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Governors and state administrators have trampled upon the exclusive constitutional power of state legislatures to decide the manner of selecting presidential electors
Stephen B. Meister
December 28, 2020 Updated: December 29, 2020
Commentary
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, and 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, but rather asserts 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.
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