Pennsylvania’s State Legislative Constitutional Authority Election 2020
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There has been much discussion regarding the General Assembly returning in December for special session and what role it plays in the certification of elections, as well as the presidential electors. I wanted to provide you with extensive information addressing constitutional, statutory and case law surrounding the General Assembly’s powers of when the General Assembly is in session, the role of the General Assembly in certifying elections and electors, Congress’ authority to act and constitutional actions taken to address the 2020 General Election.
Before doing that, I need to address the question I am asked most often - what I have done. Article VI, Section 3 of the Pennsylvania Constitution requires elected officeholders to take this oath:
I take this oath very seriously and have used it to guide my conduct while in office, including how to remedy the issues surrounding the 2020 General Election. Pennsylvania saw a record voter turnout for the 2020 General Election, and I thank everyone who voted. In the 88th Legislative District, which I represent, the presidential race was essentially a toss-up. Among 36,490 ballots cast, the difference was a mere 506 votes (according to Cumberland County’s preliminary results). To the question of elections, we need a process we can all be confident in, one that is fair and transparent. To date, I have supported every effort which conforms to my constitutional and statutory authority while working tirelessly to address many issues surrounding the 2020 General Election. This includes:
Election oversight and statutory changes will be a top priority when my fellow General Assembly members and I are sworn and seated on Jan. 5, 2021. During the few days the Legislature could operate following the 2020 General Election, my colleagues and I laid out much of the groundwork needed to start this process immediately following Swearing-In Day. I’ve also been asked frequently to present evidence as to what I can and cannot do as a member of the state Legislature: Congress’ Authority to Act The year, the Pennsylvania General Assembly cannot return into session prior to Jan. 5, 2021, and is constitutionally barred under Article VI, Section 13 of the Pennsylvania Constitution from not certifying elections or awarding presidential electors from the 2020 General Election differently from current Pennsylvania law; however, Congress still has a very important role to play as Federal law provides them the opportunity to object to Presidential Electors under 3 US Code, Section 15: 3 U.S. Code § 15 - Counting electoral votes in Congress
Sessions of the General Assembly Article II, Section 2 of the PA Constitution sets the term of service for new members, which means the term of current members needs to end by Nov. 30 at midnight. It is like a rule in baseball where two base runners cannot occupy the same base simultaneously. While the Dec. 1 date is specified in the PA Constitution, it forces the Nov. 30th into effect to ensure two people are not occupying the same elected office. § 2. Election of members; vacancies.
As the General Assembly is in between sessions, or in the interim, members of the General Assembly are not members elected. In Zemprelli v. Daniels (496 Pa. 247 (1981)), the Supreme Court stated: We therefore adopt the interpretation of Article IV, section 8(a) placed upon it by the Senate in its Rule XXII-8, and hold that "a majority of the members elected to the Senate" as employed in that subsection means "a majority of the members elected, living, sworn, and seated." In the interim, between Dec. 1, 2020, and Jan. 5, 2021, representatives and senators are not “sworn and seated, ” thus we cannot petition the governor to have Special Session during interim. Zemprelli v. Daniels case: https://law.justia.com/cases/pennsylvania/supreme-court/1981/496-pa-247-0.html. § 4. Sessions.
If the governor did call the General Assembly back into Special Session, the Election Code already has a provision in Section 1414 to ensure the Secretary of State provide the General Assembly their certification in order for members to be “sworn and seated.” § 1414.
The only mechanism to start session earlier than Jan. 5, 2021, is for the governor to call us into Special Session. The request to Gov. Wolf was already made and he rejected it. Role of the General Assembly in Certifying Elections and Electors The other aspect of the election is what role does the General Assembly play in the certification of election and the presidential electors. There are two provisions of the U.S. Constitution which provide part of the answer: Article I, § 4
Article II, § 1
Article I, Section 4 and Article II, Section 1 of the U.S. Constitution provides for the administration of how U.S. Senators and Representatives are elected and how the appointment of presidential electors occurs is vested with the state legislatures. These provisions ensure neither the judicial and executive branches of state government, nor the federal government, can interfere with this expressed power given to state legislatures on establishing the election of federal offices and deciding how presidential electors are appointed. However, state legislatures are not created by the U.S. Constitution but by each state’s constitution. Pennsylvania’s state legislature’s legislative power is created in Article II and Article III of the Pennsylvania Constitution. Article II, Section 1 of the Pennsylvania constitution underlines this power: § 1. Legislative power.
Article III of the Pennsylvania Constitution specifies how a bill becomes law. It stipulates the steps the General Assembly must take such as: legislation must be in each chamber for at least three days and must be presented to the governor for action (veto, signature, or no action after 10 days). Article III ensures the General Assembly cannot create or change laws through any others means than the legislative process. This specifically means the General Assembly cannot change or create laws through a simple or joint resolution. Therefore, Sen. Doug Mastriano’s resolution on certification of elections and presidential electors is unconstitutional, and he is dangerously attempting to circumvent our state constitution. The certification of election processes is already provided in the Election Code which was adopted in 1937. The certification process is laid out in Article XIV, Sections 1401 – 1418. Further the “winner take all” awarding of the presidential electors is provided under Sections 1417 and 1501 of the Election Code: § 1417. Persons Receiving Highest Number of Votes to Be Declared Elected.
§ 1501. Election of Presidential Electors.
The only process for these laws to be changed is the legislative process outlined in Article III of the Pennsylvania Constitution. They cannot be changed through a resolution or joint resolution adopted by the General Assembly or a chamber of the General Assembly. Further, the Pennsylvania Constitution goes a step further in Article IV, Section 13 and specifically prevents the General Assembly from passing any legislation which impacts an election which has already occurred: “. . . no such law assigning jurisdiction, or regulating its exercise, shall apply to any contest arising out of an election held before its passage.” Article VII Elections § 13. Contested elections.
There has also been much discussion of the Bush v. Gore case as it relates to state legislative power of presidential electors. Chief Justice William Rehnquist wrote a supplemental majority decision concerning “plenary authority” of state legislatures to allocate Electoral College votes. Rehnquist’s plenary authority argument stems from Article II, Section 1 of the U.S. Constitution, and the McPherson v. Blacker Supreme Court case. While Rehnquist’s supplemental majority decision in Bush v. Gore and the McPherson v. Blacker majority decision do give state legislatures the sole authority to establish how presidential electors are selected, it does NOT give state legislatures the ability to violate their own state constitutions and laws on legislative process: McPherson v. Blacker, 146 U.S. 1 (1892)
Bush v. Gore, 531 U.S. 98 (2000)
In both the McPherson and Blacker and the Rehnquist concurring majority decisions in Bush v. Gore, the court reaffirmed the state legislature’s sole constitutional power of deciding how presidential electors are selected. In both cases, the U.S. Supreme Court did not provide any ruling on state legislatures’ circumventing their legislative process established in their respected state constitutions or state statutes. What has been ultimately missed in the Bush v. Gore case was this clause “. . . limited only to the present circumstances” clearly reflecting the court’s desire to ensure this case, due to its specificities in Florida’s circumstance, to not set a precedent on future cases. |
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