote.
As explained below, Congress in joint session is not shackled by Section
15 because Section 15 is unconstitutional and even if constitutional, it does
not apply to a case of a corrupt underlying popular vote.
Again, there are five scenarios for resolution under Section
15 of the ECA. Scenarios 1 through 4
deal with cases in which both Houses either agree or disagree to the regularity
of the votes. Scenario 5 provides:
“(5) 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.”
Scenario 1 only deals with cases in which there is only one
return of a state’s electoral votes. It
says that the votes must be counted unless both Houses reject the vote. So here
we have both Houses agreeing with each other to reject the vote. Implicit is
the case in which both Houses agree to accept the vote either with no objection
by any Senator or Representative or with voting to accept the electoral votes
after an objection. In both cases, the Houses are agreeing with each
other.
Scenario 2 through 5 deal with cases in which there is more
than one return of a state’s electoral votes. Scenario 2 is applicable only if
there was a “safe harbor” determination by a state’s “judicial or other methods
or procedures.” Scenario 3 only applies if there is a dispute as to what state
authority is the legal authority to appoint the electors and “the lawful
tribunal of such State” decides the matter.
But again, both Houses must agree on that decision. Scenario 4 only
applies if there is no “safe harbor” relief as to which of two electoral vote
returns are the valid ones. Again, both
Houses must either agree to accept or reject a return. Scenario 5 is the only
one of the five scenarios in which the two Houses disagree. With such disagreement,
it provides that the stalemate between the Houses shall be broken by Congress
having to accept that slate of electors which a state’s executive (Governor)
shall have certified.
So, Scenario 1 through 4 of Section 15 of the Electoral
Count Act only apply if both Houses of Congress agree, either to accept or
reject any state’s electoral votes. They
do not apply if both Houses of Congress disagree with each other. What applies in that case is Scenario 5. Scenario 5 is the only one in which the ECA
includes the possibility of both Houses disagreeing on how which of the
competing electoral returns are to be counted.
But we cannot use Scenario 5 if Congress received only one Electoral College
vote return from a state. Furthermore,
the provision purports to resolve the dispute between the Houses through the governor’s
certification. Seven contested states, Arizona, Georgia, Michigan, New Mexico,
Nevada, Pennsylvania, and Wisconsin all sent competing electoral returns to
Congress. No governor of any of those states has certified the Republican returns. Hence, Congress can easily just ignore those competing
Republican returns and treat each such state as having provided just one electoral
return.
Notwithstanding this statutory structure, in a case in which
Congress only received one state’s official electoral return, both Houses of
Congress do not have to agree to reject that state’s Electoral College votes
for those votes to be voided. First, it is doubtful that Section 15 of the ECA
is constitutional. Simply, Congress
cannot substantively amend the Constitution with a statute. Congress amended Article II, Section 1 with
the Twelfth Amendment because it saw the original Constitution as having not
provided for a substantive election problem.
If Congress wanted to substantively change the Twelfth Amendment, again
for failure of the Constitution to have provided a solution to a certain
problem, it had to do so with another amendment as it did through the Twentieth
Amendment. Congress cannot just carve out pieces of the Twelfth Amendment and
then change them with a statute such as Section 15 of the ECA. The necessary
and proper clause of Article I, Section 8, Clause 18 of the Constitution does
not apply here to save Section 15.
Second, even if Section 15 of the ECA is constitutional, it does
not apply to limit Congress’s power in a case of a state’s corrupt popular vote,
including a case in which voters in a popular election and electors of the Elector
College voted for a candidate who is not an Article II natural born citizen. It is neither the popular election nor the
Electoral College that wields the ultimate power to select the President and
Vice President. Rather, the Constitution
ultimately tasks Congress with that authority.
The purpose of the ECA as a whole is to assist Congress in deciding how
and which electoral votes of a state to count when in joint session. While Section
15 requires that a state’s Electoral College votes be “regularly given by
electors,” it does not address cases in which there is a corrupt underlying popular
vote. Section 15 does not apply to limit Congress’s power when faced with a
corrupt underlying state’s popular vote. Section 15 therefore does not address cases
in which a state’s underlying popular vote was corrupted.
Section 15 does not provide for objections by Senators or Representatives
based on corruption of a state’s underlying popular vote. In fact, other than
to require that the elector’s vote be “regularly given,” the section makes no
mention of the possibility of a state’s popular vote being corrupt. Hence, both Houses do not have to agree to
reject a state’s Electoral College votes.
There can be a case in which for political reasons the two Houses disagree. If that were to happen, a governor’s
certification of any state’s Electoral College votes could not hamper Congress’s
constitutional duty to assure that “[t]he United States shall guarantee to
every State in this Union a Republican Form of Government” (Constitution, Article
IV, Section 4), which means that it must guard our elections from any
corruption that would endanger our system of majority rule. The Constitution is the supreme law of the
land which means that the Constitution always prevails over a federal or state statute. Members of Congress take an oath or affirm to
support and defend the Constitution. Congress must have the constitutional power,
if not express then implied, when counting Electoral College votes not to count
corrupted and therefore unconstitutional popular votes which are the predicate
for those Electoral College votes. Scenario
1 of Section 15 tells us that much in its provision that the two Houses can
reject a state’s Electoral College vote that they conclude has not been “regularly
given by electors” of that state even if their “appointment has been so
certified” by that state’s governor.
