Some 2020 changes to election law in the battleground states were prima facie violations of the Constitution. For example, when the jurists on Pennsylvania’s Supreme Court took it upon themselves to change PA’s election laws, they violated the Elections Clause , which stipulates that in the states, only legislatures are empowered to make election laws. Yet, those jurists aren’t being made to account for their unlawful usurpations, even though they struck at the very heart of the American system — our elections, which give us our democracy.
It’s heartening to know that members of PA’s legislature can occasionally summon up the will and grit to impeach jurists, but they don’t seem to have done so in these recent cases (see this and this). But the PA legislature is also guilty. Like their Supreme Court, the PA legislature has also violated the law by the way they changed their election laws, as did other battleground states.
It’s necessary to stress that many of the actions taken by public officials in the 2020 presidential elections ran afoul of the law. It’s irrelevant that the infractions were committed in full view of the public and by groups, such as legislatures and courts; they were still breaches of the law. It’s much more egregious when public officials break the law than when individuals do, as the People have put their trust in public officials and have given them extraordinary power.
The 2020 presidential election is one of failure. The safeguards meant to ensure the integrity of our elections broke down on every level of government, local, state, and federal, and involved every branch of government, legislative, executive, and judicial. The issue here is not only that the changes to election law to counter the Wuhan virus opened the gates to even more election fraud; it’s that the changes violated the law.
One would be hard pressed to assess which of the many government failures in the 2020 presidential election was most damaging to the republic. But in the end, the massive government failures and lawlessness of 2020 could be fixed only by a lone individual and only on the final day of the election. On Jan. 6 at the joint session of Congress that counts the votes of the Electoral College, Mike Pence as President of the Senate could have put a patina of legitimacy on an election shot through with illegitimacy and fraud. But how could he have done that?
Some argue that a V.P. cannot unilaterally and summarily reject disputed states’ electoral votes. In “All Pence Can Do Is Count,” a Jan. 3 commentary in The Wall Street Journal, Alan Charles Raul and Richard Bernstein wrote: “Neither the vice president nor Congress has the power to reject electoral votes.” These analysts were saying that the joint session of Congress to count the Electoral College votes is just a formality, and the only action that can be taken in the session is to simply “rubberstamp” the states’ electors. If members feel certain that election laws were unconstitutionally changed or that election fraud was determinative in certain states, that’s a pity, for they are compelled to “ratify” those tainted ballots.
In “Alexander Macris on the 2020 Battleground States” at LewRockwell, this writer showed why the above position is wrong. The article contends that the V.P. does have the power to reject disputed states’ electoral certificates. If the reasoning is correct, then some might say that the Constitution has a hole in it that needs to be filled. In fact, the article cites a 19th Century senator of that opinion. But perhaps the “hole” was deliberate; perhaps the drafters of the 12th Amendment foresaw unconstitutional “elections” and created an escape hatch for some future V.P. to save the republic.
This escape hatch, however, involves defying the Constitution. Democrats would surely raise holy hell about Pence rejecting disputed states’ certificates, and moan about traducing the supreme law of the land. But why should Pence have obeyed the Constitution when so many other public officials hadn’t? Also, what would have happened to Pence had he rejected tainted certificates? President Trump wasn’t about to sic federal marshals on him. Maybe Chuck and Nancy would have gotten apoplectic, but so what.
If a V.P. were to “go rogue” and reject tainted certificates from “rogue states,” with the disputed battleground states’ votes not being counted and with only the states whose certificates had been accepted determining the winner, the nation’s domestic tranquility, such as it is, might end, at least in Blue States and Democrat cities.
With only two weeks from Jan. 6 to Inauguration Day, there wouldn’t be enough time to conduct do-over elections in the disputed states, as the Texas case had urged in December. But because the illegalities in those states were just the most obvious problems, what Mike Pence should have done is to reject the certificates of all the states. And he should have executed the rejection with panache, by ceremoniously tearing up the certificates from the great states of Georgia and Pennsylvania, much like Nancy Pelosi tore up her copy of Pres. Trump’s last State of the Union speech. Pence should then have fed all the remaining certificates into a paper shredder, an appropriate end to an election irremediably corrupt.
Had Pence rejected all certificates, we’d have had a tie which would have thrown the presidential election into the House of Representatives. And that’s where the 2020 presidential election with all its irregularities and improbabilities belonged. The voters of Pennsylvania, Georgia, and all the other rogue states would still be able to weigh in, but with their U.S. representatives rather than electors.
Had Pence rejected all certificates, singlehandedly throwing the election into the House, it would have been a fitting rebuke of the government failure that made the 2020 elections a mockery of democracy. Mike Pence was a great V.P.; this kid still admires him. And it’s not “fair” that one man be made to correct all the failures of everyone else. But in not taking the bold unprecedented action that was clearly called for, Mike also failed. And that’s a tragedy, because such an act might have at long last provided the impetus for real systemic reform in American election law. Instead, with H.R.1 – For the People Act of 2021, the most hideous horrendous anti-democratic legislation in over 150 years, Democrats seek to codify the battleground state outrages and impose them on the entire nation. It’s as though the Dems were trying to foment another civil war.
There are many authors of the failure that has given us the most un-American government we’ve ever experienced. But perhaps the biggest failure of the 2020 election is that the People of this great nation continue to tolerate the failures of their government.