Sunday, December 6, 2020

A Coming Constitutional Crisis?

The December 14 date for each state legislature to select their electors for purposes of selecting the President of the United States is fast approaching.

However, it is important to remember a couple of important points.

While the Constitution makes clear that each state's legislature has the absolute power to appoint their electors it does not specify the exact date for this to be done nor the time that the votes of the electors are revealed.

These dates are established by a federal law rather than in the Constitution. That law states that the electors "meet and and give their votes on the first Monday after the second Wednesday in December." That date this year is Monday, December 14.

The federal law also establishes January 6 as the date that the electoral votes are to be opened and revealed in a joint session of Congress.

There is little doubt in my mind that illegal votes were cast in critical swing states in numbers that exceed the vote margins that favored Joe Biden over President Trump. It is implausible to think otherwise looking at the facts and evidence.

Consider just three of those states and the current margin of votes for Biden over Trump.

Arizona      +10,457 votes

Georgia      +12,670 votes

Wisconsin  +20,682 votes

If those three states went to Trump rather than Biden the electoral college vote would be tied 269-269.

The challenge for Trump's legal team is to find anyone with the courage to look at the facts and evidence as it applies to our constitutional guarantee of equal protection of laws and do something about it.

It seems clear that the massive expansion of mail-in ballots in the 2020 election had as its effect the establishment of two unequal methods of voting in these and other states. The lax standards used for identifying and validating mail-in ballots this year undoubtedly violated the rights of those voters who voted in person. Legal voters were disenfranchised with every illegal vote cast.

For example, this evidence was presented under oath in the Georgia legislative hearing on the election last week regarding know illegal ballot that were cast.


In addition, the mail-ballot rejection rate in Georgia was just .3% in 2020 but 6.4% in 2016 and 9.8% in 2018.

Similar rates were seen in many other states in 2020 that bear no comparison to prior years. This is despite the fact that many voters were using mail-in ballots for the first time this year. There was a clear expectation that rejection rates would actually increase due to so many voters unfamiliar with the mail-in ballot rules on signatures, witnesses and other statutory requirements.

How is that possible unless almost no signature verification or anything else took place?

There are also significant underlying legal questions whether the mail-in ballot rules in many states were constitutionally established.

That is the core question in the one case that has already gotten to the United States Supreme Court. This lawsuit was not filed by the Trump campaign but it would conceivably benefit. At issue is a challenge to the expanded use of absentee ballots in the 2020 election that was passed by the Pennsylvania legislature in 2019. However, the Pennsylvania constitution specifically establishes limited circumstances where absentee ballots may be used. The constitution may only be changed by constitutional amendment that requires a vote by the people. This was not done.

The Court is expected to rule on the merits of this case this week. That will be a very important case for the Trump cause.

If the Court rules that Pennsylvania illegally expanded absentee voting it could also affect the expansion of mail-in voting in Georgia and Wisconsin that also liberalized the voting rules without any involvement of the state legislature.

In my opinion, the clearest legal path for Trump to turn the results around is to have the Supreme Court find that these expanded mail-in ballots were illegally cast and to get these votes disqualified. It is a pretty straightforward legal question and does not require a lot of fact finding. This would overturn the vote certification in the state and would require the remaining legal votes to be counted to determine the winner. Considering the high percentage of these votes that went to Biden this would probably result in Trump being declared the winner in these three states.

Switching those three states would give Trump a majority of electoral votes.

If the Supreme Court does not side with Trump on the legal issue of whether the expanded mail-in ballot rules were illegally expanded, it will require that the Trump campaign prove that individual votes were illegally cast. That is almost impossible to do in the short time available and it is unlikely that any state court is going to want to get involved anyway. That has already been proven in the court challenges already.

That means that the only other hope for Trump is for the state legislatures in these states to effectively overrule the popular vote election and send an alternative slate of electors to Congress. It seems very unlikely at this point that he could get the three states he would need at a minimum to have a chance at turning the results of the election.

The problem with either the courts or legislature deciding to throw out votes is this will invariably mean that Democrats will charge the voters are being "disenfranchised". It doesn't matter if the reverse is actually true. You have probably heard the saying "possession is 9/10 of the law". The same is true here regarding those "certified"votes in each state. 

Even if the legislatures step up and send an alternative slate of electors, the House and Senate would have to vote on which of the two slates of electors they would accept. Assuming a party line vote, you have to assume that the Democrat-controlled House would vote to accept the Biden electors. As for the Senate, we don't even know what the composition of that body will be on January 6 since Georgia is voting on its two Senators on January 5. However, even if the GOP wins those seats, who is to say that a Romney, Collins or Murkowski might not defect and support the Biden's electors?

I just don't see a good path for Trump to win going this route. It is going to be too hard to compete against what are called the "certified" results of electors selected by the people. He needs a definitive ruling in a court of law that unequivocally disqualifies illegal votes in the certified state results. 

Let's assume that we might somehow get that result in the three states cited above---Arizona, Georgia and Wisconsin---ending in a 269-269 tie in which none of the electors are in question when the votes are opened in Congress.

It is in this eventuality that the Constitution is clear. If no candidate has a majority after the electors vote, then the responsibility for choosing the President goes to the House of Representatives with the representation from each state having one vote. Each state (California as well as South Dakota) gets just one vote and that most likely would be determined by the Republican-Democrat split in each state. In the new Congress (which is scheduled to be sworn in January 3) the GOP will have control of at least 26 state delegations. Under this this scenario it appears Trump would win the Presidency.

Although it could be messy, in most of the scenarios outlined above I believe our Constitution, federal laws and federal judiciary can give us a result without a full blown crisis.

