Electing a President
by Mark Affeck
If we hope to correct the obvious fraud and corruption which has occurred in the recent general elections it is important to separate the presidential election results from the remainder of the races. There are deadlines that the media will remind the people about and they will argue that those dates are in stone. This is debatable. The remainder of the races can be settled independently of the presidential race. The US Constitution is key to determining the president and we must rely upon it in order to have confidence that our next president is duly elected. Article II tells us what role the state legislature plays and what role the Congress plays. Note: no other bodies have a role. Not the media, not the Courts, etc.
The role of the State Legislatures
Each state chooses their electors. In the modern era, the states have determined the manner of choosing electors via a general election (Nov 3, 2020), however, this is done via state statutes in each of the states. Some have codified these statutes into their Constitutions. We must remember, however, that the constitutions and laws of the states are subservient to the US Constitution (see Article VI). Therefore, the power of the State Legislature to determine the manner of choosing electors is superior to state Constitutions and state laws and may be reclaimed especially in cases of fraud or where their own laws establishing the manner of choosing electors has not been followed.
Article II Section 1
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 role of Congress
The congress, in order to fulfill their duty to establish a uniform time of choosing electors has established two federal statutes:
According to federal law (3 U.S. Code § 5) known as the safe harbor provision, a state must determine its electors six days before the Electoral College members meet in person. – [Dec. 8, 2020]
According to federal law (3 USC Code § 7) 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. [Dec 14, 2020]
Unlike constitutional provisions, federal law can be altered in Congress. Therefore these dates are not in stone, if the Congress chooses to change them.
Article II Section 1
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
The Constitutional provisions above cannot change except via the amendment process spelled out in Article V. The above provisions have not changed, however certain other provisions of Article II are superseded by the 12th Amendment. Everything that happened during the general election with regard to the presidential race was an attempt to comply with states’ role in Article II Section I. If a state decides that the general election did not fulfill this provision, it is free to discard the results and fulfill the provision itself by simply choosing electors, which electors are free to cast votes for anyone they wish: Trump, Biden, Clinton, you, me, etc. as long as their president and vice presidential choice are not both residents of their home state. These electors vote independently from one another.
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;
Determining the Election Result
At a time appointed by federal statute (another date that can move), a joint session of Congress reviews the results of the individual state electors’ lists and counts the votes. Currently, the total number of electors is 538. If some states fail to send electors or others are disqualified by the Congress, this number could drop, but it will not increase unless new states are admitted to the union in the future. The winner must have a majority of electors.
— 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;
What if there is no Majority winner?
If the Electoral College votes are inconclusive, The House resolves the Presidential contest and the Senate resolves the Vice Presidential contest (remember: The VP is the president of the Senate). The top three vote-getters are considered for president and the top two vote-getters are considered for vice-president. The presidential candidate is determined in the House by one vote per state, and the vice president is determined by a vote of all the Senators. The president requires 26 votes, the vice president requires 51 votes. At least two-thirds of the states must be represented in the House and two-thirds of the Senators must be present to conduct the elections.
Amendment XII: The president determined in the House
— 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.
Amendment XII: The Vice President determined in the Senate
— 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.
When the states, uniformly decided to allow for general election as “the manner of choosing electors” the Political Parties usurped much of their power. Political Parties created the Presidential ticket which tied the President and Vice President together. They also proposed the idea of dedicated electors, which initiated the idea of candidates receiving electoral votes in blocks by state. Prior to these inventions, it would have been very difficult for one person to receive, for example, all fifty-five votes from the California Electoral College. They also established the primary system and the convention process. All of these concepts are fine, in themselves, however, the states are not bound by the Constitution to any of these mechanisms. The media does a disservice to the American people when it frames all the arguments within these convenient, yet artificial mechanisms.
The office of the President was designed to act as the chief ambassador to the world on behalf of the several states which created the Constitution. As their chief representative, the state legislatures were granted the power to choose a president. The House of Representatives was designed to be the People’s House, the Senate was designed to be the States’ house and the President was the representative to the World for the several states. This is why the people were never intended to directly elect the Senate or the President. Imagine how much easier it would be to conduct fair and lawful elections if our only concern was focused at the Congressional district level. You can easily see, that there would be no need for computerized voting systems under those circumstances.
Mark Affleck is n IT professional, a graduate of Drexel University with a BS in Information Systems, Mark is a husband and father of 4 children. In his youth, he and five brothers all attended Birch Camp. These days his eldest son and daughter are here at their 5th Camp. Mark enjoys genealogy and numismatics and donates his skills in archiving and web development to Camp Constitution.