Representative Sheila Jackson Lee's objections to the 2016 Electoral College votes

Congressional Record, Pages E31-E33, January 6, 2017 [GPO source]:

HON. SHEILA JACKSON LEE OF TEXAS IN THE HOUSE OF REPRESENTATIVES

Friday, January 6, 2017

Ms. JACKSON LEE. Mr. Speaker, as a senior member of the House Committees on the Judiciary and Homeland Security Committee; Ranking Member of the Judiciary Subcommittee on Crime, Terrorism, Homeland Security, and Investigations, and the Congressional Voting Rights Caucus, I rise today to offer thoughts and reflections on the congressional responsibility to bear witness to the counting of electoral votes to determine formally the persons elected President and Vice President of the United States and on the campaign and election that brought us to this day.

Historians will surely record that the 2016 presidential campaign was one for the ages.

The two leading protagonists could not have been more dissimilar.

The Democratic candidate, Hillary Clinton of New York, was widely considered the most qualified person ever nominated for the office, having served as Secretary of State; elected by landslide margins to two terms as U.S. Senator from New York, the nation's only First Lady to win high elective office in her own right; valedictorian of her class at Wellesley University, a graduate of Yale Law School, and the first woman ever to win the presidential nomination of one of the nation's two major political parties.

Republican Donald Trump of New York, the other candidate, was sui generis as well, since he is the first person to gain an Electoral College majority with no experience whatsoever in elective or appointed governmental office or public service but possessing a remarkable talent for attracting media attention.

The 2016 was notable also for a number of other unprecedented occurrences.

For example, it was the first time in history that a Director of the Federal Bureau of Investigation had ever injected himself and his agency, unintentionally or not, in a presidential campaign when FBI Director James Comey held a July 5, 2016 news conference, during which he announced that the FBI had completed its investigation regarding the email server of former Secretary of State Hillary Clinton and had concluded that no violation of law had been committed but offered unfavorable personal opinions ex cathedra regarding Secretary Clinton's conduct.

Compounding the damage inflicted on Secretary Clinton's campaign by his gratuitous commentary, FBI Director Comey exacerbated the damage already done when, a mere eleven days before Election Day, he sent a vaguely worded letter to partisan Congressional Republican opponents of Secretary Clinton allowing them to leak the letter to the media and claim falsely that the FBI had reopened the investigation for the sole purpose of inflicting electoral damage on Secretary Clinton.

These actions were taken in contravention of long-standing Department of Justice policy, practice, and custom enjoining Justice Department officials and employees from engaging any conduct or taking any legal action that could impact the outcome of an election to be held within the ensuing 60 days.

The 2016 presidential election was historic in another respect as well; it is the first American presidential election that the Intelligence Community has confirmed was the subject of cyberattacks and other subversive activities of entities allied with the Government of Russia that were undertaken for the express purpose of influencing the outcome of the 2016 presidential election to secure the election of its preferred candidate, Donald Trump.

It is also worth noting that the 2016 presidential campaign was the first in history in which one of the two leading candidates, Donald Trump, openly invited a hostile foreign power to launch cyberattacks against his political opponent.

In at least one respect, however, the 2016 presidential campaign was not unprecedented.

It was the fifth time in history, and the second in the last 16 years, that the candidate winning an Electoral College majority lost the popular vote.

But what is unusual is the historic margin of the popular vote defeat produced by the 2016 campaign that saw Hillary Clinton defeat Donald Trump by an astounding 2.86 million votes: 65,844,610 votes to 62,979,636, nearly six times more than Vice-President Al Gore's popular vote win in 2000, the next highest victory margin.

Indeed, Hillary Clinton received more votes for president than any person in history not named Barack Obama, which means that the two greatest vote getters in American political history are an African American male and white female, which in itself is a testament to how far America has travelled on the path to equality and opportunity for all in the past 240 years.

While it is true that a switch of less than 80,000 votes in just three states--Pennsylvania, Michigan, and Wisconsin--would have secured an Electoral College majority for Hillary Clinton, that fact is of little consolation and practical consequence to the situation and task now before us, which is to count the electoral votes cast for President and Vice-President of the United States and announce the results to the country and the world.

It is, as I noted at the outset, a duty imposed on Members of the House and the Senate by the Constitution and laws of the United States.

But because we are all called upon to bear witness to the counting of electoral votes does not mean our role is to be passive observers.

On the contrary, the Constitution and the law, specifically Section 15 of the Electoral College Act, 3 U.S.C. § 1 et seq., vests in Representatives and Senators the power and responsibility of objecting to the counting of any vote cast by an elector if in their judgment the vote was not ``regularly given'' or the person casting the vote was not ``lawfully certified'' as an elector.

The Constitution devolves this solemn duty upon the people's representatives, the Congress, because the linchpin of representative democracy is public confidence in the political system, regime, and community.

That confidence in turn rests upon the extent to which the public has faith that the system employed to select its leaders accurately reflects its preferences.

At bottom, this means that all citizens casting a vote have a fundamental right and reasonable expectation that their votes count and are counted.

This concern is particularly salient when it comes to today's counting of the electoral votes occurring in the aftermath of the unprecedented interference by a hostile foreign power to secure victory for its preferred candidate.

And the salience is heightened by the fact that the November 8, 2016 election is the first presidential election held since the Supreme Court issued the notorious decision in Shelby County v. Holder, which neutered the preclearance provisions of the Voting Rights Act and adversely affected the ability of hundreds of thousands of persons to cast a ballot and have their vote counted.

