by Leo Donofrio, ©2020, naturalborncitizen
(Dec. 8, 2020) — The single Election Day issue, and Foster v. Love, the unanimous SCOTUS opinion behind it, just got a big boost of adrenaline from The Gateway Pundit linking to solid research at Thepostemail.com.
In comments at TGP, three important issues that deserve discussion were raised. Below, I provide historical, legal and constitutional answers to all of them: 1) Some are saying that electors are actually “appointed” when the state “certifies” the election, not on Election Day; 2) We have early voting via absentee ballots, so this disproves “single Election Day”; 3) Back in 1845, when the single Election Day statute was passed, they could not gather statewide results. Let’s take them in order.
ELECTORS MUST BE APPOINTED ON ELECTION DAY, NOT CERTIFICATION DAY.
It was all over the media that California only just certified their presidential electors on Dec. 4th. AP also reported that Hawaii, Colorado and New Jersey still have not certified their results. By now, everyone reading this will understand that 3 U.S.C. § 1 requires that electors “shall be appointed on” election day. That statute is unambiguous. But, 3 U.S.C. § 7 provides more guidance:
“The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct.”
So, plug Dec. 4, 2020, into 3 U.S.C. § 7, to determine the day on which electors “shall meet and give their votes”, but don’t use election day (Nov. 3rd) as the day of appointment, but instead plug in Dec. 4th, the day California certified electors.
The first Monday after the second Wednesday in December next following Dec. 4th is December 21st, not Dec. 14th. If Dec. 4th, day of California certification, is also the day of appointment, then California must have their electors meet and vote on December 21st. However, everyone knows that the Constitution, Art II, § 1, cl. 3, requires that presidential electors vote on the same day in each State, and this year that date is Dec. 14th, as directed by Congressional enactment in 3 U.S.C § 7.
Therefore, it’s obvious that Congress never intended certification and appointment as the same thing. There could not be a certain uniform day for electors to meet, if the States all appointed electors on different days, and States like California chose to certify later than others, thereby violating the uniform electors code at 3 U.S.C. § 7.
McPherson v. Blacker, the controlling SCOTUS case everyone should be familiar with by now, addressed the language of “appointment”:
“The Constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that the majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object…The framers of the Constitution employed words in their natural sense; and where they are plain and clear, resort to collateral aids to interpretation is unnecessary and cannot be indulged in to narrow or enlarge the text…It has been said that the word ‘appoint’ is not the most appropriate word to describe the result of a popular election. Perhaps not; but it is sufficiently comprehensive to cover that mode, and was manifestly used as conveying the broadest power of determination.“
So, here we have black letter law, laid down by SCOTUS, stating that appointment, with regard to 3 U.S.C § 1, means election, if a popular election is held. It does not mean certification. The electors “shall be appointed on” election day.
If there was no popular election, then the electors are directly appointed by the Legislature. And let’s have a new quote from this case to further illustrate the plenary authority of the Legislatures:
“The clause under consideration does not read that the people or the citizens shall appoint, but that ‘each State shall’; and if the words ‘in such manner as the legislature thereof may direct,‘ had been omitted, it would seem that the legislative power of appointment could not have been successfully questioned in the absence of any provision in the state constitution in that regard. Hence the insertion of those words, while operating as a limitation upon the State in respect of any attempt to circumscribe the legislative power, cannot be held to operate as a limitation on that power itself.
“If the legislature possesses plenary authority to direct the manner of appointment, and might itself exercise the appointing power by joint ballot or concurrence of the two houses, or according to such mode as designated, it is difficult to perceive why, if the legislature prescribes as a method of appointment choice by vote, it must necessarily be by general ticket and not by districts. In other words, the act of appointment is none the less the act of the State in its entirety because arrived at by districts, for the act is the act of political agencies duly authorized to speak for the State, and the combined result is the expression of the voice of the State, a result reached by direction of the legislature, to whom the whole subject is committed.“
Our State Legislatures better start taking their heads out of the sand, because see no evil, hear no evil, speak no evil, Sgt. Schultz, “I see nothing”, ain’t gonna cut it, folks. Denying your power doesn’t absolve you of the disaster caused by your failing to use the power. You are going to own the result, Legislatures. The Framers entrusted you with this awesome responsibility. Our soldiers have died to preserve it. Hunkering down and praying for Inauguration Day to come fast is not a strategy that you can avail yourselves of. The Democrats don’t own this mess. The SCOTUS does not own it. The GOP doesn’t own it. And while the villains who caused it certainly need to face Justice – should any such concept survive this disaster – they won’t own it either. You, the State Legislatures own this. The safety and well being of the nation are squarely in your hands tonight. What an honor.
Like the Supreme Court told you, in McPherson v. Blacker, and Bush v. Gore, the Legislature may “resume” the power “at any time”. The words are unqualified, unambiguous, and they apply to you. Stop asking the Governors for help. Appoint electors, and direct them where to meet. You control the meeting place by law. You can change it by resolution, teleconference, pizza and coffee. You have plenary authority. Submit the slate to Congress. If the Governor tries to submit another slate, go to court for a Writ of Prohibition to stop him. Get to SCOTUS. Win there.
Read the rest here.