Seditionist Senators and Congressmen plan to violate “safe harbor” provision of Electoral Count Act of 1887

DRAFT

See

1) Miles Parks, “Biden’s Victory Cemented As States Reach Key Electoral College Deadline,” NPR Morning Edition, December 8, 2020 (5:00 AM ET).
Heard on Morning Edition

Parks reports:

Electoral College electors are scheduled to meet in states across the country on the first Monday after the second Wednesday in December (Dec. 14 this year) to cast their votes.

And if a state has finalized its results six days before then, according to the ECA, then those results qualify for “safe harbor” status — meaning Congress must treat them as the “conclusive” results, even if, for example, a state’s legislature sends in a competing set of results.

Every state except Wisconsin appears to have met the deadline, according to The Associated Press. Wisconsin’s 10 electoral votes are still expected to be cast for Biden on Monday; he won the state by just over 20,000 votes.

“If a state can conclude its process of appointing electors by that [safe harbor deadline] then Congress is bound by federal law to accept the slate of electors that is arrived upon by that date,” said Rebecca Green, the co-director of the Election Law program at William and Mary.

Both Green and Alexander, of Ohio Northern, said they expect a few “faithless electors” to vote on Dec. 14 for a different candidate than voters chose but nowhere near enough to affect the underlying result.

A majority of states have some sort of law that either removes, penalizes, or cancels the votes of such errant electors, and the Supreme Court upheld the constitutionality of such rules earlier this year.

2) Nick Corasaniti, Sydney Ember and Alan Feuer, “The Nation Reached ‘Safe Harbor.’ Here’s What That Means.
President Trump’s efforts to overturn the presidential election are nearing the end of the line,” New York Times, Dec. 8, 2020
(Updated Dec. 13, 2020).

Thew new York Times report states:

That’s because election results that have been certified by the states are now considered conclusive, and by law those states’ Electoral College votes must be counted by Congress. By late Monday, every state but Hawaii had certified its results, and Mr. Biden had secured more than the 270 electoral votes needed to become president.

The 1887 Electoral Vote Count Act provides, specifically, the following:

3 U.S. Code § 5

If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.

(June 25, 1948, ch. 644, 62 Stat. 673.)

What this means is that the seditionist Senators and Congressman, on January 6, 2021, will be violating a specific law enacted by Congress which has been in effect for 133 years. They have not challenged its constitutionality in Court.

They are outlaws, pure and simple, committing acts of sedition. While they are protected by Congressional immunity from being prosecuted for their votes or statements they make on the floor of their respective Houses, that immunity does not protect them from criminal liability for participation in Trump’s vast conspiracy to overthrow the election results and the Constitution, to the extent their actions were performed outside of Congress.

They are trying to overthrow our Constitution. They should be prosecuted, each and every one of them.

IN SHORT, WHAT IS GOING ON HERE

What is going on here, despite the complexities, is actually very simple. The states have informed Congress of their approved electoral slates, which, in accordance with the law and popular vote of each state, give the victory to Joe Biden. The 12th Amendment and the 1887 Electoral Vote Count Act determine the procedure to be followed. The Act provides a “safe harbor” deadline which, if met, protects the electoral slates from being questioned.

The seditionists plan to violate that law, without advancing any legal justification. All of the claims of fraud have been litigated and rejected by state and federal courts. The seditionists are saying these court decisions, adopted in accordance with state and federal constitutions and laws, are irrelevant, and need be given no effect.

Instead, they are saying, Congress has an overārching power to re-litigate issues of alleged fraud, unbound by any rules of procedure or evidence, without regards to the judiciary where these claims have been adjudicated, and can overturn the vote of the American people for President.

That makes Congress the Super-Branch of Government, the Branch which may declare who is King.

The argument is wholly without merit. The seditionist Senators and Congressmen who are participating in Trump’s conspiracy to overthrow the election and the Constitution, should be prosecuted for actions =that constitute conspiracy and sedition, and other crimes–committed outside of Congress.

The Trenchant Observer

About the Author

The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.

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