Publius-Huldah's Blog

Understanding the Constitution

Mail-in voting? A “political question” which only State Legislatures and Congress may decide

By Publius Huldah

It has become obvious that one of the purposes of the COVID-19 scam is to bring about unrestricted mail-in voting in the toss-up and Red States so that the upcoming presidential election can be stolen by the Left for the senile Joe Biden and his constitutionally ineligible running mate, Kamala Harris.

On September 9, 2020, the Left achieved their goal for the Red State of Tennessee – unless the Tennessee State government enforces the US Constitution and rejects the federal judge’s unconstitutional order.

1. The absurd Order from the US District Court, Middle District of Tennessee

The Tennessee Code permits mail-in voting for certain categories of people [Tenn. Code § 2-6-201]; but requires those who register by mail to appear in person at the official place of voting and bring proof of identity when they vote for the first time [Tenn. Code § 2-2-115 (b) (7)].

Our elections are already tainted by the “ghost voters” described in Deroy Murdock’s article (published 2017) [here]. Murdock showed that throughout the United States, over 3.5 million persons who didn’t exist were registered to vote. But that number wasn’t sufficient to elect Hillary Clinton; so the Left needs more ghost voters. With mail-in voter registration, dead people can be registered to vote; and with unrestricted mail-in voting, those dead people can vote forever.

The Plaintiffs in this action claim to be distressed about the statutory requirement that first-time voters (who registered by mail) appear in person to vote because it forces them to choose between their “health” [they might catch COVID-19 if they go to the polls] and their right to vote. 1

On September 9, 2020, federal judge Eli Richardson issued a preliminary injunction which has the effect of setting aside, for the upcoming presidential election, the statutory requirement – established by the Tennessee Legislature – that persons who registered by mail, show up in person the first time they vote.

Here is Richardson’s 29 page Order.

So let’s cut 29 pages of bunk down to its essence: Richardson ruled that the Tennessee Legislature’s requirement that the first-time voters (who registered by mail) physically appear at the polls, imposes a “moderate burden” on voting rights; and the State failed to show the Court that Tennessee has a “legitimate state interest” to justify that burden. 2

Even worse: Throughout his Order, Richardson writes repeatedly [some 20 times] of Plaintiffs’ “First Amendment right to vote”; and says at the end of para 31 of his Order,

“…it is likely that Plaintiffs will prevail on their claim that the first-time voter requirement violates the First Amendment right to vote…”

But the First Amendment makes no mention of a “right to vote”. 3 Furthermore, in footnote 22 of his Order, the Judge says:

“In a prior order, the Court declined to address any suggestion that there is no First Amendment right to vote, for any purposes at all, by mail in particular… The Court was well aware that McDonald supports such a suggestion, but the Court simply did not need to opine on that matter. The Court likewise does not need to do so here…”

What? The Judge declined to address whether or not a First Amendment right to vote actually exists even though he has already determined that Plaintiffs are likely to prevail on their claim that the requirement that first-time voters (who registered by mail) show up in person to vote “violates the First Amendment right to vote”!

2. Why do Plaintiffs and the Judge repeatedly speak of a “First Amendment right to vote”, when the Judge isn’t prepared to say that such a right even exists?

They may be aware that the federal court has no jurisdiction over this case; but are attempting to fake it by claiming that the case “arises under the Constitution” via the First Amendment.4

The judicial power of the federal courts is limited to those few categories of cases enumerated at Article III, §2, clause 1, US Constitution. Not one of the categories invests the federal court with jurisdiction over this case. This case can’t be said to “arise under the Constitution” because there is no “right to vote” in the US Constitution; and the remaining categories listed in Article III, §2 are clearly inapplicable.

So it appears that Plaintiffs have fabricated a mythical “First Amendment right to vote” in order to provide a pretext for the federal court to exercise jurisdiction in this case – and that the federal judge let them get away with it.

3. Article I, §2, clause 1, US Constitution, negates the absurd claim that there exists a federal constitutional right to vote.

At Article I, §2, cl. 1, the States expressly retained their pre-existing power to determine the qualifications of voters:

“The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” [italics added]

Accordingly, those who are eligible to vote for Representatives to their State Legislature are the ones eligible to vote for Members of the federal House of Representatives. 5

With four later Amendments, the States agreed that they would not deny eligibility to vote to Citizens on account of race (15th Amendment), sex (19th Amendment), failure to pay a tax (24th Amendment), and for those 18 years of age or older on account of age (26th Amendment). It is important to note that these four amendments do not grant the “right” to vote to the persons described in the Amendments – merely that the suffrage will not be denied to those persons on account of their race, sex, etc.

So the States retained their original authority to set whatever qualifications for voting they deem appropriate, subject to their agreement that they would not deny suffrage on account of a Citizen’s being in one of those four categories.

So there is no “right to vote” set forth in the US Constitution. To the contrary, voting is a privilege granted or denied on the basis of whether applicants meet the qualifications for voting set forth within their State Constitution. 6

4. What does our Constitution say about how the President and Vice President are to be elected?

Article II, §1, cl. 2 and the 12th Amendment set forth the procedures for electing President and Vice President. Those procedures are described here under the subheadings, “Electors appointed by States were to choose the President” and “The 12th Amendment establishes procedures for voting by Electors”.

Our current procedures bear no resemblance to the Constitutional requirements. 7 It’s too late to obey the Constitution for the upcoming presidential election; so let’s see what our Constitution says about the federal elections to Congress.

