07 Nov 2020

Remedies Exist


Frank Miele identifies the two possible ways of preventing a stolen presidential election.

There are only two avenues for a candidate who thinks he has been cheated out of a rightful victory, and both of them have the potential to make him look like (as Jim Acosta accused Trump of being) a “sore loser.” One is the judicial process, which is where we are now, and the other is a constitutional process, about which I will say more in a minute.

The judicial process allows a candidate to go to court to present evidence of fraud or violations of law in the casting or counting of ballots, but then what? Trump’s lawyers have already proven that their election observers were illegally blocked from watching vote counting in Philadelphia. They are also making the case that illegal votes have been cast in Nevada, and raising serious concerns about why vote counting halted mysteriously in big Democrat-run cities during the small hours of the morning the day after the election. But if Republicans prove wrongdoing, what exactly is the solution? Remember, you can’t distinguish a legal vote from an illegal vote once they have been counted, so what can a judge do? What could the Supreme Court do?

Well, in one small part, the Supreme Court is actually well-positioned to act. That’s because the court has already heard one case based on the constitutional provision that federal elections are the sole province of state legislatures. The court split 4-4 on a ruling that would have prohibited Pennsylvania from counting ballots received for three days after Election Day because that rule was implemented by a Pennsylvania court, not the Pennsylvania legislature. The federal judges ruled it was too late to change the lower court mandate, but ordered Pennsylvania to keep the late votes segregated in case the matter ripened into a controversy.

Well, controversy it is. So it is expected that the full court — now including Amy Coney Barrett — will revisit the matter of those late ballots and very likely throw them out. There is little doubt that they are unconstitutional.

But that could only reverse one small measure of mischief, and would not necessarily repair all of the errors of the election. For the rest of those — ones involving procedure or illegal ballots that cannot be distinguished from legal ballots — the courts have limited options. In fact, there really is only one certain judicial remedy, and it is so extreme that almost no one would envision it being used — namely, throwing out the results of the election and mandating a new election to be held in a particular state, be that Pennsylvania or elsewhere.

This would obviously have to be done on an expedited basis since the Electoral College vote is scheduled on Dec. 14, but there is no reason why an election could not be held in a timely manner on a date determined by the court and administered by representatives of the court. Or perhaps I should say there is no reason why that could not be accomplished except for the lack of willingness to intervene that we can expect from either district judges or Supreme Court justices. It would be a heavy lift.

So that brings us to the constitutional solution. This one is more elegant, but it still requires a heady dose of chutzpah. As noted, under Article II of the U.S. Constitution, the state legislatures are solely responsible for determining how each state’s electors are appointed. If a legislature were convinced that the presidential election in that state was tainted, it could convene and pass an emergency resolution declaring the election null and void and then choose to appoint a slate of electors by fiat. Since the claim of misconduct is being made by Republicans against Democrats, you can assume that it would take Republican-controlled legislatures to make such a bold move.

Fortuitously, Republicans do control both houses of the legislature in Michigan, Pennsylvania, Wisconsin, Georgia and Arizona. Nevada alone among the contested states has a Democratic legislature. If legislators are convinced that the presidency has been wrested out of Republican hands through chicanery or corruption, they could set the matter right by exercising their constitutional prerogative. This is a heavy lift also, but if states intend to ever exercise their authority under our federal system of government, there would be no more appropriate time to do so than when one party seeks to arrogate unto itself power that it has not earned through a free and fair election.



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