A Most Consequential Time

When are in the middle of one of the most consequential periods in American history.

An election was held today for control of the United States Senate for the next two years.

As I write this at 1030pm on election night this is what those races look like.

It used to be that if you were up 2-3 points with 87% of the vote counted you knew you were pretty much on the way to victory. In the world of mail-in ballots and large, late vote dumps from major urban areas that is no longer the case.

These numbers might look altogether different in the morning when you read this.

Congress will convene tomorrow to consider the electoral votes cast in the 2020 election for President of the United States.

That election has been in question by many since a number of swing states ceased counting votes in the wee hours of election night. When counting resumed a surge in the tally of mail-in ballots reversed the lead President Trump had in a number of states and Joe Biden was ultimately declared the winner in these states and the overall election by the news media.

This is what the votes looked like in six of the swing states that night. Biden ended up winning all of these but North Carolina. Ironically, Trump's margin was closer in North Carolina on election night than any of the other swing states.

Trump trailed in Arizona at this point on election night but ultimately closed the gap to a deficit of 10,457 votes.

His deficit in Georgia was 11,779 votes.

In Wisconsin it was 20,608 votes.

That is 42,844 votes that separates Biden from Trump. That also includes 37 electoral votes.

If those 37 electoral votes were in Trump's column it would result in a 269-269 electoral vote tie.

A week after the election I wrote that in assessing the election results that it was wise to follow the numbers rather than the narrative.

The narrative from that time has been that Biden won. "It was the safest and most secure election in history." "There is no credible evidence of election fraud." "Every court has thrown out challenges to the election." "Trump's claims of election fraud are baseless." "Allegations of fraud are conspiracy-fed lies."

Those that follow BeeLine know that I am a numbers, data and facts guy. 

I go where the facts and data take me. I also like to apply a common sense filter to everything I look at. Does it makes sense despite what the numbers say? Does it pass the smell test?

I have closely followed all of the election results and allegations of election irregularities and fraud.

There is a staggering amount of evidence

There are over 50,000 sworn affidavits alleging some type of election irregularities. There have been numerous statistical analyses questioning whether the vote tallies can be trusted. There have been many questions raised about the reliability of the Dominion voting machines used in a number of the key states. There have been thousands and thousands of ballots questioned because voters might have been dead, were felons, voted from out of state and the like.

My Democrats friends say there is no evidence. What do they think everything I have cited above is?

It is evidence. Of course, it is rebuttable, like all evidence is. In a dispute the other side is expected to come forward and bring their own evidence to support their case and rebut the other side. This is the basis of almost every trial in a court of law. Both sides bring their evidence and a judge or jury weigh both sides and make a decision based on the credibility of the evidence.

The problem in this election is that has not been done.

Every court has essentially refused to view the evidence. All of the cases have been dismissed on procedural grounds. There hasn't been any even-handed look at the evidence.

Almost every election official has refused to respond to the evidence. Even worse, in states like Georgia and Arizona, state officials have actively worked to prevent voting machines and ballots to be turned over for forensic examination and audits.

Yes, vote recounts have been done but if I count $1 million of money and half of it consists of counterfeit bills I will come up with $1 million every time I count.

I cannot determine the actual amount of money I have until I examine actually examine the bills.

The most persuasive expert I have seen thus far on the subject of determining whether election fraud was committed in this election with mail-in ballots is Jovan Hutton Pulitzer.  I saw a video of Pulitzer a month ago where he was being interviewed on how he could quickly do a forensic audit of all the mail-in ballot to determine whether they were fraudulent of not.

Pulitzer is an inventor with numerous patents in the QR code and scanning world. He knows this area backwards and forwards.

This is the original interview I saw of Pulitzer explaining how fraud could be determined with mail ballots. It is about 20 minutes long but you are going to learn more about how many of the outstanding election fraud questions could be answered in a few days.

Pulitzer later testified before the Georgia Senate on the 2020 election which subsequently directed him to do a forensic audit of the Fulton County mail-in ballots. He is still trying to get access to the ballots. He believes that he is being delayed while ballots are shredded.

You can view that testimony here. It is about 45 minutes long.

I have written in these pages for two months that President Trump had a difficult uphill battle in proving fraud.

First, it was going to be extraordinarily difficult to prove election fraud in the short time he had.

Second, it was going to be even more difficult to find legislators or jurists who would have the courage to overturn election results for fear they would be accused of disenfranchising voters (even if those voters were illegally cast).

Most criminal court trials are decided solely on circumstantial evidence. 

Many of you may remember the O.J. Simpson murder trial of 25 years ago. That was probably the strongest circumstantial case you could ever bring as a prosecutor. Most thought that O.J. was guilty. The jury did not agree. Neither did many in the Black community. The same facts heard by two different audiences resulted in two vastly different conclusions.

I see a lot of the same dynamics in play here.

Democrats see absolutely no evidence of any irregularities or fraud to change the result.

Trump supporters see volumes. 

However, the problem here is that there has been no full tribunal convened anywhere to fully weigh the evidence. No court or no state legislature (although there have been some committee hearings) has really examined both sides.

I am open to facts that disprove the allegations. I have yet to see much in the way of credible rebuttal evidence.

The U.S. Constitution specifies that the Electors are to meet in their respective states and vote by ballot for President and Vice President. It states that they (interestingly, "they" seems to refer to the Electors rather than the state legislature) shall sign and certify, and transmit the votes sealed to the direction of the President of the Senate (the Vice President).

According to the Constitution, The President of the Senate, in the presence of the Senate and House, is to open all the certificates and the votes shall be counted. If one candidate has a majority of the whole number of electors appointed they shall be elected President.

It is important to remember that January 6 is not mentioned in the Constitution. The only date that matters is January 20.

