By Brian Cates
For the past five weeks, citizens of the United States have been getting a civics lesson on how federal elections are supposed to be held. Deviation from what the Constitution clearly establishes has reached a tipping point because of the way certain states handled the election.
The Constitution says there is a designated Election Day with very real deadlines for voting. There is no reference in the Constitution to “Election Week” or “Election Month” or even an “Election Quarter-Year.” Votes are to be cast within a single day, and the votes are to be counted at the end of the deadline period.
Various states have, over the years, deliberately undermined this Constitutional limit by passing state laws that essentially have drawn out elections for federal offices so they last for a week or more. In 2018, Democrats in California used state laws about ballot-harvesting to flip several House of Representative races after the official Election Day. In one blatant instance, Republican candidate Young Kim saw a 14-point lead on Election Day somehow disappear.
As I write this, Election Day was over a month ago. And yet, states such as New York are still finding and counting votes. This is not how federal elections are supposed to be conducted. Constantly shifting election deadlines invites fraud and errors, especially in the close contests. Democrats in many of these blue states have been incrementally gaming the federal election process for years, pushing the deadlines back further and further after Election Day to give them time to find enough votes to flip close races.
The President warned of massive fraud on the horizon
President Trump was sounding the alarm early and often this year about how governors, secretaries of state, and state Supreme Courts were deliberately going around their states’ legislatures to rewrite or even introduce new election laws.
When Attorney General William Barr warned in June about the mail-in fraud issues when multiple states suddenly changed their election rules, President Trump tweeted Barr’s concerns:
Barr: Mail-in Ballots ‘Absolutely Opens the Floodgates to Fraud‘ https://t.co/vd4AD3EPb0 via @BreitbartNews. This will be the Election disaster of our time. Mail-In Ballots will lead to a RIGGED ELECTION!
— Donald J. Trump (@realDonaldTrump) June 22, 2020
The President also tweeted out that same day:
RIGGED 2020 ELECTION: MILLIONS OF MAIL-IN BALLOTS WILL BE PRINTED BY FOREIGN COUNTRIES, AND OTHERS. IT WILL BE THE SCANDAL OF OUR TIMES!
— Donald J. Trump (@realDonaldTrump) June 22, 2020
One of the chief arguments made against the mass mail-in ballot schemes being prepared by blue states was that it was obvious they were fully planning to take weeks to count all of the votes.
While the governors and state Supreme Courts were busy quickly rewriting election laws and cutting the state legislatures out of the process, the Constitution is clear: It’s those state legislatures that pass election laws and set election deadlines.
Governors such as Brian Kemp in Georgia and secretaries of state including Kathy Boockvar in Pennsylvania, plus state Supreme Courts such as the one in Nevada pointed to the hysteria ginned-up over COVID-19 to justify their actions.
It was stated at the time these arbitrary changes were being implemented that this extra-legal activity was unconstitutional on its face, and now it appears the Supreme Court is going to take up the matter thanks to a new Texas lawsuit.
On Tuesday morning, news broke of a lawsuit filed just before midnight by the State of Texas against Georgia, Michigan, Pennsylvania, and Wisconsin. By arguing that the methods employed by these four states for altering federal election procedures are in direct conflict with the Constitution itself, Texas has managed to bypass all the other courts and take this straight to the SCOTUS. Later in the day, the Supreme Court indeed added the Texas lawsuit to the official SCOTUS docket and the SCOTUS has now given the four states being sued until Thursday, Dec. 10 by 3 p.m. to file their responses to the Texas lawsuit.
Reporter Kyle Becker highlighted the crucial issue in a Tweet about the Texas lawsuit:
"[T]he Texas lawsuit presents a pure question of law. It is not dependent upon disputed facts… [T]he State of Texas *doesn’t need to prove a single case of fraud to win.* It is enough that the four states violated the Constitution."https://t.co/RbmoKOH59z
— Kyle Becker (@kylenabecker) December 8, 2020
The article he referenced by Breitbart says that Texas brought the suit because the four states violated the Constitution and that the violation stands alone and apart from the resulting fraud.
Using Covid-19 as an excuse for quickly altering their state’s election laws and procedures just ahead of the vote will very likely fail to impress the Supreme Court. This is because there is no pandemic exception to clearly enumerated Constitutional rights. And the right of all U.S. citizens to fair and timely elections is certainly enumerated in our nation’s founding document.
What the Constitution makes clear
Article II of the United States Constitution begins by stating:
The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected, as follows:
Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the state may be entitled in the Congress . . .
The electors shall meet in their respective states, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each; which list they 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 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. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed.
Note carefully what the Constitution does not say.
The document does not say “. . . as the governor thereof may direct.”
It does not say “. . . as the secretary of state thereof may direct.”
It also does not say “. . . as the state Supreme Court thereof may direct.”
The document says “. . . as the Legislature thereof may direct.”
The counterargument being advanced is that because some states have been running federal elections however they see fit for many years, even though their methods of conducting these federal elections directly contradict the Constitution, the Supreme Court reasserting that they must follow the federal government’s founding document or have their federal elections voided is too extreme a remedy.
The fact that the Constitutional framework for federal elections was not enforced in previous years does not mean the current appeals to the Supreme Court to address these glaring Constitutional issues raised by the 2020 elections are invalid—far from it.
Claiming that a state which is violating the Constitutional framework for federal elections must be allowed to continue these violations because no one had ever bothered to make a legal challenge is an incredibly weak argument.
And yet, we’re highly likely to see this argument advanced to the Supreme Court in the next few weeks by people determined to certify a fraudulent election and make Joe Biden the United States President.
Brian Cates entered the political arena in March 2012, following the death of Andrew Breitbart. He is currently a political writer for The Epoch Times and UncoverDC. Brian is based in South Texas and is the author of: Nobody Asked For My Opinion . . . But Here it is Anyway!