Posted originally on The Conservative Tree House on January 3, 2021 by Sundance
Senator Ted Cruz appears on Sunday morning to discuss the process of challenging the electoral college certification with Maria Bartiromo (CFR). Senator Cruz (TX) discusses his recent decision to assemble with several GOP Senators after Senator Josh Hawley (MO) announced his intent to challenge the certification.
Within the interview Senator Cruz notes the Supreme Court has deferred any election challenge to the legislative branch; which -in his view- should have been permitted to be argued in the court.
However, setting aside political motives for a moment, the two legal and legislative issues discussed within the conversation (Guarantee Clause and Electoral Count Act) highlight a constitutional framework that does sit outside the judicial branch for resolution.
The main question is… does the legislative branch still have enough strength within the institution to follow the constitutional process? THAT is the element where the unknowns exist.
On one-hand we see a corrupted DC body, infecting all institutional processes – across all branches of government, that has allowed severe corruption to take hold. On the other hand, thanks to the foresight of our founding fathers, the process for rectifying that corruption still exists.
[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.”
Additionally, The Electoral Count Act or the Electoral Count Act of 1887 is a US federal law stating procedures for the counting of electoral votes by Congress following a presidential election. It was enacted in the aftermath of the disputed 1876 presidential election between Rutherford B Hayes and Samuel J Tilden. In that election, several states submitted competing slates of electors and a divided Congress was unable to resolve the deadlock. [citation]
Essentially, the Electoral Count Act (1887) requires states to complete their certification of electors to congress by a certain date. The conversation prior to the November 2020 election surrounded whether the COVID pandemic would interfere with the deadlines for state elector certification given the massive numbers of ‘mail-in’ ballots; and whether the counting of them would break through the deadlines imposed by the Act.
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.
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.
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; and VP Mike Pence then deciding which electors would be certified or nullified; that seems to be the main argument.
Support for this approach would be enhanced if the Ratcliffe report was published prior to the January 6th assembly. Which begs the question: why is DNI John Ratcliffe taking so long to produce his report?
Last thought… I have absolutely no idea if this can work, I am just summarizing a set of theoretical arguments that have surfaced. Remember, we all want the best outcome for our nation and nerves are frayed…. let us be kind to each-other in fellowship.