My biggest concern is what happens should Joe Biden be inaugurated under a significant cloud of suspicion and doubt about the legitimacy of his election? This appears to be a near certainty should he win the electoral college vote due to the fact that there was simply not enough time to fully investigate and prove the allegations of election fraud.

The claims are so substantial that investigations into the allegations of fraud and illegalities could continue for a year or more even with Biden in office.

This would not be an unusual period of time to conduct a thorough investigation into the allegations. For example, look at how long the Mueller investigation continued which was formed to look into questions of Russian interference and collusion in the 2016 election. Look at the length of time the Durham investigation has been going on in looking at charges that the Obama administration manufactured the Russian collusion investigation to spy on and undermine Donald Trump, his campaign and his administration.

At this point in time I have a hard time believing that the allegations of election fraud in the 2020 election are just going to go away if Biden is inaugurated. There are enough people invested in this that it is simply not going to be forgotten. Whether it is Rudy Giuliani, Sidney Powell or Donald Trump himself, I can't see the investigation into election fraud ceasing. 

Let's assume the investigation continues and a smoking gun is revealed a year from now. Conclusive evidence surfaces that shows there was a coordinated effort by Democrats across the country to commit election fraud to deny Donald Trump the election. The evidence is irrefutable. The conspiracy leaders confess and the DNC is implicated.

What happens if it is proven that the sitting President and Vice President are clearly illegitimate in that they won by a fraud committed on the American voter?

That is a real constitutional crisis.

The Democrats spent most of Donald Trump's four-year term trying to prove that he was somehow illegitimate due to Russia collusion. Their clear intent was to remove him from office. However, those charges ostensibly were only directed at Trump personally. There was never any evidence of election fraud although early on the Democrats hinted that Russia had somehow hacked voting machines. These assertions lost credibility when even Barack Obama debunked that claim.

The end game for the Democrats appeared to be to remove Donald Trump from office for committing some crime involving collusion with the Russians. This would have assumedly led to impeachment charges and his removal from office in an impeachment trial if he was convicted.

However, there was never a hint in all of this that Mike Pence was involved. If the Democrats had removed Trump the Constitution would have operated to elevate the Vice President to the Presidency.

What happens if election fraud is discovered that indicates that both the President and Vice President were elected illegally?

There is nothing in the Constitution that speaks to this.

Can they both be impeached?

Does this mean the Speaker becomes President? However, what if the Speaker is a Democrat whose party was complicit in the fraud? What then?

How does Donald Trump ever get justice?

How do the American people?

What we might see over the course of the next few weeks is not a constitutional crisis.

That will only come about if what occurs over the next few weeks is not definitive and smacks of injustice in light of the facts and evidence.

As a result, the pot will keep boiling.

It will boil over and be difficult to clean up should we find out the truth in a year or so.

That is why my advice to the judges and legislators who have the responsibility to get this right show the commitment, conviction and courage to do what needs to be done NOW.

This is not the time to ignore this or hope that it will go away because it requires some hard decisions.

Any crisis that anybody thinks they are managing away today could be a very real CRISIS tomorrow.


If you are interested in an in-depth discussion of all of the legal considerations that could be involved in a disputed Presidential election I recommend you read Edward B. Foley's article in Loyola Chicago University Law Journal that was published a year ago, "Preparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management". 

Just to show you that reality is often much more complex and crazy than the best fiction anyone could write, Foley postulates a 2020 election that has Pennsylvania's vote in question due to late counted mail-in ballots.

In Foley's fictional account Trump leads on election night by 20,000 votes only to lose by several thousand votes due to late arriving "blue shift" votes.

Of course, the reality was that Trump was leading by 700,000 votes on election night only to be declared the loser by 82,000 votes. 

The truth is that there were similar "blue shifts" after election night in Georgia, Michigan and Wisconsin. Foley didn't even imagine that all of this also occurred after the vote count was suspended in all of these states before the "blue shift" votes starting coming in.

That is why "truth is stranger than fiction" often times.


  1. This is an irresponsible piece. You use a Twitter screen shot as "proof" of various elements of improper votes. But this "evidence" appears to come from Ray Smith, who is the Trump lead election lawyer in GA. What evidence does lawyer Smith have for his allegation of 2,506 felons voting illegally? Indeed, you use the same Twitter screen shot in two successive columns. Does saying it repeatedly make it true? We have certainly learned from the last four years that saying it repeatedly will cause a lot of people to THINK something is true. This is manipulation, not leadership or journalism or worthy of an otherwise talented and thoughtful essayist.

    1. This was sworn testimony in a legislative hearing. It is evidence of fraud. Like all evidence it is rebuttable. I am certain that a file is available with every name of those who voted illegally on it should election officials want to audit that claim. I doubt they have any interest in doing so for what is shows and what is says about their administration of this election.

      Do you also honestly think that Smith would want to risk his law license by making unsubstantiated claims in a hearing like this? I could have also cited a number of other similar examples of fraud by Matthew Braynard and Richard Baris who have done extensive data analytics with voter files matching those who voted against the deaths files, national change of address files etc. The same was undoubtedly done in GA by matching those who voted compared to a felon file. Every data analyst who has done this data matching has found evidence of massive fraud and irregularities. Those are the facts, it is not manipulation. There is nothing irresponsible about anything that I have written. The only people who are being irresponsible are the election officials and politicians who allowed mail in voting to be abused in the way it was.

      You clearly have spent some time on this issue. I appreciate the comment but I assume you were not aware of all of the extensive data work that has been done on those voters files. It might making better sense to direct your interest and passion to those election officials in GA to take those data files and flag those voters so they are not voting again in Georgia on Jan 5.