Section 15 of the ECA cannot force a House of Congress to
count a vote when it would be a violation of the Constitution to do so. If Congress cannot agree to accept a state’s Electoral
College votes (both Houses disagree) because one House concludes that those
votes are based on a corrupt underlying popular vote, then that state shall
have failed to follow the command of Article II, Section 1, Clause 2 which
provides that “[e]ach State shall appoint, in such Manner as the Legislature
thereof may direct” its electors. Indeed, if a state can take back the power to
appoint electors, then it can lose that power for having conducted an illegal
election of those electors. States have rights under our Constitution, but not
the right to violate the Constitution.
With such a constitutional violation, no candidate is allotted that
state’s Electoral College votes unless, and as to not disenfranchise that
state’s voters, a candidate can demonstrate that he or she was the true winner
of that state’s popular vote and that therefore that state has satisfied its
constitutional duty. If no candidate can show that he or she received the
required majority of all the Electoral College votes (270 of 538), then the
House of Representatives shall elect the President and the Senate the Vice
President as provided for by the Twelfth Amendment.
As to the grounds for rejecting electoral votes due to
voting irregularities which disqualify an offending state’s appointment of
the electors so certified, there is enough doubt regarding the integrity of the
votes for members of Congress to challenge those votes and demand a full debate
on the floor. Those grounds are documented, among other places, in the numerous
state lawsuits and in the federal lawsuit filed by Texas which the U.S. Supreme
Court refused to hear because of standing. A large percentage of Americans do
not think we had a legitimate election. While the immediate seizure of evidence
and appointment of a Special Counsel, and a Congressional investigation
following the election is necessary, there is enough evidence to now reject the
Electoral College votes of the offending battleground states, Arizona, Georgia,
Michigan, Nevada, Pennsylvania, Wisconsin. See Peter Navarro, “The
Immaculate Deception: Six Key Dimensions of Election Irregularities,”
accessed here (explains the six dimensions of election irregularities in the
six battleground states). As Peter Navarro concludes in his report, if “this is
not done before Inauguration Day, we risk putting into power an illegitimate
and illegal president lacking the support of a large segment of the American
people.” For further support findings of
irregularities in the Pennsylvania election, see Statement
by Pennsylvania lawmakers.
Third, under the Twelfth and Twentieth Amendments, Congress
can reject either a presidential or vice-presidential candidate for not being
eligible and therefore failing to qualify for the office he or she seeks. This can occur in the case of such a candidate
not being an Article II “natural born citizen.” Congress does not need the ECA
to make such a challenge.
Senator Kamala Harris was born in CA to two non-U.S. citizen
parents. She was born with citizenship and allegiance to the U.S. and to her
parents’ two countries and not born with unity of natural allegiance to and
citizenship of the U.S. Born with
divided loyalties, she is at best a 14th Amendment “citizen” of the United
States, but not an Art. II “natural born citizen.” For the full details on what
the original meaning of a natural born citizen is and why Senator Harris is not
a natural born citizen, see the amicus
curiae brief which I authored on behalf of the U.S. Allegiance Institute
recently filed in the case of Robert C. Laity v. Kamala Devi Harris, then
pending in the D.C. Federal District Court under Case No. 20-cv-2511-EGS, which
the court dismissed for lack of standing (not on the merits of the meaning of a
natural born citizen). This case is now on appeal in the D.C. Circuit Court of
Appeals.
So, both Houses of Congress do not have to agree to reject a
state’s Electoral College vote for those votes to be voided. Both Houses or
even just one can object to a state’s Electoral College vote either because the
underlying popular vote is corrupt and/or because in the case of Senator Harris
she is not a natural born citizen. If both Houses reject that vote or just one House
does so, then unless President Trump and Vice President Pence can demonstrate
that they garnered at least 270 electoral votes, the House of Representatives should
choose who shall be President and the Senate who shall be Vice President. A quorum
of two-thirds in each House (two-thirds of all the states for the House of
Representatives and two-thirds of all the Senators for the Senate) is needed.
Once there is a quorum in both Houses, to carry a vote a majority of all the
states (for the House of Representatives) and a majority of all the Senators
(for the Senate) is sufficient.
In the end, the Constitution and the circumstances of election
corruption it was designed to address should always trump a statute that not
only was not designed for that purpose, but actually thwarts that end.
Here is a list
of Republican Senators and Representatives who can be contacted to share with
them this article and urge them to make an objection to the Electoral College
vote on January 6, 2021.
Mario Apuzzo, Esq.
December 29, 2020
http://puzo1.blogspot.com
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Mario Apuzzo, Esq.
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