The January 6 date became important after the passage of the Electoral Count Act of 1887 which was enacted by Congress with the intent of providing more definition to the process. Congress wanted to keep themselves out of the middle of Presidential election contests as had been the case in the election of 1876 between Rutherford B. Hayes and Samuel Tilden which had some eerie similarities to our current situation. January 6 was formally established in that law as the day for the electoral votes to be opened and counted.

Some argue that as the Vice President is the presiding officer over the opening of ballots, the Constitution conveys the power to the VP to accept or reject competing slates of electors. That is a question that legal scholars disagree on. The fact is that early in the nation's history this did occur.

It is clear that the Electoral Act of 1887 was written specifically to limit the power of the VP to a mere oversight capacity with no other powers.

However, it should be noted that the constitutionality of the 1887 Act has never been challenged or litigated. Some argue that Act cannot override the Constitution.

We may hear more about this during the January 6 session. My view is that the Vice President does not have the power to approve or reject a slate of electors.

I also cannot see Vice President Pence doing this.

However, as the Presiding Officer might he make note of the dispute over the competing elector slates and refer the question back to the individual states for one more look before submitting the ballots to Congress?

This seems to be the same objective that Senator Cruz, Hawley and others in the House have in their stated objections to the electors in various states.

I don't see anyone in Congress who is attempting to change the election results. They merely want to provide another ten days for the states that are in dispute to conduct a forensic audit of the ballots along the lines that Mr. Pulitzer has suggested or for more time to investigate the allegations of fraud.

To me, this is a common sense suggestion to provide needed confidence in the election results. Objectively speaking, what is the objection to having a forensic audit done to insure that the election results can be trusted?

It would seem the only ones who could honestly object would be those 1) who participated in any fraud that might be uncovered or 2) those who are afraid that if real fraud is revealed they will have to take a moral stand and not ignore it like it never happened.

We will see what happens tomorrow but it is clear that there are not many that have the courage to even take the first step that could put them in a position to potentially have to take that moral stand.

Majorities in both houses of Congress almost certainly will vote against any effort to seek forensic audits in the disputed states unless President Trump has been sitting on some explosive new evidence that is incontrovertible and conclusive.

The Electoral Act of 1887 establishes a procedure for any challenges to disputed electors to go to a 2 hour debate in each chamber after which each House votes on which slate to accept. If the House and Senate disagree the certified slate wins. 

Each challenge is supposed to get 2 hours of debate but I would not be surprised to see Nancy Pelosi and Mitch McConnell cut off debate after one challenge (likely Arizona). I doubt that they want to see six 2 hour debates on each of the contested states. The Trump supporters better be able to get all of their evidence out on all states with that first challenge. I doubt they will get any more chances.

This will likely lead to a majority of electoral votes being cast tomorrow for Joe Biden as President-elect and Kamala Harris as Vice President-elect.

Will it end there?

It may but I doubt it.

The Trump team knows that the only true Constitutional date is January 20th at noon for the new President to be sworn in.

The 20th amendment to the Constitution specifies what happens between the point in time when the electors have been chosen and the swearing in date.

For example, if Biden were to die before January 20, Kamala Harris as Vice President-elect would be sworn is as President on Inauguration Day.

The 20th amendment also states that in the case where the President-elect "shall have failed to qualify" that the Vice President-elect shall act as President "until a President shall have qualified". 

This is interesting language. What is meant by a President-elect who has failed to quality? Could that mean that after the electors votes have been accepted by Congress that it is found that the vote was fraudulent? Could it mean that state legislatures de-certified their electors after the electoral college vote but before January 20?

Note that in this case the Vice President-elect does not become President. The VP merely becomes acting President until "a President shall have qualified". I interpret this to mean that the state legislatures would have to resubmit new electors for President.

The 20th amendment also refers to a situation where both the President-elect and Vice President-elect have not qualified. In this case Congress is given the power to provide by law who shall act as President or a manner to select an acting President "until a President or Vice President shall have qualified."

Based on this Constitutional language I would argue that President Trump will not let what happens tomorrow deter him. The Trump team will undoubtedly continue to pursue actions in the state legislatures to decertify the electoral vote. That could result in Biden and Harris being considered to have "failed to qualify" to be inaugurated.

As I have written before, should this last gasp effort fail, I do not expect President Trump to concede and expect that he will continue to try to prove the election results were illegitimate even if Joe Biden takes office on January 20.

Trump has the money and the motivation to continue on a quest to prove that the 2020 election results were illegitimate. His entire future business and political legitimacy depends on it. He will not quietly slink away.

What happens if, given enough time, Trump is able to definitively prove that a year or two down the road?

That is when the real constitutional crisis will be upon us.

The only redress at that point is an impeachment of Biden and Harris. However, that will not put Donald Trump back in The White House. The established order of succession would mean the Speaker of the House would be elevated to the Presidency.

If faced with those circumstances, how many members of Congress do you trust to make the right moral choice at that point?

That is why it is so important that the state legislators and Congress get this right today. 

They may think they are being placed in a tough spot now. Most clearly want this to go away.

They might find themselves in a much worse spot in the future.

That is why this is a most consequential time. 

Any votes or actions tomorrow will be most consequential for our country's future.

They also could prove to be most consequential for those who cast those votes.

People who are not on the right side of history do not fare well in the long term.

I trust we will know what side that is in time. It is not easy making consequential decisions in the middle of a storm.

That is why I see little downside on giving the disputed states another ten days to insure they have done the forensic audit and fully investigated the allegations of irregularities.

I don't see how history could ever judge someone that took an extra step like that harshly in these circumstances.

Those that refuse to take that step, if it is later shown to have been shortsighted, will not be so fortunate.