The three weeks that followed the November 20th election demonstrated that our 200-year old democracy is far more vulnerable than many had imagined. While President Trump tried to use a combination of GOP legislatures and the courts to reverse the election, this effort was unsuccessful because local and state democratic guardrails held. State election commissions certified their votes, and the courts sequentially threw out lawsuits that presented no evidence of fraud. Some would argue that this proves that our system can withstand this level of assault, but we should not see this year as a bullet dodged. Instead, look at 2020 as a harbinger for future elections unless US election laws are re-written.
The 2020 election has revealed a playbook for any future presidential candidate. At the center of this playbook are conspiracy theories that globalists have created a system to alter GOP ballots and fraudulently increase the number of Democrat ballots. The majority of the GOP base believes President Trump’s re-election was stolen, so the next candidate only needs to build on this conspiracy theory.
While the Democrats may control the White House and the House, the Republican party controls many lower-level state appointments. The GOP controls battleground legislatures – such as Pennsylvania and Georgia. Separately, the makeup of Federal Courts has been radically reshaped under Mitch McConnell’s watchful eye. He has called it his “crowning achievement” as Senate Majority Leader. In general, the judiciary has become substantially more conservative with the appointment of judges loyal to right-wing ideology. Some who have been deemed unqualified by the American Bar Association.
If all judicial vacancies are filled in the lame duck, the United States Senate will have confirmed 275 Article III judges nominated by Trump: three associate justices of the Supreme Court, 55 judges for the US courts of appeals, and 217 judges for the US district courts. The ‘right’ judge in the ‘right’ state could change history with a ruling to overturn state and local results so that legislatures would be free to select a GOP electoral slate.
In many respects, the bulwark of democracy this past election were Governors, Attorneys General, and Secretaries of State who put their office above partisanship. For example, Georgia’s Secretary of State Brad Raffensperger, a Republican, has endured blistering criticism from within his own party – especially Senators David Purdue and Kelly Loeffler – for upholding the state’s vote count. Leading up to 2024, the GOP will likely try to push out officials like Raffensperger and replace him with party loyalists. If done, it’ll set the stage for state elections to be decided by partisan legislatures, not the popular vote. The courts and State Houses rubber-stamp the results, and American democracy becomes an idea lost.
Although many Americans believe we elect the president and vice president on Election Night, that is not the case. It is the Electoral College that formally determines who wins the election. The popular vote is not part of the Constitutional election calculus. Nothing in the Constitution prevents state legislatures from changing their states’ electoral votes if the election is not certified in time and the state Governor is in accord. Also, there are few penalties to stop so-called ‘faithless electors‘ from switching their electoral votes. For centuries, electoral college delegates have considered themselves morally bound to vote for the winner of the popular vote, and the process worked. In 2020, we witnessed a sitting President unsuccessfully attempting to persuade legislatures and electoral college delegates to override popular results.
President Trump is not subverting the Constitution, but he is weaponizing loopholes in it in a manner that undermines its democratic ideals. The fact that this is possible should be sufficient motivation to enact legislation to protect future elections.
Now is the time for new election laws. As it stands, we specifically recommend very few statutes pertaining to elections. Those are in Article II, Section 1, Clause 2 of the Constitution, the 12th Amendment (1805), and the Electoral Count Act (1887). All three of these laws enshrine the electoral college as the constitutionally established body that elects the president. The Electoral Count Act (1887) stipulates that electors are chosen for the Electoral College to be selected no more than 41 days after Election Day.
This year, that date is December 14th. Before December 14th, the “executive of each State” (usually the governor) must “ascertain” and “certify” his or her state’s election results and its chosen slate of electors. This is a fixed point in the process. Suppose states cannot certify by December 14th. In that case, the state legislature can name electoral delegates of their choosing as long as the governor is in accord. By slowing down the process so that results are not adjudicated in time, the popular vote is essentially nullified and state legislatures get to decide how their electoral votes are delegated.
The Constitution permits another loophole called ‘faithless electors’ that vote for the candidate of their choosing. In our history, there have been 93 faithless electors. Thirty-two states have some faithless elector law. This includes Michigan, where the Governor could remove, penalize, or simply cancel the votes of the errant electors. Penalties are generally small fines and are not a guarantee of protection. If there are faithless votes and the state does not take legal action, ‘faithless’ votes count.
