How Electors to the Electoral College are Selected in Georgia and On calling a special session of the legislature |
The United States Constitution grants to the states the right and
responsibility to select electors to the Electoral College, as each
state directs through laws passed by the respective state legislatures.
The legislatures of the states are set up differently by the respective
state constitutions. Some are full-time. Most are part-time as in
Georgia. At least one is unicameral but most are bicameral, as is
Georgia's. The powers of the presiding officers of the chambers are
different in each state. Also, state constitutional provisions and state
laws regarding special sessions are different in each state.[1]
I have included the above because many people from other states and from
Georgia (I have received thousands of emails and numerous telephone
calls from out-of-state) as well as cable news channel hosts who are not
familiar with the Georgia Constitution nor Georgia law, who make false
assumptions about what the Georgia constitution and Georgia law provide
regarding special sessions and election law, in general.
After the November 5, 2020 election, and through the end of December,
2020, President Trump, news commentators and many people called for the
Georgia legislature to take some kind of retroactive action regarding
the outcome of the 2020 General Election.
First of all, any retroactive action on the part of the legislature
would be illegal, as explained in a paragraph further down. In the
second place, no legislative action can be taken by the General Assembly
while not in session. The regular session of the Georgia legislature
(the Georgia General Assembly) convenes the second Monday in January of
every year and adjourns Sine Die (with no set date to reconvene) after
forty legislative days, which are normally completed between the third
week of March and the second week of April. While not in session,
Committees can meet and conduct hearings but no official action can be
taken. Committees of both the Georgia House and the Georgia Senate held
hearings regarding the presidential election in December, 2020, but they
could take no official actions. There were news reports in December that
a Georgia state senate committee met and filed a report to the clerk of
the senate. Nevertheless, no action can be taken on that report while
the legislature is not in session.
During December, 2020, there were constant demands, including from
President Trump, that a special session of the General Assembly be
called. The Georgia Constitution provides a mechanism for the General
Assembly to call itself into special session. However, it requires the
call to have the signatures of three-fifths of the membership of each
chamber. Three-fifths of the one hundred-eighty member of the Georgia
House is one hundred-eight. There are only one hundred-five Republican
members in the House. The numbers are not there.
The General Assembly can be called to special session by the Governor.
However, both Governor Kemp and Lieutenant Governor Duncan stated
correctly that election laws and/or any other laws cannot be changed to
retroactively affect an event that has already occurred. The Georgia
General Assembly passed legislation in the 1960s that provides that the
winner of the popular vote in the Georgia presidential election will
receive all of Georgia electoral votes. That law, as with any other, can
be changed to affect actions that will occur after enactment, but not
actions that happened before its enactment. There is nothing that
Governor Kemp nor the General Assembly - our state legislature - can do
to change the outcome of the 2020 presidential election. It would be
illegal for the Georgia legislature to direct the electors to cast their
Electoral College votes in any other way than to whomever was the winner
of the popular vote in the presidential election.
[1]
Regarding Article ll, Section I, of the United States
Constitution, the language therein prescribes that states will
appoint the number of Electors to which they are entitled (to
the Electoral College) in a manner that the state legislatures
may direct.
Each state may, through statute passed and enacted by its
legislature, establish the manner in which electors are chosen.
Current Georgia law, which was enacted in the 1960s prescribes
that the winner of the presidential election in Georgia shall
receive all of its electors. Some states appoint the Electors by
congressional districts. Regardless, the process for Georgia is
established in Code, and unless it is ever changed, the winner
of the presidential election in Georgia will receive all its
Electoral votes. That cannot be changed retroactively after an
election to affect an election that has already been held.
It should be noted here, that with the exception of Article II
as detailed above regarding the Electoral College, the United
States constitution does not prescribe a method by which
states assign duties or enact legislation. State legislatures
pre-dated the United States constitution, and delegates to the
constitutional convention were intent that the federal
government would not have the authority to usurp state powers,
even to the point of including in the U.S. constitution the
Tenth Amendment by establishing that "the federal government has
only those powers delegated to it by the Constitution, and that
all other powers not forbidden to the states by the Constitution
are reserved to each state." The delegates to the constitutional
convention were, in fact, appointed by the state legislatures. - Don Parsons
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