While seven states—Pennsylvania, Georgia, Michigan, Wisconsin, Arizona, Nevada, and New Mexico—had Trump-pledged electors attend and cast votes for the Trump–Pence ticket at the Dec. 14 Electoral College sessions, these actions don’t give rise to a true set of “dueling electors.”
At the Electoral College—held this year on Dec. 14 at the various state capitols—Joe Biden received 306 electoral votes to Donald Trump’s 232. However, those electoral votes must be read into the Congressional Record and counted at the joint session of Congress held on Jan. 6, 2021, before Biden truly becomes the “president-elect.”
‘Safe Harbor’ Deadline May Be Overcome
Every state, other than Wisconsin, and the District of Columbia qualified for the “safe harbor” set forth in the Electoral Count Act of 1887. By certifying their electors, per their respective popular votes (however fraudulent) by the Dec. 8 “safe harbor” deadline, the Electoral Count Act ostensibly guarantees that Congress must count those electors’ votes at the joint session of Congress.
But our system of jurisprudence imposes a hierarchy to our laws. Unlike men, all laws aren’t created equal. The U.S. Constitution is the “supreme law of the land” and thus, it controls when it conflicts with any other law, including acts passed by Congress (such as the Electoral Count Act).
The Constitution’s Electors’ Clause—Article II, Section 1—vests exclusively in the state legislatures the power to decide the “manner” in which a state’s presidential electors are chosen. If the legislatures of the seven states whose Trump electors cast ballots (opposing the Biden electors) were to adopt a resolution reclaiming their constitutional authority to decide the manner of choosing their electors, any provision of a congressional statute—including the safe harbor and other provisions of the Electoral Count Act—purporting to override the Electors Clause would arguably become unconstitutional, as applied to the current situation, and to that extent unenforceable.
That said, as of now, none of the seven states’ legislatures have formally voted on and adopted such a “reclamation” resolution, even though all are Republican-controlled other than New Mexico and Nevada.
‘Reclamation Resolutions’ Create Equal Footing
In the absence of the seven states’ legislatures formally adopting reclamation resolutions, members of the House and Senate could, in theory, raise “objections”—under procedures set forth in the Electoral Count Act—to the certified votes of the Biden-pledged electors, citing the evidence of rampant election fraud in those states’ elections.
However, those objections are very likely to fail, absent a decisive court victory before Jan. 6. While the Trump legal team just filed a certiorari petition in the U.S. Supreme Court regarding Pennsylvania, which may prove successful, it’s doubtful at this point that Trump can be heard on his claims in all disputed swing states before Jan. 6.
At the joint session, objections to the Biden-pledged electors must carry in both houses of Congress. Given the Democratic majority in the House, and the likelihood of hyper-partisanship, it strains credulity that any such objection would carry in that chamber, absent a decisive court victory declaring the vote in a given state illegal.
And, though the GOP presently controls the Senate—and may still control it following the Georgia senatorial run-off, which is set to occur on Jan. 5, 2021, the day before the joint session—no senator has yet come forward and promised to raise an objection, and the GOP majority is razor-thin. The current Senate majority leader, Mitch McConnell, already signaled defeat after the Electoral College vote. In short, the chances of “objections” to the electoral votes of the seven states passing in both houses of Congress is exceedingly remote.
Interesting Constitutional Questions May Emerge
However, interesting questions remain unanswered, should the Republican-controlled legislatures of the six disputed swing states (or some combination of 3 or 4 of them) adopt by majority vote a formal reclamation resolution before the Jan. 6 joint session.
Such a resolution would acknowledge the evidence of fraud in the state’s 2020 election, formally “reclaim” the legislature’s exclusive constitutional power to choose the manner of designating the state’s presidential electors, ratify the votes of the Trump-pledged electors on Dec. 14, and formally decertify or revoke the electoral votes of the Biden-pledged electors.
The state lawmakers would then send certified copies of their reclamation resolution to Congress, Vice President Mike Pence, and the national archivist.
The indicia of election fraud supporting such a reclamation resolution is overwhelming: Biden won a record low of 17 percent of all counties nationwide, lost 18 of 19 bellwether counties, lost Ohio, Florida and Iowa, and lost 27 House “toss-up” races, yet somehow in Pennsylvania, Michigan, Wisconsin, Georgia, Nevada, and Wisconsin, all those six swing states experienced a massive post-Election Day “blue shift” sufficient to overcome Trump’s close of Election Day lead.
This outcome in all six swing states is statistically impossible. Couple this with more than 1,000 sworn affidavits of outright election fraud, as well as the Antrim County, Michigan, report alleging Dominion’s “adjudication function” was used to swap votes to Biden from Trump, and a very strong case is made for the adoption of reclamation resolutions.
The Joint Session of Congress
At the joint session on Jan. 6, Pence, as president of the Senate, presides over the proceedings under the Electoral Count Act. Pence would, at the roll call of the electoral votes, note the dueling set of electors sent—and which cast votes at the Dec. 14 Electoral College—for however many of the six swing states duly adopted a reclamation resolution.