Finally, a President that refuses to concede has a last resort under the Constitution known as a “contingent election” under the 12th Amendment. Here, the House of Representatives, not the electoral college, elects the president. For this to happen, electoral college results have to be disputed. In a contingent election, the president is elected by the House of Representatives. In a contested election, each state’s delegation votes “en-bloc” – with each state having one vote. This means Montana has the same number of votes as California, for example. If the newly elected House were tasked with selecting the next president, Trump would be elected president. A contested election happened in Hayes vs. Tilden in 1886.
To eliminate the chance of a legitimate election being overturned in the future, the new Administration and Congress should appoint a bipartisan commission to offer an Amendment to the US Constitution that creates new election laws. This new US Election Act needs to enact the following changes:
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The administration of US elections needs to remain a state and local function. We have seen a president undermine government institutions, so the last thing we need is a situation where elections report to a president motivated to influence elected officials. America has 10,000 voting jurisdictions. Responsibility is in the hands of local officials versus a federal bureaucracy. In 2020, local and state election officials were America’s 1st line of defense.
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Voting needs to be a Constitutionally protected right for Americans. There is no right to vote in the Constitution. It is not in the original Bill of Rights or early amendments from the founders. It wasn’t until after the Civil War the 15th Amendment guaranteed that the right to vote would not be denied on account of race. Later the 19th Amendment banned voting discrimination based on sex. Neither is recognized as an inherent right to vote.
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Besides making voting a fundamental right, the Act needs to state explicitly that all American citizens over the age of 18 as of “the Tuesday next after the first Monday on November” be allowed to vote in Federal Elections. The Amendment needs to explicitly stop measures to disenfranchise voters and, instead, create strictures to ensure that the Secretary of State encourages the widest voting registration possible.
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The potpourri of federal laws that apply to the electoral college must be revised to enshrine the popular vote as the only standard for electoral slates in all states. The convoluted processes for creating electoral slates would be thrown out. In its place, there should be an absolute standard that calculates electoral votes in proportion to popular votes. The electoral college is ‘winner takes all’ in all but two states – Maine and Nebraska. The new amendment would apportion votes based on results to the nearest hundredth of a percent. Thus, if a candidate received 25.34% of the votes in a state with ten electoral votes, that candidate would receive 2.53 electoral votes (.2534 x 10). Both sides of the aisle will see the merit. Every state has electoral votes, and every individual vote matters. For the Democrats, there is a path to win votes in heretofore unobtainable red states. For the GOP, changing demographics in states like Georgia or Texas would ensure a share in a future election, even when the state slips into the ‘blue’ column.
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This new amendment would also eliminate scenarios where state legislatures can arbitrarily override popular results. State-level challenges would be corrected by paper ballot recounts that are managed by the Secretaries of States. Recounts would only happen if the election had less than a 3% margin of victory. Secretaries of State would certify the result of the election as of the 41st day of the election with a provision that any court proceedings or lawsuits be concluded by this date or be invalid. Per the Constitution, electoral votes go to Congress in early January. In the event of a tie or an unresolved dispute, the election would go to the winner of the popular vote based on state certifications. In no case could popular election results be thrown out and the president selected by the Congress.
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Finally, while not part of an amendment to the Constitution, it is undeniable that the future voting will be by mail and early voting. This was a source of anxiety in 2020. The US electorate’s concerns would be remedied if there were national standards –locally enforced and adjudicated – for early and mail-in voting. This includes rules for signatures, dates for the final postmark for ballots to be accepted, and dates for counting votes mailed in time.
In the interim, the country needs a loud and unified message supporting our election processes and lauding the officials from all 50 states that worked the polls, the count, and the recounts. We also need to hear a unified message from Republican and Democrat leaders in the US Senate that took a similar oath as Gen. Mark Milley, who recently said:
“We are unique among militaries. We do not take an oath to a king or a queen, a tyrant, or a dictator. We do not take an oath to an individual. No, we do not take an oath to a country, a tribe or religion. We take an oath to the Constitution. And every Soldier…every Sailor, Airman, Marine, Coast Guardsman, each of us will protect and defend that document, regardless of personal price.”
Silence is tacit approval. A sound voice of change is needed for the good of the country.
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