In a Facebook post on January 3rd, Congressman Bill Posey (R-Rockledge) who has pledged to object to certifying the election results, alleged that Georgia and Pennsylvania violated the constitution in their elections.
The basis of his argument is his 2nd statement that “The constitution clearly says state legislatures shall make election laws.”
This is what the constitution says.
In Article I Section 4, the Constitution says:
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.
Article II, Section 1, Clause 4, pertains to Congress’ power to set the time
of choosing of presidential electors:
“The Congress may determine the Time of chusing the Electors, and the Day on
which they shall give their Votes; which Day shall be the same throughout the
While Congress has the explicit authority under the Elections Clause to
regulate the times, places, and manner of congressional elections, with
respect to presidential elections, Article II, Section 1, Clause 4 simply
provides that the “Congress may determine the Time of chusing the
Electors, and the Day on which they shall give their Votes; which Day shall
be the same throughout the United States.”
At the time of the Constitution’s adoption in 1787, general elections for President were not
contemplated. The Constitution provides, instead, for the election of the
President by electors appointed by each state. The state legislatures are
empowered to direct the manner in which the electors shall be
appointed, and all 50 states and the District of Columbia, in turn,
currently provide that presidential electors be elected by popular vote.
So in a very general and broad sense, Congressman Posey is correct. State legislatures make election laws. In fact, they make all the laws for their state. That’s the purpose of their existence. Therein lies the internal confliction of Posey’s assertion. Why? Because most if not all state legislatures have passed laws that enable the governor durning states of emergency to effectively make, change, or suspend state laws in the form of executive orders.
That is exactly what has happened not just in Georgia or Pennsylvania, but also in Florida. Yes, what Posey is calling unconstitutional is exactly what Governor Ron Desantis himself implemented in the exact same election.
Because of the Covid-19 pandemic, Desantis declared a state of emergency for Florida, allowing him the authority to take action to protect the state and its citizens. With that declaration comes a tremendous amount of power given to him by the state legislature and the Florida Constitution.
On June 17, 2020, Desantis issued EXECUTIVE ORDER NUMBER 20-149 (Emergency Management-COVID-19-Primary and General Elections). This executive order which was written exclusively for our elections did exactly what Posey is complaining about in Desantis’ literal own words.
In fact, the very first section of his order changing the law, is very similar to what the state of Georgia did with their vote-by-mail ballots that Posey is protesting. (Not protesting in Florida, just other states)
The entire oder can be read here.
Posey answered one commenters question this way. Ironically, if you change GA to FL in his response, it is the same statement. However, neither is a violation of the constitution.
Because Desantis is the one who changed these laws in Florida, is Posey saying with the first sentence in his original post that Desantis is an enemy of the constitution he has sworn to defend? What else is important to note is not just what Congressman Posey said, but what he didn’t say. The best example is the choice to not answer this question by a constituent.
It is apparent that Congressman Posey truly believes these results are unconstitutional, and he has pledged to object to the certification of the election results tomorrow. But if he does believe that, and he believes it based off of the comments he’s made, then he has proclaimed his own election, and everyone else’s in Florida as well, unconstitutional. “Regardless of of who won or lost, and whether you, I or anyone else likes it or not.” (His words, not mine)