5. US Constitution: the “times, places and manner” clause

Pursuant to Article I, §4, clause 1, State Legislatures have the power to prescribe the Times, Places and Manner of holding Elections for US Representatives 8 and US Senators.9

This clause also provides that Congress may make laws which override such State laws.

So the power to determine the time, place and manner of holding such federal elections is delegated exclusively to the Legislative Branches of the State and federal governments.

It is up to the State Legislatures to decide which “burdens” are appropriate with respect to the place of voting – with Congress having power to override what a State Legislature decides. The Judicial Branches of the state and federal governments may not substitute their views as to which “burdens” are appropriate and which are not. These are “political questions” granted to the Legislative Branches to decide; and the Judicial Branches – state and federal – may not lawfully interfere. 10

It is clear that “manner of voting” includes such matters as a requirement of personal presence at the place of voting. This is what our Framers contemplated, as shown by their words quoted in footnote 8 below. When a State legislature decides that personal presence is required – that decision can be overturned only by Congress.

So Judge Richardson’s view that the Tennessee Legislature doesn’t have a good reason for requiring first time voters (who registered by mail) to vote in person and present ID is irrelevant, and his Order is ultra vires.

6. What is the State’s remedy against the unlawful Court order?

So! You have seen that determining the “place and manner of voting” is a political power delegated exclusively to the State and federal Legislatures. It is thus a “political question”; and the federal [and state] Judicial Branches may not substitute their views for those of the Legislative Branches.

And since there is no “right to vote” contained in the US Constitution, the Federal District Court has no jurisdiction over this case. This case doesn’t “arise under the Constitution” or fit within any of the other categories of cases enumerated at Article III, §2, cl.1, US Constitution.

So the pretended Order of September 9, 2020, is ultra vires and lawless, and the State of Tennessee has no obligation to obey it.

The duty of the elected and appointed State and local officials is to obey the US Constitution. When the dictates of a federal [or State] judge contradict the Constitution, State officials must side with the Constitution and against the judge. 11

And what will happen if the State of Tennessee refuses to comply with the Judge’s order? The Judge can’t enforce his Order. He has to depend on the Executive Branch of the federal government to enforce it. 12 Do you believe that President Trump will send in federal troops to force the State of Tennessee to comply with Judge Richardson’s ultra vires Order?

Note:  In addition to the Offices of President & Vice-President, many other offices will also be on the Ballot:  the entire US House of Representatives is up for grabs.  So is the House in the State Legislatures all over the Country.  1/3 of the US Senate will be on the ballot; and a proportional number of Senate Seats on State Legislatures throughout the Country will be on the ballot.

EVERY REPUBLICAN LEGISLATOR NEEDS TO UNDERSTAND:  Your Seat is likely to be stolen in this upcoming election.

So you better wake up and get your State Legislature to smack down the federal & state judges who are assisting the Left in stealing your Seat.  And if Congress doesn’t act, they will lose control of the Senate and most likely every seat in the House.

Why should the Left stop with stealing only the Presidential election when they can also steal YOUR seat?

Endnotes:

1 How do they get their groceries?

2 Order at paras 29 – 31.

3 The First Amendment says,

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The First Amendment is a limitation on Congress’ powers to make laws – it doesn’t grant a “right” to vote!

4 In Federalist No. 80 (2nd para), Hamilton states that cases “arising under the Constitution” concern

“…the execution of the provisions expressly contained in the articles of Union [the US Constitution]…” [boldface added].

In the 3rd & 13th paras, Hamilton illustrates what “arising under the Constitution” means: He points to the restrictions on the power of the States listed at Art. I, §10 and shows that if a State exercises any of those powers, and the fed. gov’t sues the State, the federal courts have authority to hear the case.

5 The 17th Amendment [ratified 1913] provides that those who are eligible to vote for Representatives to the US House are eligible to vote for US Senators.

6 With the National Voter Registration Act of 1993, Congress usurped the retained power of the States to set and enforce eligibility standards for voting. In a series of 3 papers, the last of which is here, I show how the assertions about The Federalist Papers made by the 9th US Circuit Court of Appeals and the Supreme Court, in their attempts to justify their unconstitutional judgments, are false.

7 Our disregard of these constitutional provisions doubtless contributed to the creation of the current chaos.

8 Our Framers told us what “times”, “places” and “manner” mean:

In Federalist No. 61 (4th & 5th paras), Alexander Hamilton shows that “Time” refers to when elections are held. He explains that under the Articles of Confederation [our 1st Constitution], States had been conducting elections from March to November; and that uniformity in the time of elections is necessary “for conveniently assembling the [federal] legislature at a stated period in each year”.

“Place”: Hamilton also points out that the suffrages of citizens living in certain parts of the States could be defeated by restricting the place of election for Representatives in the House to “an INCONVENIENT DISTANCE from the elector” (2nd para). [caps are Hamilton’s].