Raucous debate would surely ensue at the joint session. Again, absent decisive court victories before Jan. 6, Democrats would rely on the safe harbor being met. But Republican lawmakers would point to the absolute terms of the electors clause and contend that the Electoral Count Act’s safe harbor provision, as applied here in these particular circumstances, unconstitutionally infringes on state legislatures’ unqualified and exclusive constitutional right to reclaim the power to choose electors.
Indeed, the constitutionally granted power—it’s not a “reserved” sovereign power—of the state legislatures to choose electors has long been regarded as “plenary” (or absolute), following 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.”
And, while McPherson v. Blacker dates back to the late 19th century, it was followed much more recently by the high court in the Bush v. Gore cases.
In sum, absent either earlier decisive court victories or the adoption of reclamation resolutions by the six Republican-controlled swing state legislatures, objections to the electoral votes cast by Biden-pledged electors in those states would have to carry, by a majority vote, in both Houses, at the Jan. 6 joint session, and that’s highly unlikely; but, were those Republican-controlled state legislatures to adopt formal reclamation resolutions, there would be two sets of truly dueling electors.
In that case, it’s likely both sets of electors would draw partisan objections, but also likely neither set of objections would carry.
Thus, Pence, presiding over the joint session, would be left with no dispositive guidance on which set of electors, if either, to count. In such a circumstance, Pence would be left with three choices: to count one or the other set, or to count neither.
Indeed, there surely would be a debate on whether the vice president, as presiding officer over the joint session, has the authority to make any such decision. On this score, the Electoral Count Act is unclear, to say the least.
I assume that Pence would reject the notion of crediting the Biden-pledged electors in the face of valid reclamation resolutions and the teaching of the McPherson case. Thus, I believe he would either credit the Trump-pledged electors or decline to credit either set.
If the vice president, following McPherson, credited the Trump-pledged electors (and, assuming all six states adopted reclamation resolutions), Trump would win 311 to 227. Indeed, Trump would only need 38 disputed electoral votes (of the 79 disputed in the six swing states) to hit 270 (he now stands at 232), and that could be made up of a slew of combinations of three (or at most four) of the six states.
If, conversely, Pence chose to disregard the votes cast by states with dueling electors and again assuming all six Republican-controlled swing states adopted reclamation resolutions, that would leave the score at Trump 232, Biden 227.
What’s Required to Avoid a Contingent Election?
But now another interesting legal question emerges. In such a circumstance, would Trump be declared the winner, by virtue of having won a majority of the electoral votes actually counted, or would the House decide the winner by a “contingent election” under the 12th Amendment because neither candidate hit 270, a majority of all possible electoral votes counted.
Once again, the Electoral Count Act is unclear.
The 12th Amendment modifies the contingent election procedure set forth in the Constitution. Whenever neither candidate wins the requisite majority of electoral votes (and, again, that number could itself be in dispute), the House decides the winner in a so-called contingent election. However, instead of one vote per representative (the Democrats still control a majority), the contingent election is based on one vote per state, decided by a majority of each state’s representatives. Because more states’ delegations are Republican-controlled, Trump would very likely win a contingent election.
For that reason, the “discounting” of the electoral votes to the point where Trump has a majority of the remaining electoral votes would likely result in Trump winning, whether because he’s adjudged to have won by virtue of having acquired a majority of counted votes or by a follow-on contingent election.
One thing the Electoral Count Act does make clear is that the House must without delay and immediately conduct the contingent election following the conclusion of the joint session. There likely would be no time for an intervening Supreme Court decision (though one could be handed down after the fact).
If I were Trump, I would opt for rejecting the votes of any state with dueling electors and a contingent election in the House. That path is far less likely to be overturned by the Supreme Court, which has already shown general hesitancy to get involved in determining election disputes, and has displayed further hesitance, based on the separation of powers principle, to infringe on the authority of the legislative and executive branches in election matters.
Said differently, having a contingent election would take the question—previous to a contingent election, of which set of electors to count—out of the legal realm, and into the political realm. The court, in my view, based on the separation of powers principle, is less likely to set aside a contingent election than to override Pence’s choosing the Trump-pledged electors.
Republican State Lawmakers Must Act Now
The state GOP lawmakers will go down in history as champions of freedom and as having saved the Republic if they justifiably vote in reclamation resolutions and as cowards who refused to reclaim their constitutional power if they don’t. Indeed, I think it’s fair to say much of the nation—and later on, historians—will regard state lawmakers who vote to reclaim their power as great patriots and true heroes of the Republic who acted selflessly and with courage in a time of grave danger.
Given the overwhelming evidence of election fraud—and the threat of totalitarian communism such a stolen election surely presents for our future—the state lawmakers must act now, not hesitating to perform their constitutional duties in accordance with their oaths of office.
They should convene sessions of both state houses at once, whenever and wherever they can.
Stephen B. Meister is a lawyer and an opinion writer. Twitter @StephenMeister. Opinions expressed here are his own, not his firm’s.
Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.