For these reasons, I owe it to my constituents and to the American people to consider each electoral vote certificate as it is presented and accept those that appear to be meritorious but to oppose those which in my judgment do not appear to satisfy the statutory requirement that the votes reflected on the lists were ``regularly given'' by ``lawfully certified'' electors.

I am particularly skeptical that this legal standard is met where there is evidence to support the following conclusions:

1. There is a failure to provide ``distinct lists of votes'' for the President and Vice President as required by U.S. Constitution, Article II, Section 1 and Amendment XII; and by 3 U.S.C. § 9;

2. There is a failure of one or more elector to reside in the district from which elected as required under state law;

3. There appears to be a violation of state statutes prohibiting electors from holding multiple governmental offices of trust, honor, or profit;

4. There is compelling evidence that the illegal activities engaged in by individuals and entities allied with the Government of Russia that were undertaken for the purpose of benefitting the candidacy of Donald J. Trump deterred and dissuaded thousands of voters from exercising their franchise; or

5. There is compelling evidence that activities engaged in by state officials violated the Voting Rights Act of 1965 and disenfranchised thousands of voters and resulted in the unlawful certification of electors.

Finally, Mr. Speaker, let me say for the record that where, as is the case this year, the results in the Electoral College and of the popular vote diverge by the largest and most astounding margin in American history, it is particularly fitting, appropriate, and necessary to examine the electoral vote certificate presented for acceptance as carefully and fairly as possible and for as long as time permits.

The fate of our democracy is at stake. I now submit formal letters to the Vice President regarding objection to certification of Electors in certain states:

CONGRESS OF THE UNITED STATES, HOUSE OF REPRESENTATIVES, Washington, DC, January 6, 2017.

Basis of Objection: Failure of one or more elector to reside in district from which elected.

Hon. JOSEPH R. BIDEN, Vice President of the United States and President of the Senate, Washington, DC.

DEAR VICE PRESIDENT BIDEN: We object to the 15 votes from the State of North Carolina for Donald J. Trump for President and Mike Pence for Vice President. Notwithstanding the certification by the Governor of the State of North Carolina, it is the opinion of the undersigned that these 15 votes were not regularly given because at least five electors were not ``lawfully certified'' and their votes were not ``regularly given'' since one or more electors does not reside in the district for which he or she was elected as required by state law.

Additionally, several activities engaged in by state officials in violation of the Voting Rights Act of 1965 disenfranchised thousands of North Carolina voters and resulted in the unlawful certification of electors. Accordingly, no electoral vote of the State of North Carolina should be counted for Donald J. Trump for President or for Mike Pence for Vice President.

Respectfully, SHEILA JACKSON LEE,

U.S. Representative, State of Texas.

CONGRESS OF THE UNITED STATES, HOUSE OF REPRESENTATIVES, Washington, DC, January 6, 2017.

Basis of Objection: Violation of state statutes prohibiting dual-office holding.

Hon. JOSEPH R. BIDEN, Vice President of the United States and President of the Senate, Washington, DC.

DEAR VICE PRESIDENT BIDEN: We object to the 20 votes from the State of Pennsylvania for Donald J. Trump for President and Mike Pence for Vice President. Notwithstanding the certification by the Governor of the State of Pennsylvania, it is the opinion of the undersigned that these 20 votes were not regularly given because they were cast by electors not lawfully certified since they are in violation of state law prohibiting dual-office holding.

Additionally, it appears that illegal activities engaged in by individuals and entities allied with the Government of Russia that were undertaken for the purpose to benefitting the candidacy of Donald J. Trump deterred and dissuaded thousands of voters from exercising their franchise and resulted in votes not regularly given by electors not lawfully certified. Accordingly, no electoral vote of the State of Pennsylvania should be counted for Donald J. Trump for President or for Mike Pence for Vice President.

Respectfully, SHEILA JACKSON LEE,

U.S. Representative, State of Texas.

CONGRESS OF THE UNITED STATES, HOUSE OF REPRESENTATIVES, Washington, DC, January 6, 2017.

Basis of Objection: Failure to provide ``distinct lists of votes'' for the President and Vice President.

Hon. JOSEPH R. BIDEN, Vice President of the United States and President of the Senate, Washington, DC.

DEAR VICE PRESIDENT BIDEN: We object to the 10 votes from the State of Wisconsin for Donald J. Trump for President and Mike Pence for Vice President. Notwithstanding the certification by the Governor of the State of Wisconsin, it is the opinion of the undersigned that these 10 votes were not regularly given because they fail to comply with 3 U.S.C. § 9, which requires that ``electors shall make and sign six certificates of all the votes given by them, each of which certificates shall contain two distinct lists, one of the votes for President and the other of the votes for Vice President[.]''

Additionally, it appears that illegal activities engaged in by individuals and entities allied with the Government of Russia that were undertaken for the purpose to benefitting the candidacy of Donald J. Trump deterred and dissuaded thousands of voters from exercising their franchise and resulted in votes not regularly given by electors not lawfully certified. Accordingly, no electoral vote of the State of Wisconsin should be counted for Donald J. Trump for President or for Mike Pence for Vice President.

Respectfully, SHEILA JACKSON LEE,

U.S. Representative, State of Texas.

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