“Manner” of holding Elections refers to such things as paper ballots or show of hands, the place of voting, and whether the States will be divided into congressional districts for purposes of electing Representatives. James Madison discusses the “Manner” of holding Elections in The Records of the Federal Convention of 1787, vol. 2, August 9, 1787:

“Mr. Madison: … the Legislatures of the States ought not to have the uncontrouled right of regulating the times places & manner of holding elections. These were words of great latitude. It was impossible to foresee all the abuses that might be made of the discretionary power. Whether the electors should vote by ballot or vivâ voce, should assemble at this place or that place; should be divided into districts or all meet at one place, shd all vote for all the representatives; or all in a district vote for a number allotted to the district; these & many other points would depend on the Legislatures and might materially affect the appointments …. what danger could there be in giving a controuling power to the Natl. Legislature? Of whom was it to consist? 1. of a Senate to be chosen by the State Legislatures … 2. of Representatives elected by the same people who elect the State Legislatures…” [emphasis added]

Rufus King in the Massachusetts Convention said in The Records of the Federal Convention of 1787, vol. 3, January 21, 1788:

“Hon. Mr. King rose … It was to be observed, he said, that in the Constitution of Massachusetts, and other States, the manner and place of elections were provided for; the manner was by ballot, and the places towns; for, said he, we happened to settle originally in townships…” [emphasis added]

9 When Art. I, §4, cl. 1 was drafted, the State Legislatures were to choose the State’s Senators to the US Congress – so the “place” of choosing the US Senators would be wherever the Legislature met. With ratification of the 17th Amendment, Congress gained oversight over State laws addressing the “place” of election of US Senators.

10 In Marbury v. Madison [link], decided 1803, the Supreme Court explained the concept of “political powers” and that the manner in which political powers are exercised is beyond the reach of the courts:

“By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. …whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and, being entrusted to the Executive, the decision of the Executive is conclusive … [and] can never be examinable by the Courts.”

Marbury addresses the political powers exercised by the President. That same deference to the exercise of political powers has long been extended to the acts of the other political branch, Congress. Where the Constitution grants a political power to Congress, the manner in which Congress exercises the discretion is also beyond the reach of the Courts. So, for example, if Congress were to exercise the power granted to it by Article I, § 4, clause 1, to make a law banning mail-in voting; its action can never be examined by the Courts – the Courts may not substitute their views for those of Congress.

11 Marbury v. Madison also stands for the Great Principle that when an Act of one branch of government violates the Constitution, the other Branches must obey the Constitution and not the unlawful Act.

12 Alexander Hamilton made this same point over 200 years ago – see Federalist No. 78 (6th para). If law schools had made The Federalist Papers required reading, our Country wouldn’t now be in such a mess.

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September 20, 2020 Posted by | 12th Amendment, 1st Amendment, Article I Sec. 4, COVID-19 scam, dead voters, Elections Clause, Eli Richardson, ghost voters, Joe Biden, Kamala Harris, mail-in voter registration, Mail-in voting, Nullification, political questions, Red States, Times Places and Manner clause, Toss-up states, US District Court Middle District of Tennessee, voter registration | , , , , , , , , , , , , , , , , , , , , | 31 Comments

Don’t Fall for the National Popular Vote – Enforce the Electoral College!

Here are the Exhibits referenced in the video: Be a Berean and look at them!

The red & blue map

The Chart

George Mason’s comment on July 17, 1787 re election of chief Magistrate [from James Madison’s Journal of the Federal Convention of 1787].

George Washington’s letter of October 3, 1788 to Alexander Hamilton.

California’s Assembly Bill No. 60 (passed 2013) permitting illegal aliens to get drivers’ licenses.

California’s Assembly Bill No. 1461 (passed 2015) establishing “Motor Voter” procedures where, when one gets a drivers’ license, one is automatically registered to vote.

Funding for FairVote.

Gallup Poll showing declining support for a national popular vote.

The various voting numbers came from HERE.

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May 5, 2017 Posted by | 12th Amendment, Election of President, Electoral College, Electors, National Popular Vote | , , , , , , , | 22 Comments

WHAT HAPPENS IF HILLARY DIES BEFORE THE ELECTION? WHAT HAPPENS IF SHE IS ELECTED, BUT DIES BEFORE TAKING OFFICE?

By Publius Huldah

The system we now use to elect presidents and vice presidents is unconstitutional. Our Constitution doesn’t permit political parties to hold primaries & national conventions to select nominees for their party.

Instead, the Electors of each State are to meet within their own State and THEY cast the votes for their State for president; and then in a second ballot, THEY cast the votes for their State for vice president. Then each group of Electors sends their list of persons voted for to the President of the Senate who, on a specified date, counts the votes.

The 12th Amendment specifies the procedures we are supposed to follow.

I have two papers on this: The most recent is here: https://publiushuldah.wordpress.com/…/trashing-the-12th-am…/

The earlier article I wrote on this topic illustrates with examples, precisely how the voting for president and vice president is to be done:  https://publiushuldah.wordpress.com/2012/02/09/national-popular-vote-goodbye-sweet-america/   and look under the subheading, The 12th Amendment Establishes Procedures For Voting By Electors.

So the Constitution doesn’t address what happens if Hillary dies before the election, because under the Constitution, her nomination [like Trump’s] is unconstitutional.

We abandoned the Rule of Law long ago.

We are now under the Rule of Man.   So the Democrat party will do whatever they want to do about replacing her if she dies before the election.

Section 3 of the XX Amendment addresses what happens if Hillary is elected but dies before she takes office:  Tim Kaine will be President.

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September 21, 2016 Posted by | 12th Amendment, 20th amendment, Election of President, Electoral College, Electors, Rule of Law, Rule of Man | , , , , , , , , , | 18 Comments

Trashing the 12th Amendment with the National Popular Vote

By Publius Huldah

The compact for a National Popular Vote (NPV) is a destructive scheme. Yet it’s been approved by several States; and is pending in others. Since the text of the compact no longer seems to be set forth on the NPV website, we’ll look at the NPV bill previously filed in Tennessee.

