Are the Electoral College’s Votes Valid? Part II

by Sharon Rondeau

(Dec. 26, 2020) — Continuing from Part I of our interview with Atty. Mario Apuzzo on the role of Congress in determining who the next president will be, in this section Apuzzo explained that not only can Congress accept or reject the electoral votes cast for presidential and vice-presidential candidates on the basis of their validity under the 12th Amendment and Electoral Count Act (ECA) of 1877, but its members also have the responsibility under the 20th Amendment to ascertain whether or not all candidates qualify for the offices they seek.

On Sunday, in conjunction with the U.S. Allegiance Institute (USAI), Apuzzo released a letter and amicus curiae brief which members of the public can download, sign and send to their members of Congress urging that on January 6, when the two chambers of Congress meet in joint session for the counting of the electoral votes, all candidates be scrutinized for eligibility as well as whether or not the Electoral College vote count was “regularly given,” in accordance with the ECA.

On the night of November 3, Trump was winning in all six “swing” states of Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin, only to be declared the loser in all as vote counts continued past November 3 and the media announced Biden the “projected winner” of more than the 270 electoral votes required to win on November 7.

Some in the media had oddly predicted that Trump would appear to be winning on November 3 and claim victory “before all the votes are counted.” For months prior to the election, media outlets speculated, quoting Democrat politicians, that Trump will “refuse to leave office” in the event of a Biden win.

“A large percentage of Americans do not think we had a legitimate election,” the USAI/Apuzzo letter to Congress reads on page 3. “While the immediate seizure of evidence and appointment by a Special Counsel, and a Congressional investigation following the election is necessary, you have enough evidence to now reject the electoral college votes of the offending battleground states, Arizona, Georgia, Michigan, Nevada, Pennsylvania, Wisconsin.”

During the first part of our interview, Apuzzo focused on the ECA, which he explained amended the 12th Amendment, which he in turn pointed out amended Article II of the U.S. Constitution dealing with how the president is elected. All electoral votes must be considered “regularly given” to be accepted by Congress, Apuzzo said, quoting the statute. “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.”

Article II, Section 1, clauses 1-3 of the “original” Constitution states:

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

The entirety of the 12th Amendment reads:

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;–the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;–The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. [And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President.–]The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

As Apuzzo explained, Section 15 of the ECA, codified as 3 U.S.C., details how a dispute over states’ electoral slates is to be settled stemming from the 1876 contested election between Republican Rutherford B. Hayes and Democrat Samuel Tilden. According to the Rutherford B. Hayes Presidential Library:

The election of 1876 between Rutherford B. Hayes and Democrat Samuel Tilden of New York was one of the most hostile, controversial campaigns in American history. Tilden won the popular vote and led in the electoral college, but 19 votes from three Republican-controlled states (Louisiana, Florida, and South Carolina) remained disputed. Oregon’s count was also challenged. Allegations of widespread voter fraud forced Congress to set up a special electoral commission to determine the winner, composed of fifteen congressmen and Supreme Court justices. The commission finally announced their decision only two days before the inauguration. The vote was 8-7 along party lines to award the disputed electoral college votes to Hayes, making him the winner.

On December 14, seven states encompassing the six “swing” states plus New Mexico sent alternate slates of Republican electors to cast votes in the Electoral College for President Donald Trump and Vice President Mike Pence amid reports of systemic and widespread violations of state election laws. On the same day, the Wisconsin Supreme Court issued an opinion stating that state election law, in fact, had been incorrectly overridden by local election clerks when they waived the photo identification requirement for voters requesting absentee ballots under the excuse of being “indefinitely confined.”

The unauthorized changes resulted from the coronavirus pandemic amid fear that the virus could be contracted at highly-populated polling places on Election Day. The number of Wisconsin voters claiming “indefinitely confined” status more than tripled to over 200,000 between 2016 and 2020, WKOW reported on November 13.

The difference in reported Wisconsin votes between Donald Trump and Democratic challenger Joe Biden is 20,600. In Georgia, the margin is even slimmer at a reported 12,670 votes.

After weeks of refusing, in early December Georgia Gov. Brian Kemp called upon his secretary of state, Brad Raffensberger, to conduct a complete “signature audit” of mail-in ballots which was expected to conclude Thursday but whose results have not yet been declared. In an interview with “Fox & Friends” on Wednesday morning, Kemp said Raffensberger has the “constitutional authority” to conduct the audit and that he, Kemp, is seeking full transparency in the election results.

Trump has claimed if signature comparisons were done in accordance with state law, he would win Georgia’s 16 electoral votes handily.

In the situation with competing electors, Apuzzo said, although the ECA states the slate “certified” by the governor is considered the “prevailing” slate, if the electors’ votes are deemed not to have been cast “regularly,” Congress can reject them, as specified in Section 15.

The National Task Force on Election Crises, which states it is “nonpartisan,” suggests that a violation of the “regularly given” provision could occur when electors “voted in violation of constitutional requirements or otherwise corruptly.”

