Jim de Bree | A Vote Based on Flawed Reasoning

Letters to the Editor
Letters to the Editor

Stephen Maseda (letters, March 30) recently took exception to my comments about Rep. Mike Garcia’s vote against certifying the Arizona Electoral College votes on Jan. 6, 2021. When Mr. Maseda asserted there was a reasonable basis for Garcia’s vote, he essentially restated what was read into the Federal Register on Jan. 6, 2021, by Arizona Rep. Andy Biggs.  

I have previously written several columns explaining my objections to the rationale set forth by Mssrs. Biggs and Garcia, so I felt no need to revisit those details in my letter to which Mr. Maseda responded.  

When attempting to justify the legal basis for taking a position, one must consider all of the relevant authorities. The first step is to identify favorable authorities and explain why they validate the position. The second step is to establish why the unfavorable authorities do not apply. In their analysis, Biggs, Garcia, and now Mr. Maseda did a good job of executing the first step, but ignored the second step.  

They properly explained the powers granted to state legislatures under Article II, Section 1 to select the states’ members of the Electoral College. However, as I explained in previous columns, under the 14th Amendment, a state legislature cannot do so in a manner that infringes on the voting rights of citizens residing in the state. 

Furthermore, in the event that circumstances beyond a state’s control impair citizens’ voting rights, relevant case law under the 14th Amendment sets the precedent that the state must make reasonable efforts to ameliorate those circumstances. 

Two organizations engaged in Arizona voter registration efforts, Mi Familia Vota and Arizona Coalition for Change, brought suit in Federal District Court asserting that Arizona’s response to the pandemic was insufficient to constitute such reasonable efforts and sought an extension of the voter registration deadline. Following well-established case law, the District Court issued an injunction, requiring the state to continue voter registration through an extended deadline date. The Arizona attorney general appealed the decision to the 9th Circuit Court of Appeals, which vacated the lower court’s order without formally overturning the District Court’s decision.  

Although Mr. Maseda correctly stated that the extended registration period allowed over 35,000 additional people to register to vote and it is likely that a majority of them voted for Joe Biden, his lamentation misses the point.  

The voting registration organizations provided ample evidence that voter registration was hindered by pandemic lockdowns and they were within their rights to challenge the situation based on 14th Amendment case law. They statistically demonstrated to the District Court’s satisfaction that a substantial number of citizens (potentially more than 35,000) would have registered before the registration deadline but for the lockdowns. The District Court followed established case law precedent and cannot be construed to have engaged in judicial activism. Although the Republicans were unhappy with the result, the system worked precisely as intended by the Constitution under exceptionally strained circumstances.  

But let’s set aside the legal arguments and consider the context of the vote. A few hours after a mob tried to disrupt the congressional acceptance of the Electoral College votes, a majority of House Republicans, including Garcia, voted to reject the electoral votes from Arizona in a clearly partisan act. Three days earlier, they took an oath of office to support and defend the Constitution — all of it, not just the parts that are politically favorable. 

Compare this with Richard Nixon’s response in 1960 after 30,000 dead people in Cook County voted for John F. Kennedy. Many Republicans sought to challenge those election results. However, Nixon (a World War II veteran himself), told them to stop. He did not want to precipitate a constitutional crisis and make America appear weak to its enemies. That was true patriotism extending beyond his military service. 

Conversely, on Jan. 6 the Republicans did not share Nixon’s concerns about creating a constitutional crisis. By putting partisanship over citizenship, they tore at the fabric of our republic’s democratic election process.  

Jim de Bree


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