In a nutshell, the compact seeks to evade the 12th Amendment to our Constitution (where the States elect the President); and substitutes a national popular vote where inhabitants of major metropolitan areas elect the President.

The Constitution our Framers gave us

The federal government created by our Constitution is a Federation of Sovereign States united under a federal government for those limited purposes itemized in the Constitution; with all other powers reserved by the States or the People.

So that The States – The Members of the Federation – could maintain their independence and sovereignty, our Framers wrote these provisions into our Constitution:

  • State Legislatures were to choose the U.S. Senators for their State (Art. I, §3, cl. 1); and,
  • The States, as separate political entities, were to elect the President (Art. II, §1, cls. 2 & 3).

The People were to elect only their Representatives to the House (Art. I, § 2, cl.1).

James Madison explains in Federalist No. 45 (7th para), why this ensured that The States would maintain control over the federal government:

“The State governments may be regarded as constituent and essential parts of the federal government …Without the intervention of the State legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it. The Senate will be elected absolutely and exclusively by the State legislatures. …Thus, each of the principal branches of the federal government will owe its existence more or less to the favor of the State governments …” [boldface mine]

The result of State Legislatures choosing the U.S. Senators and controlling the election of the President [via the selection of Electors], was that the States would be able to control the federal government.

The 17th Amendment

But we threw away one of these safeguards when we foolishly ratified the 17th Amendment with the popular election of U.S. Senators. This is how The States – The Members of the Federation – lost their representation in Congress and their control of the Senate.

Art. II, §1, cl. 2 and the 12th Amendment

We abandoned the other safeguard when we foolishly ignored the procedures in the 12th Amendment where small bodies of specially chosen wise and prudent men (Electors) made the selections of President and Vice President for their State. We allowed Electors to become rubber stamps for the popular vote in their State.

Our Framers didn’t want popular election of the President because they recognized that People are easily manipulated by those who take advantage of their “hopes and fears”, to steer them towards candidates favored by powerful groups (Federalist No. 64 (3rd & 4th paras; Federalist No. 68, etc.).

Furthermore, under the 12th Amendment, the electoral votes of each State are split according to how the Electors vote. If Tennessee obeyed the 12th Amendment, it would work like this when selecting President:  5 Electors vote for Candidate X; 4 vote for Candidate Y; and 2 vote for Candidate Z. Those would be the vote totals for President which would be sent to Congress. The same procedures are to be followed in a separate vote for Vice-President. 1 The “winner takes all” practice followed in most States is unconstitutional!

How The National Popular Vote Scheme Will Work

Under the scheme incorporated in the NPV bill previously filed in Tennessee, all of Tennessee’s electoral votes would be awarded to the presidential candidate who receives the most popular votes in all 50 States and the District of Columbia.

The wording of the compact is deliberately obscure. In plain English, this is what it does:

Art. II

Each Member State will conduct a statewide popular election for President and Vice President.

Art. III

(a) & (b) The State Election official in each Member State will add up the votes cast in all the States and the D.C. to get the total number of votes cast nationally for each presidential ticket. The State official will then designate the presidential ticket with the largest number of votes nationally as the “national popular vote winner”.

(c) & (g) Electors will then be appointed in each Member State who are to cast all their votes for the national popular vote winner.

So! If the popular vote in Tennessee is for James Madison, but the total national popular vote favors Adolf Hitler, then all of Tennessee’s 11 Electoral Votes are awarded to Adolf Hitler.

Indeed, the winner of the national popular vote will end up with all the electoral votes for every State.  And do not think that the winner will fail to claim a “Mandate” for whatever he wants to do.

 The States Can’t Lawfully Enter Into A Compact Which Violates The U.S. Constitution!

Every aspect of the NPV violates the 12th Amendment.  It sets up a method of electing the President and vice-President which is altogether repugnant to our Constitution.

Furthermore, Art. I, §10, last clause, prohibits States from “enter[ing] into any Agreement or Compact with another State” “without the Consent of Congress”.  So, whether the NPV Compact also violates Art. I, §10, last clause, depends on whether Congress consents to it. But Congress may not lawfully consent to unconstitutional compacts of the States!

Under The NPV Scheme, Votes From Major Metropolitan Areas Will Decide Presidential Elections.

Most of the Population of these United States is located in a few major metropolitan areas. Under the NPV scheme, these areas would decide the elections for President!

See this “extremely detailed map” which depicts the areas which voted for Trump (shown in red) and the areas which voted for Clinton (shown in blue) in the last  presidential election.

The NPV is not about “making every vote count”. The NPV is about guaranteeing that every future presidential election is decided by inhabitants of major metropolitan areas (those few areas shown in blue).

Arguments of the NPV lobby

♦They complain that State winner-take-all statutes award all of a State’s electoral votes to the candidate who gets the most popular votes in the State.

But their scheme substitutes a national winner-take-all system! That’s better?

♦They complain that presidential candidates pay no attention to the issues of concern to voters in States where the statewide outcome is a foregone conclusion.

But presidential candidates aren’t supposed to pay attention to anything other than those few issues which have been delegated to the federal government in our Constitution! The notion that the federal government’s job is to handle the different issues which concern people of particular geographical locations, or gender, or sexual orientation, or religion, or race, or ethnicity, or social background, and so forth, is poison. That’s not the job of the federal government, and it’s not the job of the President!

