Earlier today Missouri Senator Josh Hawley announced his intent to challenge the January 6th congressional certification of the electors. A group of approximately 30 House representatives, led by Mo Brooks, will be challenging from the lower chamber.
This sets up a dynamic where formal electoral challenges from both chambers of congress will be taking place based on evidence of election fraud in several key states. The objection will initiate a debate and roll-call vote to certify electors within both the House and Senate. Vice-President Mike Pence will preside over the debate in the Senate.
A combination of The Guarantee Clause (constitution) and the Electoral Count Act of 1887 (law), establishes the framework for some to argue a fraudulent 2020 election result can successfully be challenged during congressional certification on January 6, 2021. Thus five state legislatures -under Republican control- have sent dual-sets of electors to congress: Arizona, Nevada, Wisconsin, Georgia and Pennsylvania.
[Article IV – Sec.4] The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
“The Guarantee Clause” – “At its core, the Guarantee Clause provides for majority rule. A republican government is one in which the people govern through elections. This is the constant refrain of the Federalist Papers. Alexander Hamilton, for example, put it this way in The Federalist No. 57: “The elective mode of obtaining rulers is the characteristic policy of republican government.” [citation] “The Clause requires the United States to prevent any state from imposing rule by monarchy, dictatorship, aristocracy, or permanent military rule, even through majority vote. Instead, governing by electoral processes is constitutionally required.”
Let us be clear… There is little framework for this type of constitutional issue. This is uncharted territory, and consequently there is no body of law or case study upon which to apply a historic reference. However, that said, the issue of Director of National Intelligence, John Ratcliffe, producing a report about foreign election interference could be a fulcrum issue upon which “The Guarantee Clause” of the constitution may apply.
Here’s where it gets interesting…. The Guarantee Clause puts the jurisdiction in the hands of the political bodies, executive branch and legislative branch, to decide the merit of any state vulnerability in their election outcome. There is little, if any, place for the judicial branch to play a role.
In Luther v. Borden (1849), the Supreme Court held questions involving the Guarantee Clause nonjusticiable, meaning that any remedy for a violation would lie with Congress or the President, not the federal judiciary. Nearly one hundred years later, the Court sweepingly declared that the guarantee of a republican form of government cannot be challenged in court. Colegrove v. Green (1946). (citation)
The federal government, not the state government, ultimately holds the responsibility to protect the entire United States from foreign interference within the Guarantee Clause. This would seem to apply to foreign election interference. “[B]ecause protection against invasion or domestic violence is normally available only from Congress and the President, the structure of this section suggests that the political branches have at least the primary duty to carry out its obligations.”
If DNI Ratcliffe produces a report (prior to January 6th) that outlines foreign interference in the election; and if the argument can be made the states with the contested (dual sets) of electors were subjects/targets of that interference; then a foundation to nullify the electors from the contested states is laid in congress.
In this approach the electoral nullification argument would appear to rest on The Guarantee Clause; where the state election outcome was not valid – as it is not representative of a republican form of government, and the majority vote requirement was manipulated.
If this type of legislative challenge was to take place, there is little precedent for the judicial branch to be involved except to qualify what role The Guarantee Clause would/could play and to what extent the nullification arguments are constitutionally valid.
Again, this is all uncharted territory. However, there are people claiming this process could work to keep President Trump in office. The disqualification of the contested state electors under this argument would ultimately fall upon Vice President Mike Pence who is also President of the Senate and in charge of the January 6th electoral vote certification.
There is a lot of “if-this-then” etc within this framework, and all of it ultimately is predicated on congress challenging the election (now appears likely); and VP Mike Pence then deciding which electors would be certified or nullified (long-shot); but that seems to be the argument some are making.
Immediately after Senator Hawley made his announcement, incredibly the multinational retail corporation Wal Mart responded via twitter with a snarky reply.
Good grief, it is stunning that Walmart would allow such a response. I will never step foot in their store ever again.