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Last week, I told you about the contested election of 1876, which was only resolved with the creation of a 15-member Electoral Commission. The Electoral Count Act was passed in 1887 to prevent another election debacle like 1876. Today, Representative Mo Brooks, Republican of Alabama, is hoping to use the Electoral Count Act this January 6th to get Donald Trump declared the winner of the 2020 election. Brooks said he wants to get the Electoral College votes of five states - Arizona, Pennsylvania, Nevada, Georgia, and Wisconsin - thrown out for voting irregularities.
To go down this path, Brooks has to find a senator willing to co-sign the challenge. Rand Paul indicated he might do so. Ron Johnson is also receptive, but wants to see what transpires at his hearing this week on election irregularities before committing to Brooks. If Brooks can get a senator to sign on, each house of Congress would go to its own chamber for a two-hour debate and then a vote on whether to disqualify the electoral votes of one or more states. Both houses would have to agree. If one house wants to throw out votes and the other does not, the votes remain valid and the process goes from there. But if votes are tossed, one possible outcome is that neither candidate achieves a majority of electors, throwing the election into the House of Representatives where a majority of state delegations picks the winner under the 12th Amendment. However, that’s not the only possible outcome. The Electoral Count Act has so many confusing, ambiguous, and contradictory provisions it makes your head spin. For example, it’s ambiguous, in the case of multiple slates of electors from one state, as to whether the slate certified by the Governor should be counted or no slate is counted at all. That’s not even the worst of it. The process under the Electoral Count Act is supposed to be completed by the time the term of the outgoing president ends. Under the 20th Amendment, that’s set hard and fast at noon on January 20th. The process might not be concluded by then because the two houses of Congress might disagree whether the electoral count has been completed, or disagree that a new president has been selected. There could be two people claiming to be president at noon on January 20th. If the process is not concluded by that time, then the Speaker of the House - Nancy Pelosi in this case - is sworn in as acting president under the 20th Amendment and the Presidential Succession Act. They say Congress is where the sausage is made. Not pretty, is it? The U.S. House of Representatives has been involved in deciding three presidential elections in our history - in 1800, 1824, and 1876.
The election of 1800 has been called ‘recognizably modern’. John Adams and his Federalist Party favored a strong central government, while Thomas Jefferson and the Democratic-Republican Party wanted lower taxes and more federalism. Mr. Jefferson’s party also denounced John Adams’ Alien and Sedition Acts which made it harder for immigrants to become citizens and punished people who criticized the national government. Under the rules before the 12th Amendment, Jefferson and Aaron Burr who was in the same party tied in the Electoral College, each receiving 73 votes. Adams was third with 65. The tie threw the election into the House of Representatives where nobody came out on top in 35 ballots. Jefferson prevailed on the 36th ballot after getting the support of Alexander Hamilton. In 1824, Andrew Jackson won a plurality of both the electoral vote and the popular vote. But because no candidate got a majority of the electoral vote, the election went to the House under the terms of the 12th Amendment which had been ratified in 1804. Henry Clay had come in fourth in the Electoral College and was eliminated. He threw his support to John Quincy Adams who won the election in the House on the first ballot after getting 13 state votes out of the 24 states America had at the time. This was a big shock to Andrew Jackson who had done the best in both the Electoral College and the popular vote. Jackson had the last laugh, however. There were accusations Henry Clay gave his support to John Quincy Adams in exchange for being named Secretary of State. Clay did in fact become Secretary of State under Adams. Jackson campaigned on it for four years, helping him defeat Adams in the 1828 rematch. There was high drama again in the 1876 election when Democrat Samuel Tilden won a majority of the popular vote, but came up short in the Electoral College, 19 votes ahead of Republican Rutherford B. Hayes. There ensued a long, drawn-out and controversial post-election process. Twenty electoral votes from four states were contested. There were allegations of election fraud on the part of Democrats and threats of violence against Republican voters in Florida, Louisiana, and South Carolina. Republicans dominated the electoral commissions in those states and awarded their electoral votes to Hayes. In Oregon, the results favored the Republicans, but the state’s Democratic Governor claimed that one of the Republican electors was ineligible, having held office as postmaster. The two Republican electors presented three votes for Hayes, signed by Oregon’s secretary of state. The newly installed Democrat elector reported one vote for Tilden and two for Hayes, signed by the Governor and attested by the secretary of