♦They complain that battleground states get more money in federal grants, more presidential declarations of disaster, more exemptions from Superfund enforcement, and more exemptions from the “no child left behind” law.

And I ask, what do federal grants, presidential declarations of disaster, Superfund enforcement, and federal education dictates – all have in common? They are all unconstitutional! There is no authority in the Constitution for any of these programs.

♦They complain that four times in our history, candidates have been elected who didn’t win the most votes nationwide.

Well, boo hoo! The purpose of the Electoral College is so smaller States will have a voice – our Framers rejected the idea of a national popular vote.

♦They complain that presidential candidates spend money and have campaign events only in battleground States.

But with a national popular vote, there won’t be any battleground States because it will be a foregone conclusion that every election will be won by the candidate who appeals to those in the large urban areas.

The NPV scheme makes it easy to steal a presidential election

Joseph Stalin said, “The people who cast the votes don’t decide an election, the people who count the votes do.”

We are told that Clinton got 2.8 million more votes nationwide than did Trump. Whether she really did or didn’t isn’t the point because that’s what the vote counters said.

With the NPV scheme in place, the vote counters can fabricate enough votes to steal every presidential election.  Even if an election were honest in most States – a few large States where cheats control the machines – can throw a national election.

The number of Electoral Votes is fixed at 538. Cheaters can’t manufacture Electoral Votes out of thin air. But the number of popular votes said to have been cast in a presidential election is limited ONLY by the depth of the depravity of corrupt party officials, corrupt campaigns, and corrupt election officials.

Here’s another way to steal the election:

The NPV bill describes how votes will be reported by States who joined the Compact: The chief election official of each State – that’s the Secretary of State – is to communicate to the other State Secretaries of State, the number of popular votes cast in his State. These Reports are considered to be “conclusive”.

And that’s how each State Secretary of State finds out who won the national popular vote – it’s what the other Secretaries of State tell him – and what they tell him is “conclusive”.

The NPV scheme gives illegal aliens power to choose our President

In California, Clinton supposedly got 4.3 million more votes than Trump.

How many of these votes were cast by illegal aliens? California now allows illegal aliens to vote in elections:

During 2013, California passed a law, AB 60, permitting illegal aliens to get driver’s licenses.

During 2015, California passed a Motor Voter Law, AB 1461, which provides that when you get a driver’s license in California, you are automatically registered to vote. This law pays lip service to “citizens” voting – but there are no provisions for requiring “citizenship” as a prerequisite to being registered to vote.

And the Law specifically says that if a person who is ineligible to be registered to vote is registered and then votes, that person will be presumed to have acted with official authorization and shall not be guilty of fraudulently voting unless that person willfully votes knowing he isn’t entitled to vote.

So yes, illegal aliens who have driver’s licenses can vote in California – they were automatically registered to vote when they got their drivers’ licenses. If they’re caught, all they have to say is, “I thought I was entitled to vote since the State DMV registered me to vote.”

How many illegals made up the 8,753,788 votes Clinton supposedly got in California? With a NPV, this kind of shenanigans in just one large State can determine the outcome of an election.

What Should We Do?

Oppose the National Popular Vote scheme – do not let the few blue areas determine our Fate.

Return to the 12th Amendment. We must dismantle the present unconstitutional and corrupt system and return to the method of electing the President and Vice President established in our Constitution. State Legislators could restore to their States right now the power to control the President!  All States have to do is obey the 12th Amendment! Also, specially chosen Electors are far more likely to choose good Presidents than the ignorant masses which fill our major cities.

Even in its present perverted form, the “Electoral College” serves two important purposes: (1) It balances the influence of the heavily populated urban areas with the more sparsely populated rural areas; and (2) gives the smaller States a voice in the election of President.

As a People, we need to STOP being so eager to amend a Constitution we have never read and don’t understand.

Endnote:

1 For an illustration of how voting under the 12th Amendment is to be conducted, see THIS under the subheading, The 12th Amendment Establishes Procedures For Voting By Electors.”

Revised Jan 5, 2019

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February 19, 2016 Posted by | 12th Amendment, 17th Amendment, Election of President, Electoral College, Electors, National Popular Vote | , , , , , , , , , , , | 31 Comments

Who Makes the Ruling that Someone is not Qualified for the Office of President of the United States?

By Publius Huldah

According to the original intent of our Constitution, Ted Cruz & Marco Rubio are not eligible to be President because their fathers weren’t US citizens at the times they were born. So they are not “natural born citizens”.

So! How is this handled? Who calls it?  Who makes the ruling? Do we “file a lawsuit” and let federal judges decide? “Slap your hands!”, our Framers would say. They would say, “READ THE CONSTITUTION AND SEE WHAT IS SUPPOSED TO HAPPEN!”

[Our lives would be so much simpler – and our Country so much better off – if we read & supported our Constitution.]

Read the 12th Amendment. That sets forth the procedures for election of President and VP. Note that ELECTORS are supposed to be the ones making the selection – not The People. [There is a reason for that.]  For an illustration of how this works, go HERE and read the subheadings,  “Electors” Appointed by States Were To Choose The President!  and The 12th Amendment Establishes Procedures For Voting By Electors.

So! Assume we followed the Constitution on this issue and we get to the part where Congress is counting the votes as provided by 12th Amendment. And Lo! Congress discovers that the person who got the most votes for President is NOT QUALIFIED by reason of age, or not being a natural born citizen, or not having been for at least 14 years a Resident within the United States.