Section 15 of the Electoral Act 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 Act itself goes on, and the 12th Amendment, as to what happens if nobody got the majority of the votes, the majority being 270 votes,” Apuzzo said. “Then the House picks the president, with one vote per state. The Republicans have a majority in that regard. And then the Senators each have one vote. You need a quorum of two-thirds in each house, and then once there is a quorum you need a simple majority of that quorum.”

The Post & Email then asked, “What if people were to boycott the session?” to which Apuzzo replied, “You need a president at some point, by January 20. The popular vote has to be valid, because that’s how you’re appointing the electors. If the popular vote is not valid, you didn’t properly appoint those electors and their votes can be rejected, and then the House decides who the president is.”

The P&E: So how is the conflict resolved?

Atty. Apuzzo: In states where Biden “won,” all governors have certified electors, but if the underlying popular vote is not valid, that’s where the problem is. That goes back to what I said in my letter: the evidence about these offending states. You have the Navarro report which analyzes six elements, plus the Texas lawsuit and all the other state lawsuits. There’s enough evidence that the offending states did not have a “regular,” free and fair election, so the appointment of their electors is not valid.

Whatever the governor does is predicated upon the popular vote in that state being valid. If there’s evidence that it’s not valid, it doesn’t matter what the governor says. So therefore, the Electoral Count Act doesn’t bind Congress. If you look at the fifth scenario in the Act, it says that if the two houses disagree, that the Senate is going to say, “No good” and the House is going to say, “Good.” So there, you have a disagreement. How do you resolve it? It says whatever appointments were certified by the executive of the state are the ones you go with. But if the underlying popular vote is not valid, then Congress doesn’t have to accept the governor’s certification of that particular result. There are two parts: (1) the vote has to be “regularly-given” and (2) the elector has to be appointed properly.

The P&E: So the results of the general election in each state determine the electors.

Atty. Apuzzo: Yes. In Article II, it says, “Each state shall appoint…,” so that causes confusion. Really, they’re appointed twice: once by their party when they’re just sitting there, as we said. Then if the party wins the state, they’re appointed under the Constitution. Then when the governor certifies them, they’re really appointed. So that’s where all this confusion is coming in where they’re saying, “Oh, the House, doing it by each member, so the House is going to knock it down.” And in the Senate, they could do it, but the House says it’s good to go. Then lo and behold, here comes the governor, and he certified the electors and says, “That’s the end of it.”

The P&E: What is the timing of objections which can be voiced by members of the House and Senate? If the Democrats in the House accept the electoral votes and the Republicans do not, what happens then?

Atty. Apuzzo: As far as the objection goes, it must be in writing. If it’s not in writing, the vice president, who’s the presiding officer, will gavel you down. You can’t say anything unless it’s an objection; you can’t even ask what time it is. In other words, nothing is debatable unless it’s put in writing. You have to have one senator and one representative, then each house withdraws, then they have the two hours, then they have to come out and announce what their decision is.

The P&E: Can the majority in either chamber quash the objections?

Atty. Apuzzo: It goes in alphabetical order, and it’s per state. You could actually argue per-vote, because you have two hours for each objection. But let’s assume that it’s just per state. Alabama would be first, and you have to finish one state before you go to the next one, but you get two hours for each objection. Both chambers have two hours. Then the senator or representative can’t talk more than five minutes, and only one time. You can concede your time to others, but you have only two hours. At that point, they’re not voting for the president; they’re voting on the objection, so that one is by heads.

Different lawyers and professors at universities missed this particular point that’s in my letter. If the Senate comes out and says, “No, these votes of the offending states didn’t conduct their elections properly and we’re not going to count their electors,” they can count the Republican votes or they can say, “No, we’re not going to count those, either, because nobody really appointed them, either.” You have to look to see what the state law is. Most of the states say that the appointment happens on Election Day. In other words, the popular vote is how you appoint them. That’s what’s not clear in all this. That word “appointment” causes confusion, because first of all, the party appoints who these people are. But at that point, They’re just sitting there; they hope to get appointed again. How do they get appointed again? Their party has to win the general election.

The P&E: Does evidence have to be presented to Congress for them to decide? Could January 6 turn into a long process lasting days or weeks while hearings are held?

Atty. Apuzzo: That’s a very good question; there really is no precedent for this. Here’s another issue that has to be examined. You have the Act, the Counting Act that I’ve been talking about. That’s a congressional statute; that’s not the Constitution. So even though you have various things there, there could be different parts of that that are not constitutional. So Congress doesn’t really have to follow that particular act. It says “two hours” of debate, but this thing could go on for days. Then, at some point, you’re going to have to get to where you have to have a president, and if you don’t have a president, the Act also says what happens where you get into the Speaker of the House, then the secretary of state and the cabinet.

Congress is a deliberative body. The Constitution is what governs; they have a job under the Constitution to count the votes. The Constitution doesn’t say you have to do it in one day or how to do it. There’s some guidance with the Electoral Count Act. They can use it as much as they want, but in the end, they can always make the argument that the Act is unconstitutional.

