In our system of divided government, the Constitution vests the primary authority in the House of Representatives. Only the House may originate tax bills; only the House always consists entirely of members elected by their local constituents; and only the House selects the next president in times of crisis, as we have now.
We are not a democracy, and never have been. We are a constitutional republic, and the Founders were strongly opposed to democracy and the many severe problems it can create.
As a republic, we elect representatives who then pass laws or, in this case, elect the president. The Twelfth Amendment to the Constitution, based on its original text, explains that the House has the authority and duty to elect the president when no candidate has a majority of the electoral votes.
“But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.”
Enough congressmen have objected for establishing a quorum in the House, where each state delegation there has one vote. Nancy Pelosi cannot stop this process under the Constitution, and the House members should simply convene and elect the next president, with one vote per state.
The incoming House has 27 state delegations which are majority GOP and 20 which are majority Democrat. Three state delegations are tied in party representation: Michigan, Minnesota, and Pennsylvania.
The Twelfth Amendment does not say who counts the Electoral College votes, and the House is the entity having the most representative authority to do so while rejecting the Biden slates tainted by fraud and irregular procedures. Federal courts have already indicated that they will not intervene.
The suggestion by a few Republican House members that they should stand down and allow certification of a fraudulent election would be an abdication of their duty under the Constitution. It would be wrong to embrace and allow wrongdoing by a handful of state officials, who violated the election laws enacted by their legislatures.
In Georgia, Pennsylvania, and elsewhere, there was no signature verification of millions of mailed-in ballots as required by laws there. If the laws had been applied as written, then President Trump won those states and enough elsewhere to prevail in the Electoral College.
In 1825 the House did not select the presidential candidate who won the most popular votes, who was Andrew Jackson. Instead, it chose John Quincy Adams as the House was authorized to do by the Twelfth Amendment, and that action by the House helped unify the country then, as it would now.
The Founders intended the House of Representatives to be more powerful than the presidency or the courts. As the body most representative of the American people, which was entirely elected just two months ago, the House is in the best position to decide who should become president now.
It was the House which selected Thomas Jefferson as president on the 37th ballot in 1801. Virtually no one denies the wisdom of that choice, as the runner-up Aaron Burr subsequently killed Founding Father Alexander Hamilton in a duel merely three years later.
Democrats can talk all they want in the House about a cowardly, secret recording of Trump’s conversation with a Georgia official who has failed to allow independent signature verification of vast numbers of mailed-in ballots there. Democrats can rant all they like in the House how counting every fraudulent vote should somehow decide who our next president is.
The Electoral Count Act of 1887, on which the Democrats rely, cannot take power away from the House as given to it by the Constitution. Likewise, House Republicans should fulfill their constitutional duty to ensure that the next president is not chosen by a few state officials who flagrantly violated election laws passed by their legislatures.
The Supreme Court has never upheld or even addressed the constitutional defects in the Electoral Count Act, and this reinforces the need for the House of Representatives to step up to the plate now and start swinging its powerful bat. The 1825 precedent of the House selecting the president should guide us through the turmoil today.
The House, voting by state, should make its own determination that the Electoral Count Act is unconstitutional in diluting the authority of the House. The Constitution is clear: the House selects the next president when there is election failure.
In our constitutional republic, our elected representatives can and should vote to protect the integrity of the selection of our next president. That will establish a necessary precedent that fraud never be allowed to steal a presidential election.
John and Andy Schlafly are sons of Phyllis Schlafly (1924-2016) and lead the continuing Phyllis Schlafly Eagles organizations with writing and policy work.