state. Oregon’s votes were eventually awarded to Hayes and the Democrats claimed fraud. The dispute moved to Congress with Republicans saying the President of the Senate should count the votes and the Democrats arguing no disputed vote should be counted without the concurrence of both houses. The Democrats wanted to block the vote of one state in the House where they held a majority. This would have swung the election to Tilden. This was an unprecedented constitutional crisis which was resolved when Congress passed a law creating a 15-member Electoral Commission to settle procedural disputes and decide what to do with double sets of electoral college votes from states. In closed-door meetings, a grand bargain was struck: Hayes would get the 20 disputed electoral votes he needed to make him President, in exchange for the Republicans ending Reconstruction and withdrawing federal troops from the South. So it was the constitutional crisis of 1876 was resolved, but the resolution came at the price of disenfranchising black voters throughout the South for nearly a hundred years. 1A: Biden’s HHS pick Xavier Becerra is on record saying religious institutions don’t have the same religious freedom as individuals
2A: Amy Coney Barrett's elevation to the Supreme Court produces a rush of litigation to lock in gun rights 1A: lawyer gets preliminary injunction against Bar anti-bias rule; likely to succeed on claims the rule is vague and overbroad and constitutes viewpoint discrimination (E.D. of Pennsylvania) 1A: Virginia county declares itself a ‘First Amendment Sanctuary’ and says it won’t comply with the Governor’s COVID restrictions Free Expression: Muslim apostate illustrator describes the struggle to get a Danish Quran for young readers published 5A: A quick word from our ‘Great Reset’ masters: “You’ll own nothing, and you’ll be happy.” 8A: Ohio bill would bar life without parole for aggravated juvenile killers; sponsor of the bill mistakenly thinks Supreme Court has ruled such sentences unconstitutional 13A: Dems propose constitutional amendment to end prison labor because mass incarceration is so perpetuating involuntary servitude. Sure. Shame on us! Young people don’t love their country as much or are as patriotic as older people. Shame on us for teaching young people wrong-headed mush like wokeness and critical race theory. 2A: Biden pick for White House deputy chief of staff is a fan of ‘mandatory buybacks’ for certain rifles - "Hell yes, we’re going to take your AR-15, your AK-47."
1A Religion: Supreme Court temporarily blocks New York’s enforcement of attendance limit for religious services in COVID hotspots, saying it likely violates the First Amendment 1A: 11th Circuit splits circuits, strikes down Florida’s ban on gay conversion therapy Free Expression: NYC Islamic group wants anyone who insults Muhammad dead Discrimination: British pro-life nursing student gets apology and settlement from the University of Nottingham which had threatened to expel her Electoral College can frustrate the popular vote, but that’s a feature, not a bug; it empowers states in our federal system Nice reminder that Congress can override statutory rulings from the Supreme Court simply by changing the statute Mayflower Compact is a reminder of the importance and religious derivation of the Rule of Law Shame! NFL Quarterbacks Kneel During Anthem to Show Their Disgust for America on Thanksgiving Day
Biden hiring anti-free speech zealots who call for censorship of the Internet and speech controls. Townhall NewsBusters
Federal appeals court upholds Harvard’s affirmative action admissions policies that discriminate against Asians in a case likely headed to the Supreme Court (1st Circuit). Daily Signal Justice Alito defends religious liberty, gun rights in speech. Washington Free Beacon 1A: Federal judge in New York grants temporary order against ordinance requiring people to ‘be nice’ during town council meetings as unconstitutionally vague. Volokh Conspiracy Free Expression: YouTube took down a video that told the truth about the Quran containing hateful verses. Jihad Watch 1A Religion: federal judge in North Carolina refuses to block irreverent book from 9th grade classroom; parents can’t show harm or that the school has established a religion. News & Record 14A: San Francisco regulations favoring recent over long-time taxi medallion owners do not violate equal protection; rational for city to want to help new owners deal with ride-sharing competition. 9th Circuit Copyright: No copyright protection for memoirs because they purport to be factual and facts are fair game. Eleventh Circuit Shame! on the wacko WaPo for calling for the abolition of the Electoral College. OK, while we’re at it, let’s abolish your First Amendment rights to a free press! Daily Signal Radio host Mark Levin has brought to the public’s attention that, under Article II, Section 1 of the U.S. Constitution, state legislatures have total power to choose the presidential electors they want. In the current circumstances in which we find ourselves, state legislatures - including those in Pennsylvania, Michigan, and other contested states - can pick pro-Trump electors for the Electoral College for a good reason, a bad reason, or no reason at all. A stalwart Tea Partier friend of mine wrote a model letter that anyone can deliver to their state legislators reminding them they have this power and urging them to use it. I’d like to read the letter to you now, it’s short:
