Are the Electoral College’s Votes Valid? Part I

by Sharon Rondeau

(Dec. 22, 2020) — On Sunday, the U.S. Allegiance Institute (USAI) posted an eight-page letter urging Congress to file objections to the Electoral College votes to be submitted to Vice President Mike Pence on January 6, 2021, when both congressional chambers meet to count the votes for president and vice president on December 14 at state capitals around the country.

Equally important to consider and debate, the letter states, is the question as to whether or not the candidates “elected” by the members of the Electoral College “qualify” for the offices they seek under the 12th and 20th Amendments.

The 117th Congress will be sworn in on January 3. All “certificates” emanating from the Electoral College are due on December 23 at the offices of the vice president; each secretary of state; the national archivist; and all federal district judges where electoral votes were cast.

“On January 6, 2021, you will be asked to approve the Electoral College votes cast for former Vice President Joe Biden and Senator Kamala Harris and declare the winners of the presidential and vice-presidential election,” the letter begins. “We urge that on that day you count all the constitutionally cast Electoral College votes and object in writing to any which have been cast in violation of the Constitution and federal and state law.”

The USAI encourages all American citizens to send the letter to their U.S. representatives and senators, a point Apuzzo emphasized in an interview with The Post & Email Monday evening.

“The Constitution commands how you are to count all the Electoral College votes,” the letter continues. “You have solid ground on which to stand in making your objection. The first ground is tied to an illegal popular vote occurring in an offending state. The second ground is Senator Kamala Harris not being an Article II ‘natural born Citizen.'”

In 2008, Apuzzo represented CDR Charles F. Kerchner, Jr. (Ret) and three other plaintiffs in a lawsuit naming as defendants Barack Hussein Obama, II, then designated as “President Elect”; Congress and then-Vice President Richard B. Cheney, claiming Obama did not qualify as a “natural born Citizen” as required by Article II, Section 1, clause 5 of the U.S. Constitution to serve as president.

Obama’s claimed father was not a United States citizen when his son, Barack Hussein Obama II, was born, allegedly in Honolulu, HI on August 4, 1961. While Kerchner eventually reached the U.S. Supreme Court, it never received a hearing.

In a 2011 essay on the subject, Apuzzo wrote:

When determining whether a child born in the U.S. is an Article II “natural born Citizen,” the question is not whether the parents of the child are foreign born. Rather, the question is whether they are “citizens of the United States” at the time of the child’s birth in the United States. In Minor v. Happersett, 88 U.S. 162, 167-68 (1875), our U.S. Supreme Court, providing the same definition of a “natural born citizen” as did Emer de Vattel in his The Law of Nations, Section 212 (1758), but without citing Vattel, and not in any way referring to the English common law, stated:

“The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient, for everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens.”

Id., 169 U.S. at 679-80. So as we can see, the Supreme Court told us that a “natural born citizen” is a child born in the country to citizen parents. See also, U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898) (distinguished between a “natural born Citizen” and a “citizen of the United States” and cited Vattel and quoted his definition of “natural born Citizen” as did Minor v. Happersett but relied on the English common law to define a born “citizen of the United States” under the 14th Amendment).

Harris was born in Oakland, CA in 1964 to non-citizens Shyamala Gopalan, a citizen of India present in the United States on an extended student visa; and Donald J. Harris, who had also arrived in the U.S. on a student visa from his birth country of Jamaica. At the time of Kamala’s birth, neither parent had resided in the U.S. the required five years to apply for permanent residency or citizenship.

In a July 25, 1787 letter to then-Constitutional Convention president George Washington following the American Revolution, future first U.S. Supreme Court Chief Justice John Jay wrote, “Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government, and to declare expressly that the Command in chief of the american army shall not be given to, nor devolved on, any but a natural born Citizen.”

Apuzzo and other constitutional scholars maintain that a “natural born Citizen” must have undivided loyalty to the United States predicated upon the citizenship of his or her parents at the time of the child’s birth. “Foreign influences destroyed many nations in history,” Apuzzo said in a 2016 radio interview with Kerchner.

The same year, Apuzzo represented law professor Victor Williams in a ballot challenge to the presidential candidacy of U.S. Senator Ted Cruz. Cruz was not only born outside of the United States, but, like Obama, to a father who was not a U.S. citizen at the time. Cruz’s mother, born in Delaware, is presumed to have been a U.S. citizen at the time of his birth, although on report from a reliable source told The Post & Email that indications were that Eleanor Elizabeth Darragh Cruz had at one point become a citizen of Canada.

The challenge gained a hearing in a New Jersey administrative court, after which Judge Jeff Masin ruled that Cruz was, in his opinion, a “natural born Citizen.” Masin admitted, however, “that the issue of whether a child born outside the U.S. to an American citizen is eligible to be president ‘can never be entirely free of doubt, at least barring a definitive ruling’ of the U.S. Supreme Court,” nj.com reported.

