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 do solemnly swear (or affirm) that I will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that I will discharge the duties of my office with fidelity."  

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:

  •   Joining colleagues in calling on Gov. Tom Wolf to hold a Special Session on the 2020 General Election. Please click here to read our request, which he subsequently refused.
  •   Voting for House Bill 2626, which called for various changes to the mail-in ballot process. This legislation passed the House but was never voted by the Senate and was going to be vetoed by Gov. Wolf.
  •   Voting for House Resolution 1100, which called for a post-election, risk-limited audit of all 67 counties by the Legislative Budget and Finance Committee. That committee rejected this request 2-1 by a partisan vote.
  •   Supporting a compressive report on legislative, executive, and judicial actions on elections during the 2019-2020 Session by the House State Government Committee. That report can be viewed here.
  •   Requesting the Office of Attorney General appoint a special prosecutor to review discrepancies during the 2020 General Election. Please click here to read that letter.
  •   Requesting the Office of Inspector General review the Pennsylvania Department of State’s operation of the 2020 General Election. Please click here to read that letter.
  •   “Friend of the Court”) brief filed by House leadership concerning our election laws. Click here to read the brief.

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

Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified.  

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.

Members of the General Assembly shall be chosen at the general election every second year. Their term of service shall begin on the first day of December next after their election. Whenever a vacancy shall occur in either House, the presiding officer thereof shall issue a writ of election to fill such vacancy for the remainder of the term.  

Article II, Section 4 of the PA Constitution does three things:
  1.    Sets the General Assembly as a continuing body during its term. This year, that term will be from Dec. 1, 2020, to Nov. 30, 2022.
  2.   Requires the House to meet at noon on the first Tuesday of January. For the coming term, this will be Tuesday, Jan. 5, 2021.
  3.   Special Sessions can be called while the General Assembly is in session by the governor through his own initiative or by petition of a majority of members of each chamber.

There are two mechanisms for a Special Session to be called:
  1.   By the governor.
  2.   By a majority of members elected to each House petitions the governor. This also provides a “shall” or mandate on the governor.

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:

§ 4. Sessions.

  The General Assembly shall be a continuing body during the term for which its Representatives are elected. It shall meet at 12 o'clock noon on the first Tuesday of January each year. Special sessions shall be called by the Governor on petition of a majority of the members elected to each House or may be called by the Governor whenever in his opinion the public interest requires.  

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.

Members of the General Assembly; Certificates of Election; Returns.--The Secretary of the Commonwealth shall issue certificates of election to the persons elected members of the Senate and House of Representatives of the Commonwealth, and between the hours of twelve noon and one P. M. on the first Tuesday in January of each odd-numbered year, present before the Senate and the House of Representatives the several returns of the elections of members of the respective houses: Provided, however, That if the General Assembly shall be convened in extraordinary session during the month of December next following their election, the said returns shall be presented as aforesaid, on the first day of said extraordinary session. In case of a special election occurring during a session of the General Assembly, he shall present the returns thereof to the proper house as soon as received and tabulated by him.  

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

  The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.

Article II, § 1

  Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

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.

  The legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives.

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.

  Except as otherwise provided by law, the persons receiving the highest number of votes for any office at any election shall be declared elected to such office, up to the number required by law to be elected thereto.
§ 1501. Election of Presidential Electors.

  At the general election to be held in the year 1940, and every fourth year thereafter, there shall be elected by the qualified electors of the Commonwealth, persons to be known as electors of President and Vice-President of the United States, and referred to in this act as presidential electors, equal in number to the whole number of senators and representatives to which this State may be entitled in the Congress of the United States.

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.

  The trial and determination of contested elections of electors of President and Vice-President, members of the GeneralAssembly, and of all public officers, whether State, judicial,municipal or local, and contests involving questions submittedto the electors at any election shall be by the courts of law, or by one or more of the law judges thereof. The General Assembly shall, by general law, designate the courts and judges by whom the several classes of election contests shall be tried,and regulate the manner of trial and all matters incidentthereto; but no such law assigning jurisdiction, or regulatingits exercise, shall apply to any contest arising out of anelection held before its passage.

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)

  “The validity of a state law providing for the appointment of electors of President and Vice President having been drawn in question before the highest tribunal of a state as repugnant to the laws and Constitution of the United States, and that court having decided in favor of its validity, this Court has jurisdiction to review the judgment under Rev. Stat. § 709. Under the second clause of Article II of the Constitution, the legislatures of the several states have exclusive power to direct the manner in which the electors of President and Vice President shall be appointed.

Such appointent may be made by the legislatures directly, or by popular vote in districts, or by general ticket, as may be provided by the legislature.”

Bush v. Gore, 531 U.S. 98 (2000)

  “If we are to respect the legislature’s Article II powers, therefore, we must ensure that postelection state-court actions do not frustrate the legislative desire to attain the “safe harbor” provided by §5.”  

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.