Hon. Legislator, This is a simple message—Article II, section 1 of the United States' Constitution gives your state's legislature the sole power to choose its Electoral College delegation. Article II says that each state shall appoint said delegation “in such Manner as the Legislature thereof may direct.” You are charged with selecting your state's electors for president of the United States. The U.S. Constitution specifically gives that power to you, and no one else. This means state legislators have complete power over how presidential elections are to be held in their states, too. If you feel that your legislature's constitutional prerogative to set election rules in your own state has been violated, you have the ability to rectify it. If Democrats made anti-democratic changes to your state's electoral process, seeking corrupt advantage, you can correct that. You need not bend to outside forces, civilian or governmental. Your branch of state government regulates your state's elections, and no one else. State legislatures may choose electors for Donald Trump because in their judgment President Trump is the legitimate winner in their state, or they may do so because they feel President Trump is the better choice. Both are constitutional, both are valid reasons. Therefore, Republican-controlled legislatures in AZ, NC, MI, GA, WI, and PA can decide that, in their best judgment, President Trump is the legitimate winner of their states' fraud-filled elections. Or, as has been done many times before in our history, state legislators have the power to simply overrule the voters if they believe the voters have chosen in error. The framers of the Constitution trusted you with that decision. You have that power. That’s the end of the letter. It should be in the wrap-up in its entirety, along with supporting documentation. Resources 1. Mark Levin, Nov. 6, 2020 “This is really the only place in the constitution where the framers of the constitution and the ratifiers go into the federal constitution and say not the state courts, not the federal courts, not the governor, not the bureaucracy, not congress, but the states are going to make the election laws on determining how to choose the electors for president of the United States.” https://www.youtube.com/watch?v=_b72yzm2rTI 2. Horowitz: How Republican-controlled state legislatures can rectify election fraud committed by courts and governors https://www.theblaze.com/op-ed/horowitz-state-legislatures-rectify-election-fraud 3. Majority Opinion of the Supreme Court of the United States, Bush v. Gore, 2000 “The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college. U.S. Const., Art. II, § 1. This is the source for the statement in McPherson v. Blacker, 146 U.S. 1, 35 (1892), that the state legislature's power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by state legislatures in several States for many years after the framing of our Constitution. Id., at 28-33. History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35 ("'[T]here 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'") (quoting S. Rep. No. 395, 43d Cong., 1st Sess.).” My grassroots Champions of the Constitution network - now in 13 states - recently pushed back against a tweet from the Gravel Institute which asked:
The Institute advocates for direct democracy through national referendums, even though direct democracy has a history of descending into mob rule that tramples over the individual and takes away individual rights. The Institute also supports defunding the police and destroying capitalism through socialism (i.e., “democratizing ownership”) and wealth redistribution. Before you take the Gravel Institute’s notions too seriously, you should know it’s being run by college kids. The chairman is a math student at Columbia University. The finance director is another student at Columbia who is 20 years old. The operations director apparently is the most august of the bunch, having earned a political science degree from American University in 2018. The pages for the latter two are deleted from the Institute’s website now, but the Google entries document these facts (see below). We know the chairman is a college student because he said as much. So these are the youngsters who, in addition to destroying the police and free enterprise, want to destroy the Constitution because, in their words, it “sucks”. They want to break the social contract and destroy America. They don’t want America; they want something else. And I’m supposed to listen to college kids with zero real-life experience and throw out the oldest written Constitution in the world that has stood the test of time? When did freedom become a bad idea? It didn’t, unless you think it’s a good idea to live in tyranny. When did a tradition of individual rights that can’t be negated by direct democracy become a bad idea? It didn’t, unless you think it’s a good idea to trample over the individual and not allow people to speak their minds. When did separation of powers and limited government become a bad idea? They didn’t, unless you think turning everything over to a tiny socialist elite who are only in it for wealth and power for themselves is a good idea. Unconstrained total government? That didn’t work out so well in the 20th century, did it. Apparently, the august peers of the Gravel Institute who were barely out of diapers when