Obviously, it’s Congress’ job to make the ruling – to make the call – on whether the President and VP – selected by the ELECTORS – are qualified under Art. II, Sec. 1, clause 5.

So what happens if Congress finds that the person with the most votes for President is not qualified? We look to Sec. 3 of the 20th Amendment. It tells us what happens. If the President elect has failed to qualify, then the VP elect shall act as President… Now, read the rest of that Section. We would also need to see whether Congress has made any of the authorized laws providing for such contingencies.

So, under the Constitution as written, it is Congress’ job to make the call as to whether the President elect and the VP elect are qualified.

This is NOT an issue for the federal courts to decide. That is because this is a “political question” – not a “legal question”. The power to make the ruling as to whether the president elect or the VP elect are qualified has been delegated to CONGRESS. Traditionally, federal courts have “abstained” from deciding “political questions”.

We study this in our first year constitutional law class, when we study judicial “abstention” from certain kinds of cases including cases which involve “political questions” or the exercise of powers delegated to the Legislative or Executive branches. When a power is delegated to one of the “political branches” (Legislative or Executive), the federal courts (the “legal branch”) have traditionally declined to interfere and substitute their judgment for that of the “political branch” to which the Power was delegated.

And what if Congress gives an ineligible person a pass – as they did with obama? WELL THEN, SHAME ON US – BECAUSE WE ARE THE ONES WHO ELECTED THOSE IGNORANT COWARDS TO OFFICE!

 

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February 4, 2016 Posted by | 12th Amendment, 20th amendment, Election of President, Electoral College, Electors, Judicial abstension, natural born citizen, political questions, Presidential Electors | , , , , , , | 57 Comments

National Popular Vote: Goodbye, Sweet America.

By Publius Huldah.

Our Constitution is under constant attack.1   One of the most pernicious attacks is being waged by those who seek to override the constitutional provisions under which The States, as political entities, elect the President; and to replace it with a national popular vote (NPV) under which inhabitants of major metropolitan areas will choose the President.

What Form of Government Did We Create In Our Constitution?

Before you can see why it is so important that The States elect the President, and why the NPV is so execrable, you must understand how our “federal” government was structured and intended to operate. “Federal” actually referred to the form of the national government created in our Constitution, and to the division of powers between the national government and The States.

The “Federation” created by our Constitution is an alliance of independent and sovereign States associated together in a “confederation” with a national government to which is delegated authority over the States in specifically defined areas ONLY(national defense, international commerce & relations; and domestically, the creation of an uniform commercial system:  weights & measures, patents & copyrights, a monetary system based on gold & silver, bankruptcy laws, and mail delivery). Those enumerated powers are the only areas wherein the national government has lawful (constitutional) authority over The States.  In all other matters, the States retained supremacy, independence, and sovereignty. 2

So that The States – The Members of the Federation – could maintain their independence and sovereignty, 3 our Framers wrote these provisions into our Constitution:

  • State Legislatures were to choose the two U.S. Senators for their State (Art. I, Sec. 3, cl. 1); and,
  • The States, as separate political entities, were to elect the President (Art. II, Sec. 1, cls. 2 & 3).

The People were to elect only their Representatives to the House (Art. I, Sec. 2, cl.1).

James Madison, Father of Our Constitution, explains in Federalist No. 45 (7th para), why this ensured that The States would maintain control over the national government:

The State governments may be regarded as constituent and essential parts of the federal government …Without the intervention of the State legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it. The Senate will be elected absolutely and exclusively by the State legislatures. …Thus, each of the principal branches of the federal government will owe its existence more or less to the favor of the State governments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them…[boldface mine] 4

State Legislatures Were To Choose The U.S. Senators!

So! The appointment of Senators by State Legislatures was to “secure the authority” of the State governments in the federal government, and to preserve “the sovereignty remaining in the individual States” (Federalist No. 62, 3rd & 5th paras).  5

Federalist No. 62 goes on to show that another advantage of State Legislatures appointing U.S. Senators is

…the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States … (6th para) [boldface mine]

Do you see?  Since Representatives to the House were chosen by popular vote of the People, and U.S. Senators were to be chosen by the State Legislatures, no law could get passed by Congress unless it was approved by the People (via their Representatives) and by The States (via the State appointed U.S. Senators).

This is what our Framers gave us to protect us from a usurpatious Congress.

 “Electors” Appointed by States Were To Choose The President!

Article II, Sec. 1, cl. 2 provides that each State is to appoint, in such Manner as the State Legislature may direct, a Number of Electors equal to the total number of Senators and Representatives for that State. These Electors were supposed to be the ones who actually voted for President and Vice President!

Our Framers never intended for the President to be elected by popular vote. While they recognize in Our Declaration of Independence (2nd para) that The People are the source of political authority, 6  they knew that all history demonstrates that The People lack the knowledge, wisdom and judgment to make wise choices when voting for politicians.

In Federalist No. 64 (3rd & 4th paras), 7 John Jay recognizes that People are ignorant and easily manipulated by small groups who take advantage of their “hopes and fears”, to steer them towards candidates favored by the small groups.

Accordingly, the Electors would be “select assemblies” “composed of the most enlightened and respectable citizens” who would vote for those men who were “the most distinguished by their abilities and virtue”. Furthermore, Electors would not likely “be deceived by those brilliant appearances of genius and patriotism” which “sometimes mislead as well as dazzle”.

