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Lawsuit by Republican attorneys general makes a mockery of their belief in the 10th Amendment

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Jackson Lee: “The United States Supreme Court summarily rejected this frivolous lawsuit without allowing any oral argument and turned them away on a well-known precedent that no standing existed for any of the petitioners that were a part of the lawsuit. The Supreme Court, therefore, reinforced the bedrock principle that in America, It is “we, the people” who choose our leaders; leaders do not choose their voters. And as we can see on Monday, December 14th, the Vice President has already received 306 electoral votes, which clearly gives him enough electoral votes to secure the presidency!”

The electorally defeated incumbent has amassed a 98 percent failure record (1/50) in his legal challenges to the certification of electors. Not to be outdone, the Texas attorney general, joined by 19 Republican attorneys general and 126 sitting Republican members of Congress, to file a desperate Hail Mary action. That request was for the U.S. Supreme Court to disenfranchise 10 million voters in Georgia, Michigan, Pennsylvania, and Wisconsin because they claimed somehow that the local decision made by those sovereign states to protect their citizens from a lethal pandemic by permitting voting by mail was illegal or unconstitutional.

It defies belief that Republicans claiming to revere the 10th Amendment and federalism would take this action that makes a mockery of their core beliefs and is so inconsistent with the bedrock principle that in America, it is “We, the People” who choose our leaders; leaders do not choose their voters. The principle behind this most frivolous of lawsuits would allow the absurd result of California suing Texas for not expanding Medicaid, New York suing Mississippi for the way it runs its penal system, Illinois suing North Carolina for gerrymandering election districts, and Minnesota suing Alabama over its school funding mechanism.

This latest Republican led and Trump-inspired lawsuit, like the preceding 50, is not grounded in reality so it is still useful to describe what the Constitution and the law prescribe regarding the process for electing a president:

First, it must be emphasized that while Nov. 3 was Election Day throughout the nation, it was not a national election. Yes, this was a federal election but not a nationalized election so that states were authorized to run individual state-governed elections. So, in actuality you had a series of discreet and separate elections held in each state and the District of Columbia to choose the persons who under the 12th Amendment are to meet six weeks later to cast the votes to elect the president and vice president. The result of those elections was that Joe Biden was the leading vote-getter in more states with more people by larger margins than Donald Trump. In fact, the latest tally of all votes cast shows Joe Biden has received more votes, 81.2 million, than anyone in history, outdistancing his vanquished rival by an astounding 7 million votes.

Second, the important date in the electoral process is Monday, Dec. 14, which happens to be the first Monday after the second Wednesday and the date set by federal law, the men and women chosen by the voters of their respective states gather in the several state capitals to cast their votes for president and vice president. While there are number of events yet to take place that are required by the Constitution and our laws, it is beyond any reasonable dispute what the culmination of these events will yield: an announcement on Jan. 6, 2021 at a Joint Meeting of the Congress in the House of Representatives, by the President of the Senate, Mike Pence, to the nation and the world that Joseph R. Biden is elected as the 46th president and that Kamala D. Harris is elected the 49th vice president of the United States.

While this meeting is popularly known as the Electoral College, it should be noted that this particular term is nowhere mentioned in the Constitution itself. Instead, the Electoral College should properly be understood as a process, not a place, for electing the president and the vice president. In every state, this process begins with the nomination by the state’s political parties of candidates for the position of presidential elector. Next, is the ascertainment of which slate of candidates were selected to be the electors, which in every state is determined by the outcome of the presidential election held on the first Tuesday after the first Monday in the preceding November.

After the electors have been ascertained, they are provided a writ of election by the state governor directing them to assemble in the state capital at 1:00 p.m. on the first Monday which is Dec. 14 after the second Wednesday in December to cast their votes for president and vice president separately. Any judicial disputes regarding the appointment of electors that are decided in accordance with state laws in place before the election at least six days in advance of the meeting are conclusive as to the validity of the appointment.

Thirty-one states and the District of Columbia by law require electors to cast their votes for the candidate of the political party that nominated them and most of the rest require the elector to sign a pledge committing him or her to do so, but again, since electors are typically faithful members or workers of the political party that nominated them, such pledges merely state the obvious. On Monday, Dec. 14, 50 states and the District of Columbia have certified the results of the presidential election, and since this was done at least six days before the meeting of electors, under Section 5 of the Electoral College Act, 3 U.S.C. § 1 et seq., it is conclusive on the issue of whether the electors in those states were “lawfully certified.”

The Certificates of Ascertainment appointing the electors transmitted to the National Archivist and then the President of the Senate will document that enough candidates nominated by his party were elected to cast in total 306 electoral votes for Joe Biden and Kamala Harris to be elected president and vice president of the United States, which is 36 more than the needed 270 vote majority. Put another way, Joe Biden is slated to receive the exact number of electoral votes that were deemed to constitute a landslide, blowout, historic triumph by the current president just four short years ago.

Third and finally, after the electors meet in the various state capitals Monday, Dec. 14, they will transmit their Certificates of Vote to the National Archivist where they will remain until opened on Jan. 6, 2021 by Vice President Pence and counted in public before a Joint Meeting of the Congress. When all the votes are tabulated, the vice president will then announce and make official what we all know to be true that the constitutional process utilized has elected the 46th president of the United States, Joe Biden and the 49th vice president of the United States and president of the Senate, Kamala Harris. Two weeks later on Jan. 20, at noon, on the steps of the West Front of the U.S. Capitol, Joe Biden will be inaugurated and will enter office after taking the oath in which he will solemnly affirm that he “will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

This outcome is not and will not be in doubt and no amount of disregard of the law and purposeful disbelief will make it so. It is all over but the public counting of the electoral ballots in the Joint Meeting of the Congress on Jan. 6, 2021.

The nation is strong, the Constitution remains and the system is working as the Framers envisioned it. As Americans we can all celebrate that.

Congresswoman Jackson Lee, a Democrat representing the 18th District of Texas, is a senior member of the House Committee on Judiciary and member of the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security.

Tags Donald Trump Electoral College Federalism Joe Biden Mike Pence

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