Cruz was born with Canadian citizenship which he renounced in May 2014, ten months prior to announcing his presidential run. The Post & Email’s comprehensive research into Cruz’s U.S. citizenship status, outside of the “natural born” question, yielded no documentation indicating that despite his many years in public life, Cruz was ever asked to respond to the question.

Apuzzo maintains a blog dealing almost exclusively with the “natural born Citizen” issue.

“Generally, state legislatures allow the popular vote in their state to determine which political party’s slate of electors it will appoint for purposes of its Electoral College vote,” the letter details at the bottom of page 1. “Necessarily, a state’s appointment of such electors is conditioned upon that state’s popular vote being legally cast. In other words, a state’s appointment of its electors must be predicated upon that state’s validly cast popular vote. If that state’s popular vote is not valid, then that state’s appointment of the slate of electors tied to that popular vote must fail. Additionally, with an invalid popular vote in any state, we cannot conclude that the votes of the Electoral College for that state were ‘regularly given.’ See 3 U.S.C. § 15.”

That section of the cited statute reads:

Congress shall be in session on the sixth day of January succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o’clock in the afternoon on that day, and the President of the Senate shall be their presiding officer. Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A; and said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from the said certificates; and the votes having been ascertained and counted according to the rules in this subchapter provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified. If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed, if the determination in said section provided for shall have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as have been appointed to fill such vacancy in the mode provided by the laws of the State; but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law; and in such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State. 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. When the two Houses have voted, they shall immediately again meet, and the presiding officer shall then announce the decision of the questions submitted. No votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of.

The USAI open letter to Congress along with the accompanying USAI amicus curiae brief can be downloaded here.

We asked Apuzzo how he envisions the January 6 joint session might transpire given numerous allegations and sworn affidavits of election-law violations on Election Day and afterward, with his in-depth response illuminating the points in his letter.

What I’ve seen from all the different experts and professors and election-law lawyers is that there’s one very fundamental thing that none of them have mentioned, and that’s what I mentioned in my letter to Congress. Sometimes we miss the most simple point, because this is very complex information.

The validity of the electoral votes that were given can only be as good as the votes that were cast to appoint those electors. So the claim about both houses not agreeing and that “the governor certified the appointment and therefore, Trump doesn’t have a chance because no governor has certified any other electors” is a false argument. The reason it’s false, and even these professors have said it, is that there’s an assumption that those electors received valid popular votes. If you don’t receive valid popular votes, the ballot you’re casting is invalid.

If you look at the Electoral Count Act of 1887, it talks about receiving votes in “regular” fashion. Three states submitted an alternate slate of electors, as what has happened now with Arizona and some other states which submitted Republican electors. The governor has to certify the electors, but if the governor hasn’t done that, then those electors aren’t “appointed.”

The Constitution says the states “shall appoint.” Then, the states say, “OK, well, we appoint them on the day of the general election,” which is how the people vote. When they vote, the electors are appointed by whoever gets more of the vote.

You can go hunting for this information, but this is something I’ve come up with as a conclusion. It’s not easy to see this, because nobody really explains how the Electoral College works.

The Electoral Count Act of 1887 was passed to clear up what happens if a state provides more than one slate of electors. You can have the governor do it and then you can have the legislature do it. You have different authorities from the same state doing it. Then what happens is, under the Act, they give the governor the final say. So if the governor signs off on it after the popular vote, the governor certified that those are the electors. So in other words, the state “appointed,” which is what Article II says: “The states shall appoint.” But that’s not the end of it, because then the question becomes, “Were the votes regularly cast?” and the electors have to be appointed.

All the pundits are assuming that the votes are regularly cast and that the electors are regularly appointed. “They won in the general election and the governor signed off on it.” But they’re missing the big point: Were the votes regularly cast? If you look at the Act, it’s full of instances where it says “regularly given,” or cast. If you look in Section 15 – Counting Electoral Votes in Congress – all the votes have to be “regularly given.”

There are different scenarios there, five in total. Each one of those talks about the votes being “regularly” cast. You don’t get the benefit of that particular section of the Act — where the governor decides the stalemate between the Senate and the House of Representatives because the statute says if one house says one thing and the other house says another thing, then whatever slate the governor picked is the one you go with — because that assumes that those electors were legally voted in.

If the popular vote is not valid, then those electors didn’t receive votes that were regularly cast. So that’s the key: Congress is not bound by the Electoral Vote Act because it assumes that the votes were regularly cast. If they’re not, then Congress can simply say, “No, even though the governor certified these electors, he certified electors who didn’t receive regularly-cast votes.”

So they don’t have to go along with the governor’s certification.

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Our interview with Atty. Apuzzo will continue in Part II.

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Updated December 23, 2020.