Jim de Bree | Congressman’s Analysis Has a Crucial Flaw

Jim de Bree
Jim de Bree

I am deeply disappointed with Rep. Mike Garcia’s vote against certifying the Electoral College votes of Arizona and Pennsylvania. On Jan. 10 I wrote a letter to him that was subsequently published in The Signal. 

To his credit, Congressman Garcia responded to my letter, explaining the reasoning behind his vote. In part, he wrote: 

“During the certification process, I voted against the certification of two state’s electoral votes: Arizona and Pennsylvania. I did not arrive at this decision lightly. After close examination and consideration, I determined that these two states abdicated their constitutional mandate under Article I, Section 4, which determines that state legislatures are responsible for state election laws. Instead of adhering to this Constitutional statute, states, like the two states I objected to, violated the law when officials outside of the state legislature changed state election laws without the state legislature’s approval. This resulted in drastic alterations in the process of conducting an election and the erosion of faith in the electoral process. It was my determination that these shortcomings fell to Congress to address.”

Congressman Garcia must have been confused, because Article 1, Section 4 deals with the election of senators and representatives, not the presidential election, which is set forth in Article II, Section 1. 

I responded by asking Congressman Garcia to provide additional details and factual support for his allegations. At the time of this writing, I have yet to receive a response. 

Due to the limitations imposed by The Signal on column length, I will only discuss the Arizona situation. However, the Pennsylvania situation has a similar theme.

According to the Congressional Record for Jan. 6, 2021, the date on which Mr. Garcia cast his votes, Rep. Andy Biggs, a Republican from Arizona, explained that the courts interfered with the Arizona legislature’s prescribed procedures under Article II, Section 1 (as noted above, Mr. Garcia quoted the wrong provision in his response) to select Arizona’s electors. 

Unfortunately, Mr. Biggs failed to consider the implications of the 14th Amendment, which constrains the powers granted to state legislatures under Article II, Section 1. 

After the post-Civil War 14th Amendment was ratified, state legislatures could no longer use their powers to infringe on citizens’ rights, including suffrage.

In order to vote in the November election, Arizona originally required that voters register no later than Oct. 5. 

However, due to pandemic-induced logistical issues, two not-for-profit organizations contended that the deadline impaired the 14th Amendment voting rights of Arizona citizens. They brought suit against the Arizona Secretary of State in the U.S. District Court for the District of Arizona seeking to extend the deadline to Oct. 27. The court believed that voting rights were infringed upon due to the pandemic and issued an injunction on Oct. 5 extending the registration period through Oct. 23. 

In response, the Republican National Committee and the National Republican Senatorial Committee intervened by filing an appeal to the U.S. Court of Appeals for the Ninth Circuit. 

On Oct. 13, the Ninth Circuit Court of Appeals ruled that because the voters, rather than the not-for profit organizations, were the party whose rights were infringed upon, the not-for-profit organizations lacked the requisite standing to bring the lawsuit. 

Consequently, it overturned the District Court decision on a technicality without considering the underlying issue of suffrage infringement. Citing Supreme Court precedent, the Ninth Circuit allowed voters who registered before Oct. 15 to vote.

In accordance with Article II, Section 1, on Nov. 30, the Arizona State Legislature certified the election results and transmitted the ballots to the president of the Senate to be counted on Jan. 6. 

At no point during this process were any laws violated, nor were any powers usurped from the Arizona legislature. Instead, the legislature’s prescribed procedures were legally challenged based on 14th Amendment concerns.

I teach tax research and ethics in the Cal State Northridge masters of taxation program. I instruct my students to consider all legal authorities, whether they are favorable or contrary to the taxpayer’s desired result. Part of the process is determining whether the favorable authorities truly apply and whether unfavorable cases can be differentiated. 

When a court case is decided based upon a technicality, rather than a rule of law, it generally cannot be used as part of the analysis.

A practitioner who disregards unfavorable authority does so at his own peril. The American Institute of Certified Public Accountants recently reported that one of the leading causes of malpractice claims against tax practitioners is failing to consider the implications of contrary authorities when conducting research. 

Those practitioners are typically responsible for monetary damages.

Although Congressman Garcia claims to have closely examined and considered the issue, he apparently failed to consider the implications of legal authority contrary to his position. Unlike tax practitioners, he won’t face monetary settlements. 

Instead, we all will bear the cost of a loss of confidence in our democracy. 

Jim de Bree is a Valencia resident.

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