the 20th century ended missed a few things in their college education. Maybe they should watch a few more Prager U videos to get up to speed with the rest of us. Nothing against 20-year-olds, but I don’t want them deciding what kind of country we’re going to have, at least not until they’ve studied every constitution in history like the Founders did. But here’s the point for right-minded folks: The Gravel Institute’s tweet has over 38,000 ‘likes’ as of this writing. That’s 38,000 people who hate the Constitution and all it stands for. If the political Right wants freedom, free enterprise, limited government, and individual rights to endure, it has to do a much better job of propagating and defending its ideas. (comments from Champions of the Constitution members at the website) Colorado joins National Popular Vote Compact to do away with the Electoral College; Compact now has 196 out of 270 electoral votes needed
https://www.dailysignal.com/2020/11/05/colorado-joins-states-pledging-to-surrender-electoral-votes-to-winner-of-popular-vote/ 1A: Nicholls College backs down from claiming College Republicans broke state law - by writing ‘MAGA’ in chalk on sidewalk - after receiving warning from Louisiana Attorney General https://thenewamerican.com/college-republicans-claim-victory-after-persecution-by-left/ 1A: Criminal conviction reversed because it may have been based on protected speech ‘I love ISIS’ and ‘Black/Indian lives don’t matter’ and not just on threats to "shoot up the building" (Michigan Court of Appeals) https://reason.com/volokh/2020/11/05/i-%e2%9d%a4-isis-bin-laden-confederate-flag-black-indian-lives-dont-matter/ 1A: computer code can be protected speech and state law compelling what it must say can violate the First Amendment (federal judge, Arizona) https://reason.com/volokh/2020/11/05/the-first-amendment-and-mandated-creation-of-computer-code/ 1A Free Press: Radical Michigan Attorney General Dana Nessel goes after journalist who reported on how poll workers were trained to commit voter fraud (how to lie, fend off Trump supporters, call 911 on challengers, and use COVID as an excuse to deny challengers access) https://www.thegatewaypundit.com/2020/11/huge-exclusive-michigan-ag-dana-nessel-sends-cease-desist-order-journalist-demanding-erase-detroitleaks-video-showing-voter-fraud-training-face-criminal-prosecution/ 1A: Mississippi public school gets sued for barring third-grader from wearing ‘Jesus Loves Me’ COVID mask https://freebeacon.com/campus/public-school-faces-lawsuit-over-ban-on-religious-masks/ 1A: federal judge greenlights suit against public schools that banned t-shirts indirectly supporting gun rights https://reason.com/volokh/2020/11/09/lawsuit-over-schools-restriction-on-pro-gun-shirts-can-go-forward/ 2A: gun control advocates spend big but fail to block Montana referendum barring localities from restricting gun rights https://freebeacon.com/2020-election/pro-gun-montana-ballot-referendum-passes-despite-millions-spent-by-gun-control-activists/ 2A: Michigan Supreme Court to hear challenge to University of Michigan’s ban on gun possession on campus https://reason.com/volokh/2020/11/09/michigan-s-ct-will-decide-whether-the-second-amendment-applies-at-public-universities/ 4A: digital anal exam, two scope exams, X-ray, and enema was a perfectly fine way to execute a search warrant for hidden drugs (6th Circuit) https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0351p-06.pdf 5A Eminent Domain: it sure looks like a taking, but it was done by an HOA under state law. No state action, no taking (9th Circuit) https://cdn.ca9.uscourts.gov/datastore/opinions/2020/11/05/18-17320.pdf “First, Sixth Amendments Require Allowing TV Coverage of Derek Chauvin Trial” - that’s what a “public trial” in the COVID era requires https://reason.com/volokh/2020/11/06/first-sixth-amendments-require-allowing-tv-coverage-of-derek-chauvin-trial/ 6A: if you flee to Brazil to avoid capture, you can’t very well argue 11-year delay violates your speedy trial rights (2nd Circuit) https://ij.org/wp-content/uploads/2020/11/Second-Circuit-B.pdf Shame! on New York Times journalist and 1619 Project writer Nikole Hannah-Jones for saying she doesn’t understand her father’s patriotism or why he flew the American flag outside her childhood home. This country’s been very good to you, you ingrate! I deeply resent your 1619 Project attempting to turn the rest of us into second-class citizens. https://thevirginiastar.com/2020/11/09/1619-project-writer-nikole-hannah-jones-says-american-flag-outside-childhood-home-embarrassed-her/ Out of the Mouths of Babes: “The Constitution Sucks” - Champions of the Constitution Push Back on the Gravel Institute
