For decades Americans have been numbed to the unconstitutional “laws” handed down by executive fiat and rogue judges. But with the blatant fraud of the 2020 election, things are about to change. The teams fighting for the Trump Administration, and the rights of all Americans, are cleverly employing multiple strategies to overturn all fraudulent election results.
- Team Rudy seems to be determined to prove physical fraud.
- Team Powell is building a case for electronic manipulation.
- Team Wood is working on a conspiracy theory.
Some of these arguments may have some validity and in time we may see Trump, and every person who cast a legal vote vindicated in the fight against election corruption. Having said that, with time quickly winding down, the single most likely, solid, and settled argument lies in the manner in which many states determined the very process by which they held their elections.
The founding fathers clearly understood the difference between a democratic and republican form of government and sought actively to preserve the latter. Their view was that the people select the legislators and the legislators legislate, but the power to replace legislators that didn’t represent them remained with the people.
A perfect example of this is the lawsuit of Pacific States Telephone & Telegraph Company, PLFF in Err., v. State of Oregon where the court said:
“the creation by a state of the power to legislate by the initiative and referendum causes the prior lawful state government to be bereft of its lawful character as the result of the provisions of § 4 of article 4 of the Constitution, that ‘the United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence.”Chief Justice White, Supreme Court
In other words, mandating so-called laws that did not go through the legislative process is unconstitutional. This is further validated by Luther v. Borden, which said that the right of a republican form of state government as legitimate is as guaranteed by the constitution is enforced by Congress and the President. Again, laws are made through the legislative process, and only through the legislative process.
Republican Party of Pennsylvania v., Kathy Boockvar seems to do a good job of framing the argument I believe will prevail. Noting that fiat election rules “fundamentally alter(s) the nature of the election” and that the “constitution reserves a special role for state legislatures in federal elections” they seek to prove that the Pennsylvania Supreme Court has “impermissibly altered both ‘time and manner’ established by the general assembly ‘for holding elections’ and ‘appoint[ing] electors’”. The suit spends a considerable amount of time referencing settled law to justify this opinion and in an amicus brief the state of Ohio further substantiates the argument because reversal “is crucial to protecting the Constitutions division of authority over state election laws.” I will not trouble to cite the individual cases referenced in the lawsuit and the Amicus brief, except to note each one is fascinating to read.
Given that this election, and many others, have already been certified in so many states, the relief Trump will likely seek from this injury is to prohibit the states from sending electors to vote. The strategy, more fully formed, seeks to prevent either candidate from obtaining the 270 votes necessary to secure the presidency, reverting the decision to Congress. Many of the state elections would be considered “fruit of a poisoned tree” if this interpretation of the law stands, so it is not impossible to consider this as a likely outcome.
It is important to consider the necessity of settling this issue. Removing state legislatures from the process of legislating and awarding it to either the executive branch (legislating by executive order) or judicial branch (legislating from the bench) of state governments would create an unfair imbalance of power for the benefitting branch of government and represent a dangerous step away from self-determination. For example, if a governor has the right to make election law at the expense of the state house, what would stop him from extending his term by fiat, or taking the right to levy taxes upon himself?
Because the issue of election law has been settled for so many years, by so many cases, if there is a path through the court system for Trump, this is the issue where the basis of the argument is most likely to succeed for him. The “Elections Clause”, article 1, section 4, sets express and implicit limits on the powers of states, and like it or not, regardless of state law, the constitution is the supreme law of the land.
In any event, regardless of your political affiliation, restricting any form of government overreach should be an important issue and one worth bipartisan concern.