2020 Presidential Election Could Depend on Little Known Constitutional Phrase
The media daily attempts to “move on” from the not-yet-completed Constitutional process for choosing our President. Still, there remains a very real possibility the election could end with no candidate winning 270 electoral votes.
In just the last few days, credible lawsuits have been filed in Wisconsin, Michigan, Pennsylvania, Georgia, and Nevada. These suits identify millions of potentially fraudulent ballots. But even more important, there are very strong claims of illegal voting schemes that blatantly violate state laws and set the stage for well-established equal protection claims under the U.S. Constitution. The Supreme Court could be forced to throw out several state results, keeping both Biden and Trump below the magic threshold for victory.
While it has been sporadically reported that President Trump would win a Constitutional contingency election in the Congress, as did Thomas Jefferson in 1800 and John Quincy Adams in 1824, you can rest assured that before that happens, there will be an epic battle over the meaning of “a majority of the whole number of Electors appointed.”
Is the “whole number” 538, the maximum number of electors? Or is “whole number” the total number of electoral votes actually sent to the Congress?
The answer to that question could very well determine whether Joe Biden becomes President or Donald Trump gets a second term.
Here’s how this could play out.
Wait for the Evidence
Litigation proving the extraordinary accusations of fraud is just beginning. It could potentially expose the greatest election scam in world history. Or it could turn out to be nothing but the imagination and musings of people suffering from an inverse Trump Derangement Syndrome.
None of us will know until the evidence is presented.
No matter your opinion of which might turn out to be true, any respecter of the rule of law, the Constitution, and representative government should want all sides to have their day in court so the claims can be proven or disproven.
Faith in our elections requires transparency, verification of close results, and legal remedies for any illegal activity. That process is still happening in several states, but it is not too early to think through the Constitutional solutions to the possible scenarios.
Election Laws Were Broken
Regardless of the fraud claims, it is an absolute fact that the election laws were broken by over-zealous Governors, Secretaries of State, and local election officials.
In Wisconsin alone, where the margin is about 20,000 votes, the Thomas More Society’s Amistad Project claims to have identified more than 150,000 potentially fraudulent ballots. The public interest law firm presents evidence that basic election law regarding photo identification and the definition of “indefinite confinement” was violated by nearly 100,000 voters. These claims, if proven, could leave a court with no choice but to intervene.
Each state scheme resulted in a minimum of thousands of illegal votes, the inclusion of which could poison the entire system in their state and the exclusion of which would disenfranchise those who believed they were legally casting their vote because the “official” said so.
That no-win option alone could be enough to toss the results in several states, most notably Pennsylvania, but also Wisconsin, Michigan, Georgia, and Nevada. There is also the possibility of an equal protection claim for having different rules across a state that favored certain voters or candidates.
Could Neither Candidate Win?
If the legislators in those states refuse to exercise their duty under Article 2, Section 1 to appoint the Electors, then any number of those states could go without Electors and neither Biden nor Trump get to 270.
Just for an example, let’s assume only Pennsylvania, Georgia, and Michigan are tossed by the courts. Biden would have 254 Electors to Trump’s 232.
Now the definition of “whole number of Electors appointed” becomes critical.
If that denominator is 538 like everyone currently assumes, then no one has a majority and Section 4 of the Twelfth Amendment kicks in and Trump will win with at least Twenty-Six state delegations choosing him.
According to the Congressional Research Service, the 1872 Election is at least one precedent of the denominator remaining the total possible Electors, even though the Arkansas and Louisiana Electors were not counted in the numerator. In other words, no candidate was able to count Arkansas and Louisiana in their number, but they were counted as part of the “whole.”
On the other hand, after the 1864 election, one of the Nevada Electors did not cast their vote and the “whole” was reduced by one. If that is applied in our above scenario, the whole would become 486 and Biden’s 254 would give him the presidency.
While this outcome seems unlikely, it becomes far more plausible the more we learn about the shenanigans that took place in so many states. Rather than leave the Presidency up to an untested, obscure clause in the Constitution, Legislators can solve this potential Constitutional crisis by simply doing their Constitutional duty.
If any state has their tainted election results tossed by a court, or if the legislators in a state cannot have confidence there is an accurate outcome, then the most prudent course of action is the constitutional course of action provided by Article 2, Section 1.
Yes, those legislators will take heat for choosing the Electors themselves (even though this was done by many states for years), but isn’t that what we “hire” legislators for? We hired them to make tough decisions and do the right thing even when it is controversial, but necessary for the good of the Nation.
Election Reform is Needed
No matter what the outcome of the Electoral College, it is painfully obvious that we need election reform to restore confidence in the accuracy of this most important process for a Constitutional Republic.
Now is the time to begin talking to your state legislators about ways to ensure the transparency and verification of our elections.
Past examples can be instructive. My first election to the legislature was in 1998 and the initial results showed me losing by 20 votes out of over 30,000 cast. We had a recount with full transparency and a reliable verification process. My opponent and I, with our teams, looked at every single ballot together and I ended up winning by 36 votes. When I asked my opponent if he planned to request a second recount as the law allowed, his response was that we already looked at each ballot and it was clear I had won. No claims of cheating or stealing. No one felt like they got a raw deal and everyone had confidence in the outcome.
That only happens when there is transparency, verification, and legal remedies. The Trump team was denied transparency and is now demanding verification and potentially will be requesting legal remedies.
Those who are shouting them down should be asking how they would be acting if the roles were reversed. Of course, these are the same people telling you to sacrifice your holidays, your business and your daily freedom for COVID crackdowns they themselves do not follow.
Hypocrisy is not new for those who love power at any cost.
Former TX State Legislator Rick Green is founder of Patriot Academy. An attorney and Constitutional expert, he’s focused on training the next generation of American elected leaders.