http://www.liberato.us/pushback-network.html Discrimination: California voters have likely rejected affirmative action in education, government employment, and contracting https://reason.com/volokh/2020/11/04/california-voters-reject-race-sex-ethnic-preferences-in-government-employment-education-and-contracting/ Separation of Powers: federal judge denies landlords’ request for injunction against CDC eviction moratorium; evictions would lead to COVID-risky overcrowded housing and CDC merely extended a congressional moratorium that expired in July https://www.bloomberg.com/news/articles/2020-10-29/landlords-denied-injunction-against-cdc-eviction-moratorium Emergency Powers: California judge enjoins Governor Gavin Newsom from issuing COVID orders that alter state statutes or create new ones https://www.thegatewaypundit.com/2020/11/judge-rules-ca-gov-overstepped-authority-covid-order-issues-permanent-injunction-restraining-newsom-issuing-unconstitutional-orders/ 2A: “Michigan Judge Blocks Ban On Open Carry Of Guns At Polls On Election Day” https://www.theepochtimes.com/judge-overturns-michigan-ban-on-open-carry-weapons-at-polling-places_3556145.html 1A: Fifth Circuit allows challenge to UTexas loosey-goosey speech code because code chills speech while pretending to promote free speech https://reason.com/volokh/2020/10/28/fifth-circuit-speaks-out-against-campus-speech-codes-in-university-of-texas-case/ 1A: Houston concedes its law allowing only registered Houston voters to circulate ballot petitions is unconstitutional (5th Circuit) http://www.ca5.uscourts.gov/opinions/pub/19/19-20828-CV0.pdf Freedom of Expression: Egyptian president Sisi says free expression stops when it offends Muslims. Not under our system. With our First Amendment, Islam stops at free speech. https://www.jihadwatch.org/2020/11/egypts-sisi-freedom-of-expression-stops-when-it-comes-to-offending-the-feelings-of-muslims Free Expression: PragerU videos banned at Ohio high school for being too right-wing https://www.toledoblade.com/education/2020/11/03/maumee-schools-organizes-workgroup-vet-curriculum-and-resources
https://lawliberty.org/critical-race-theory-or-civil-rights-law-we-cant-have-both/ Electoral College: National Popular Vote Compact would require impossible national ballot recounts https://www.washingtonpost.com/outlook/2020/10/29/electoral-college-recount-meltdown/ Shame! on Senator Edward Markey for his nonsense that originalism is racist, sexist, blah, blah, blah. How about we stop taking an originalist view of Article I and do away with his Senate seat? We need a living, breathing Constitution now more than ever. https://www.mrctv.org/blog/ma-senator-ed-markey-constitution-originalism-racist-sexist-homophobic Strange as it may sound, there is no right to vote in federal elections expressly stated in the text of the original Constitution. The reason appears to be that the Founders were nervous about democracy descending into mob rule and the majority voting to take away the rights of the minority. At the Constitutional Convention of 1787, James Madison expressed the view that “the freeholders of the country would be the safest depositories of republican liberty.” In other words, Madison believed that people who owned land free and clear would be better guarantors of minority rights than other people would be, better able to stop the tyranny of the majority.
Madison’s view was on the wrong side of history. Voting rights steadily broadened in the country and several constitutional amendments just assume the right to vote exists, for example the 19th Amendment broadening the vote to women and the 26th Amendment lowering the voting age to 18. The U.S. Supreme Court has long deemed the right to vote to be a fundamental right. In 1886, the Court said the right to vote is fundamental because voting preserves all other rights. [Yick Wo v. Hopkins, 1886]. In cases in the 1960s, the Court wrote that the right to vote is essential in a democratic society and restrictions on it strike at the heart of representative government. [e.g., Reynolds v. Sims, 1964] Because the right to vote is considered fundamental in Supreme Court jurisprudence, restrictions on voting must meet strict scrutiny, the highest judicial standard applied to rights. The government must have a compelling interest and the restriction must be narrowly tailored to achieve that interest. There is concern, coming from the Left, that the right to vote - not expressly stated in the Constitution and reliant on the Supreme Court’s good will - is on shaky ground. They cite laws passed by the Republicans in North Carolina cutting back on early voting, curbing voter-registration drives by private groups, eliminating same-day registration, and imposing voter ID rules. Restrictions of this magnitude would be intolerable if imposed, say, on free speech or freedom of religion, they argue, but the Supreme Court opened the door for them when it stopped federal supervision of elections in southern states in 2013. [Shelby County v. Holder] There is even an organized effort called FairVote to get a constitutional amendment explicitly guaranteeing an individual right to vote. If you take a look at FairVote’s board, you will find lots of connections to left-wing groups and causes, even a tie to George Soros’ Open Society Foundation. So you know they’re up to no good, but here are some what-if’s to ponder: What if the Democrats succeed, one day, in taking the House, the Senate, and the White House, then proceed to pack the Supreme Court? What if the permanent leftist majority on the expanded Supreme Court decides the right to vote isn’t deserving of strict scrutiny after all? What if the new majority starts upholding laws in blue state restricting the rights of Tea Partiers and others on the political Right to hold voter registration drives and knock on doors for candidates? What the Supreme Court giveth, the Supreme Court can take away. I’d be tempted to say a constitutional amendment guaranteeing the right to vote would be in order, but I already know it would become the source of boundless mischief by the Left. |
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