In all of Federalist No. 68, Hamilton explains the wisdom of having specially selected Electors who were “most likely to possess…information and discernment” elect the President. He also warns of

… the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? … (5th para)

and shows why specially selected Electors in each State could best protect us from such scheming foreign powers. 8

Now that we see why Our Framers provided that Electors from the Member States were to choose the President of The Federation, let us see how the voting was – and is – to be conducted.

The 12th Amendment Establishes Procedures For Voting By Electors.

The long ignored 12th Amendment (ratified 1804) sets forth binding procedures for taking and counting Electors’ votes. This is what it requires:

The Electors in each State are to meet and cast their votes for President; and then vote separately for Vice President.  Say a State has 13 Electors, and the voting goes like this:

For President:

Mr. Falconer – 6 votes

Mr. Lossie – 5 votes

Mr. Bell – 2 votes

For Vice President:

Mr. Cross – 5 votes

Mr. Duncan – 5 votes

Mr. Nichols – 3 votes.

The Electors sign and certify this list and send it to the President of the Senate. On the appointed day, and in front of a joint session of Congress, the President of the Senate counts the Electors’ votes from The Member States. The person with the greatest number of votes for President becomes the President (if he has a majority).  The person with the greatest number of votes for Vice President becomes the Vice President (if he has a majority). If one or both don’t have a majority – well, here’s a novel idea: read the Amendment to find out what happens.

THIS is how Our Constitution – which all those in the political process took SWORN OATHS to obey – requires the elections of President and Vice President to be conducted.

So! THE STATES, as political entities and as THE MEMBERS of the Federation, are the ones who were to choose the President. This is what our Framers gave us to protect us from a usurpatious President.  It also gave the smaller States a voice in the selection of President.

The Purpose Of Our Framers’ Two Gifts.

So!  Do you see?  The result of The State Legislatures choosing the U.S. Senators and controlling the election of the President would be that The States would be able to control the national government and keep it in line.

The 17th Amendment.

But we threw one of Our Framers’ Gifts away when, in 1913, we foolishly ratified the 17th Amendment and the popular election of U.S. Senators. This is how The States – The Members of the Federation – lost their representation in Congress and their control over that body.

And the Legislative Branch of the national government became a body for sale to campaign donors. U.S. Senators now answer to their campaign donors, not to their States.

Ignoring The 12th Amendment.

We threw away Our Framer’s second Gift when we foolishly accepted a new system where national political parties handle the elections of President and Vice President. Thus, instead of being the small bodies of specially chosen wise and prudent men who actually made the selections; Electors became rubber stamps for the popular vote in their States. Instead of the Electors choosing the Vice President, party bosses – then party nominees – chose the “running mates”. Instead of the Electors’ votes being transmitted to the President of the Senate with the total votes listed for each person receiving votes, States began awarding all their “electoral votes” to the person who won the popular vote in their State.

This is how The States – The Members of the Federation – lost their control over the President.

The President became a person for sale to campaign donors. Presidents now answer to their donors, not to The Member States.  And the small groups and “foreign powers” who got the President elected call the shots.

How The National Popular Vote Will Work.

Here is the nefarious 888-word interstate compact. It is written in the bureaucratic style favored by those who seek to confuse, confound and conceal. Their Explanation of National Popular Vote Bill expressly discloses, however, that

Under the National Popular Vote bill, all of the state’s electoral votes would be awarded to the presidential candidate who receives the most popular votes in all 50 states and the District of Columbia.

In other words, if the popular vote in Virginia is for James Madison, but the total national popular vote favors Adolf Hitler, then all of Virginia’s 13 Electoral Votes are given to Adolf Hitler.

Indeed, the winner of the national popular vote will end up with all the electoral votes for every State.  Do you see?  And do not think that the winner will fail to claim a “Mandate” for whatever he wants to do.

The States Can’t lawfully Enter Into A Compact Which Violates The U.S. Constitution!

1. Every aspect of the NPV violates Art. II, Sec. 1, cl. 2 and the 12th Amendment.  So it’s altogether unconstitutional. Compare the detailed procedures set forth in Our Constitution with the proposed NPV!  It sets up a method of electing the President and vice-President which is altogether repugnant to what Our Constitution requires.

2. Article V sets forth the exclusive methods of amending the Constitution. “Compact among the States” is not one of the authorized methods of amending the Constitution. So the NPV Compact also violates Article V.

3. Furthermore, Article I, Sec. 10, last clause, prohibits States from “enter[ing] into any Agreement or Compact with another State” “without the Consent of Congress”.  So, whether the NPV Compact also violates Art. I, Sec. 10, last clause, depends on whether Congress consents to it. But Congress may not lawfully consent to unconstitutional compacts of the States!

Under The National Popular Vote Scheme, Votes From Major Metropolitan Areas Will Decide Presidential Elections.

Most of the Population of these United States is located in a few major metropolitan areas. Under the NPV scheme, these major metropolitan areas would decide the elections for President!

Please look at this 3D map showing how these major metropolitan areas actually voted in the last presidential election: http://www.washingtonpost.com/wp-srv/politics/interactives/campaign08/election/uscounties.html

They all voted for Obama.

The NPV is not about “making every vote count”. The NPV is about guaranteeing that every future presidential election is won by the candidate which appeals to the urban mobs.

Who Is Behind This Plot To Impose The National Popular Vote?

