Reposted with permission of Robert Barnes.
- A simple summation. Was the President inaugurated on January 20, 2021, the Constitutionally elected official? The answer is no.
- First, the Constitution sets the rules for elections to the Presidency, our only national office. Two clauses govern: Article II and Amendment XII. Other provisions can impact the conduct of the elections: the First Amendment, the Fifth Amendment and the Fourteenth Amendment (though not the clause some are currently talking about).
- Article II establishes the Constitutional rules for Presidential election: “each state shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” Thus the rules set by the Legislature of each set the rules for the election of the President.
- Next up we have the process for how these votes translate into inauguration. Those electors shall meet in their respective states and “shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate.” The Constitution then provides for “the President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.” If no candidate have a majority, then the House chooses the President with “the votes shall be taken by States, the Representation from each state having one vote.” The 12th Amendment only slightly modified these provisions to avoid the problem of a Vice President conflicting with the President.
- The First Amendment protection of speech, assembly, press and petitioning can impact the conduct of the elections, much as the Fourth Amendment right to be secure in one’s person and papers, the Fifth Amendment right to liberty and property protection under the due process of law, and the Fourteenth Amendment’s application of those principles to the states. In order for any rule set by the legislature of the state to be set aside requires a finding that rule violates the Constitutional protections for the conduct of the election. This is what affords courts a role in the process, just as state legislatures can give their courts a role thorugh election contests. In 2020, the states set the rules for who could vote, how they could vote, and the manner in which their vote would be canvassed and counted. This is where the problems arise.
- A critical note: the question of whether the 2020 election was unconstitutional does not require evidentiary proof of “widespread fraud.” This was a myth propagated by the election’s propagandists and protectors. The law in election contests is the same, and conforms to the standards we demand of elections globally in order to recognize a government as “legitimate” and an election as “honest.” Were there most Constitutionally questionable ballots than the margin of victory in any particular state, and did that add up to more electoral votes than a majority? The answer in 2020 for the Presidency is a compelling yes, the number of Constitutionally questionable ballots exceeded the margin of victory in more states than were necessary for any candidate to have an unquestioned majority of electoral votes.
- First, they counted Constitutionally-questionable ballots from those not Constitutionally qualified to vote. This varied by state, because east state had different rules for who could vote in the Presidential election, and different defects related thereto. In Georgia, this included people too young to vote, movers from their residence of registration, people who voted in other states in the same election, felons not qualified to vote, and dead people. In Wisconsin, this included people identified as “indefinitely confined” who were not, in fact, indefinitely confined. In Arizona and Nevada, this included the same list of defective ballots as Georgia. In each state, just this category of Constitutionally questionable ballots from the Constitutionally unqualified exceeded the margin of victory, and the results in just these three states reversed the outcome of the electoral college vote.
- Second, they counted Constitutionally-questionable ballots that were not Constitutionally qualified to cast. This is the How part of the problem. The legislature of each state also set rules by how a ballot could be cast, including how the voter received the ballot, how the voter returned the ballot, and how the voter verified the honesty of the ballot and their qualification to vote. These rules often required a signature-verified timely request for a ballot and a signature-verified timely return of a ballot in states like Arizona, Michigan, Pennsylvania and Georgia. You can read the rules for each state here. Here again, ballots were distributed without strict chain of custody, mailed to those who didn’t even request a ballot, returned by all kinds of dubious means (drop-boxes, “friends”), and not verified by signature matches at either end of the prescribed process. The number of such Constitutionally questionable ballots far exceeded the margin of victory in more states than constituted the necessary majority of the electoral college. In each state, just this category of Constitutionally questionable ballots from the Constitutionally unqualified exceeded the margin of victory, and the results in just these three states reversed the outcome of the electoral college vote.
- Third, they counted Constitutionally questionable ballots that were not Constitutionally qualified due to the lack of Constitutionally qualified canvassing and counting. The method of receiving, reviewing, and then including a ballot in the official ballot count, as set by the rules of the legislature of the state, often include prophylactic principles and precepts to prevent illicit ballots from inclusion. This includes the participation of party-observers at each essential stage of the process, including the delivery of ballots (such as to the indefinitely confined in Wisconsin or review of the signature-verification on an absentee ballot request in Arizona or Georgia), the receipt of ballots (especially the identity verification of the voter, most commonly through pre-established rules for signature matching, during the canvassing process before the ballot is even removed from the ballot envelope), and the strict chain of custody of receipt of the ballot through to counting them in the presence of party observers. Each of the states in question ignored these provisions, violated the canvassing and counting rules, and by rule, made those ballots subject to such irregularity Constitutionally questionable ballots. States like Georgia and Arizona with digitally copied ballots that promised to print and public those ballots to the world, never did. Once again, just this category of Constitutionally questionable ballots from Constitutionally unqualified methods of ballot canvassing and counting exceeded the margin of victory in more states than the margin necessary for a majority of the electoral college. In each state, just this category of Constitutionally questionable ballots from the Constitutionally unqualified exceeded the margin of victory, and the results in just these three states reversed the outcome of the electoral college vote.
- The next question became remedy. This remains a mostly unresolved area of law, but prior historical and legal precedent suggested four potential sources of remedy: the state officials charged with administering an election; the courts; the President of the Senate; and the House of Representatives.
- State election officials often resolve such controversies, most famously in 2000, when the Supreme Court also afforded a role by it to decide such controversies. Historical precedent supported the Vice Presidential role as well. In 1796 and 1800, the President of the Senate, the Vice-President, decided elector disputes under the authority provided in Article II, as advised by Alexander Hamilton, a power the country kept in the same form in the 12th Amendment in 1804. Indeed, most assumed such power still vested in the Vice President in 1876 (which is why the House filibustered to prevent the Vice President from deciding the dueling late of electors from disputed states), and legal scholars cited it as an option in 2020.
- Finally, my preferred remedy, remained the most clear in the Constitution: in any disputed election, the House shall decide the Presidency by state delegation. This last solution seemed to me the most obvious, the best well supported in the plain text, and the most genius by the founding generation – let a political body, elected by the people, decide a dispute in the same election they were elected to, about elected officials in that same election, and do it by state delegation to protect our principles of federalism.
- Unfortunately, all the above abandoned their duties in 2020 – first, state officials ran and hid because of their own complicity in compromising the laws in the first place, often with secret deals with Democratic officials, in what Time magazine called the great “election fortification” of 2020, enabled by Democratic apparatchik and criminal money launderer lawyers; second, the courts ran and hid using their favorite trilogy of excuses – unripe in spring (to hear the suit before the election), laches in fall (to hear the suit after the election), and moot by winter (to hear the suit after the system already screwed you); third, the state legislatures found the same place to hide that the Supreme Court and Congress did – under their nearest desk.
- The red herring of patsy Dominion also served its purpose of deviating the public attention from these AWOL Constitutionally empowered state actors and lawless election concerns by having people chase rabbit holes and ghosts of Venezuelan software, German server farms, Iranian ballots, secret watermarks, Cuban informants, white hat Q-anon military backers, and ultimately, the entrapment of January 6th.
- But do not be deceived by either the crime or the patsy. The 2020 election was not a Constitutionally qualified election for the Presidency, and Joe Biden rightly deserves the moniker shared by his 1876 predecessor: His Fraudulency, the Second. A war flirting with nuclear disaster, an economy sliding toward deflationary depression, and a legal system fully weaponized for inquisitional purposes and partisan aims shows that fraudulent elections have consequences too.
- Never forget. Never forgive. Hold the line.
