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. | @ puzo1.blogspot.com
(Dec 30th, 2020) — The question is whether both Houses of Congress need to reject 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 a 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 with 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. …
… continue reading this constitutional legal analysis by Attorney Apuzzo at: https://puzo1.blogspot.com/2020/12/it-is-sufficient-if-only-one-house-of.html
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CDR Charles Kerchner, P.E. (Retired)
Lehigh Valley PA USA