Here’s a very interesting point: If you look at Article II of the original Constitution, which said how the electors shall meet and vote by ballot and for two people, that created a lot of problems, because it said “two people.” There’s a whole story about that. That’s why when they changed it, they said, “You have to vote for a president and vice president.” They amended Article II with the 12th Amendment. The 12th Amendment took out the section of Article II about how the electors shall meet and vote for two persons. The 12th Amendment said they would vote for a president and vice president. Here’s my point: They had to amend Article II with a constitutional amendment.

So what Congress did in 1877 — they didn’t go back and amend the constitution again; they passed a statute. You can’t amend the constitution with a statute. If you look at the 14th Amendment, Section 5, it says, “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” That means that Congress can pass statutes enforcing the 14th Amendment. That’s where the Civil Rights statutes came from. In other words, they don’t have to “amend” the amendment, but the amendment itself gives Congress the power. Then, of course, there’s another question: How far can they go with that? Are they just enforcing the Constitution or are they actually changing it? That applies to executive orders, too.

So the same thought pattern goes into Article II and the 12th Amendment, then Congress changed it with a statute in 1887. Even if you follow the statute with the governor breaking the tie, it’s not valid, because his certification of those electors is predicated upon those electors being “regularly” voted upon. If the debate is going to be whether those offending states had a valid election or not a valid election, the Senate can say, “No, those electors were not regularly elected.” And the House could say, “Oh, no; there’s no evidence of that.” Then, when they disagree, that’s when the House takes the vote. But now, they’re not voting on whether or not to accept the objection; they’re voting state by state for the president.

If there’s no objection by one representative and one senator, the vice president, who’s the presiding officer, will read the votes and that’s it.

If there are objections and the Senate comes out of its hearing saying, “No, there’s no problem; we’re accepting the vote,” and the House does the same thing, they’re finished. It’s only if there’s a disagreement between the two houses that the House votes for the president by state.

The P&E: Do we know if Kelly Loeffler and David Purdue will be in the Senate on January 6 given their runoff elections the day before which may not be decided by then?

Atty. Apuzzo: When Congress meets on January 6, the new ones who come in vote. They will have been sworn in on the 3rd. Normally, under election law, you stay in office until the new person takes over for you, even if you go beyond your term. That’s a general black-letter law, so to speak. You can’t have a vacancy. If they’re still the senators and they haven’t been replaced yet, they’ll vote. We have to have somebody there in that position.

Equally important to the process, Apuzzo said, is the 20th Amendment, which requires “elected” candidates to “qualify” for the offices they seek to hold.

Section 3 of the amendment reads:

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Apuzzo expounded:

On the “natural born” issue, if you go back and read my letter, I cited the McCain case from California. This is Congress’s chance to address that issue. Under the 12th Amendment and the 20th Amendment – the 20th Amendment really hits it home – here’s the big point that’s missed – that part about the vice president is part of when they’re counting the votes. That’s missed by everybody. Here’s really where it clinches it: if you look at it, it says, “But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States….”

If I said to my son, “OK, you can take the car and have a good time, but don’t come back after ten o’clock…,” the “but” is a condition of his taking the car. The 12th Amendment talks about counting the votes, etc., “But no person…” So what happens there is you can actually argue that if they’re saying the vice president can’t do it — in other words, he or she must qualify — then surely the president can’t, either, and it’s all done in terms of Congress counting the electoral votes. The “but” refers to, “OK, you can take my car.”

The P&E: So outside of the question as to whether or not states held legal elections, could they go right to the question of whether or not the candidates are eligible?

Atty. Apuzzo: Yes. And, if you look at the 20th Amendment, they talk about the whole thing, when it’s time for the president to start, but if you fail to qualify, you’re not good to go. Now what does that mean? Can you imagine? You can actually go through this whole thing here…If Congress looks at the 12th Amendment about constitutionality of the vote, and then the 20th Amendment which says you have to qualify…

You have two grounds. The “eligibility” issue has nothing to do with the votes. When you look at the 20th Amendment, you can actually be voted in — you’re the “president-elect,” but then it says, “But you didn’t qualify…” How can you be the president-elect and not qualify? Well, there are only three ways that you can’t qualify. One is your age; one is how long you’ve lived in the country – it has to be 14 years; and the other one is “natural born.” What’s even more strange is once you qualify, then you can take over. With “natural born,” you’re never going to qualify because you can’t become “natural born.” But you could become of age; you could run when you’re 34 and turn 35 before you take over.

With regard to Kamala Harris, her parents were not U.S. citizens when she was born, so she is not a “natural born Citizen.”

The P&E: Do you think it will make a difference if people send the letter and brief to their congressional delegations?

Atty. Apuzzo: Yes, absolutely. These senators and representatives feel that they’re all alone. Here, they could be saying, “Oh, that’s some conspiracy with the mainstream media…” but they could become empowered by the number of people who want this examined.