The organizations who have endorsed the NPV  include four organizations (Common Cause, NAACP, Defenders of Wildlife Action Fund, and Public Citizen) which, according to this website, have received funding from George Soros and his Open Society Institute.

Our public school educated People are so woefully ignorant that they are incapable of making wise decisions in presidential (or senatorial) elections. Google ignorant stupid americans – you will get 65,000,000 hits.

This review of Historian Rick Shenkman’s book, “Just How Stupid Are We?”, points out that

…Only 2 of 5 voters can name the three branches of the federal government. And 49 percent of Americans think the president has the authority to suspend the Constitution ….

These are the ones who are manipulated to vote the Will of the few, and of the “foreign powers” Hamilton warned us about, who fund and control the hard left.

Oh, State Legislators! Awake! The progressive leftists behind the NPV want a national popular vote for the same two reasons that our Framers opposed having Presidents elected by popular vote.

What Should We Do?

Repeal the 17th Amendment. We must henceforth elect to Congress only those who are committed to repealing the 17th Amendment. This is the only way The States can regain control of Congress.

Return to the 12th Amendment. We must dismantle the present unconstitutional and corrupt system and return to the method of electing the President and Vice President established in our Constitution. State Legislators could restore to their States right now the power to control the President! All States have to do is obey the 12th Amendment! Also, specially chosen Electors are far more likely to choose good Presidents than are the ignorant masses which fill our major cities.

No State primaries. No national conventions. No expensive advertising which enriches liberal progressive TV networks, and excludes the man who is not wealthy. No tampered with voting machines. No cartoon characters or dead people voting. No Black Panthers intimidating white voters with impunity. No unconstitutional federal laws (e.g. McCain-Feingold) which unlawfully restrict political speech. No promises of future favors made by candidates to donors for campaign contributions. In short, the corruption which permeates our present system would be gone.

But in the meantime, even in its present perverted form, the “Electoral College” serves two important purposes. (1) It balances the influence of the heavily populated urban areas with the more sparsely populated rural areas (2) And it gives the smaller States a voice in the election of President. PH

Endnotes:

1 E.g., those clamoring for a con con and the Balanced Budget Amendment, Ruth Bader Ginsberg, and other judges and politicians who despise Our Constitution.

2 In Federalist No. 45 (9th para), Madison says,

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. [boldface added]

Yet anarchists who have infiltrated libertarian groups maliciously assert that Our Constitution is a “statist document”!

3 Alexander Hamilton warned that we must not permit the States to be merged into one national government.  In Federalist No. 32 (2nd para), he writes,

An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention [the Constitution] aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States…. [caps are Hamilton’s; boldface mine]

See also Federalist No. 39, 6th para (Madison).

And from Thomas Jefferson’s letter of Feb. 2, 1816 to Joseph C. Cabell (1st para)

…the way to have good and safe government, is not to trust it all to one, but to divide it among the many, distributing to every one exactly the functions he is competent to. Let the national government be entrusted with the defence of the nation, and its foreign and federal relations; the State governments with the civil rights, laws, police, and administration of what concerns the State generally; the counties with the local concerns of the counties, and each ward direct the interests within itself. It is by dividing and subdividing these republics from the great national one down through all its subordinations, until it ends in the administration of every man’s farm by himself; by placing under every one what his own eye may superintend, that all will be done for the best. What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and power into one body… [boldface mine]

4 See also Federalist No. 39 (4th & 11th paras) and Federalist No. 60 (3rd para).

5 Federalist No. 62:

… on the appointment of senators by the State legislatures. Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed…is recommended by … giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems. (3rd para at II) [boldface mine]

…the equal vote allowed to each State is …a constitutional recognition of the portion of sovereignty remaining in the individual States and an instrument for preserving that residuary sovereignty… [in order to guard] … against an improper consolidation of the States into one simple republic. (5th para) [boldface mine]

6 As opposed to the State itself being the source of political authority, as with the Western European “divine right of  kings” model (which is based on a perversion of Scripture), and the German statists, such as Hegel and his progeny.

7 Federalist No. 64  (4th para):

As the select assemblies [Electors] for choosing the President … will … be composed of the most enlightened and respectable citizens, there is reason to presume that their … votes will be directed to those men … who have become the most distinguished by their abilities and virtue. … the electors … will not be liable to be deceived by those brilliant appearances of genius and patriotism, which … sometimes mislead as well as dazzle. … it is fair to argue, that as an assembly of select electors possess …the means of extensive and accurate information relative to men and characters, so will their appointments bear at least equal marks of discretion and discernment…

8 Federalist No. 68:  If the appointment of the President depended on any preexisting body of men, they “might be tampered with beforehand to prostitute their votes” in favor of the foreign powers.  Accordingly,

… the people of each State shall choose a number of persons as electors, equal to the number of senators and representatives of such State in the national government, who shall assemble within the State, and vote for some fit person as President. Their votes, thus given, are to be transmitted to the seat of the national government…(7th para) PH

February 9, 2012

Postscript Feb. 14, 2012:  In this article,  Phyllis Schlafly  of the National Eagle Forum takes a different approach in showing why the NPV is a BAD idea and basically dishonest.
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February 9, 2012 Posted by | 12th Amendment, 17th Amendment, Election of President, Election of U.S. Senators, Electoral College, Electors, National Popular Vote, Presidential Electors | , , , , , , , , , , , | 104 Comments

   

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