Today is the day the president is elected. It is not on Election Day or when state governors certify the electoral votes. It is only when Congress formally counts those votes, and the 270-number threshold is reached.
The 2020 presidential election has been and is in dispute. This is not out of capriciousness, as critics of the President claim. State election laws were altered in reaction to the pandemic crisis. This was done without the proper constitutional channels that allow for changes. As a result, a wide range of voting irregularities and anomalies took place tipping the election in favor of one candidate over the other by less numbers than those of the votes whose validity is in question.
An argument can be made whether the irregularities resulted in a sufficient number of invalid votes determining or not the election. Unfortunately, no proper due process judicial procedure has ascertained whether the Republican grievances have merit. The fact that the Supreme Court punted and did not hear the case of the constitutionality of Pennsylvania’s mail-in voting mechanism, a request which predated the election (October 28th, 2020), brought about the saliency of today’s Congressional electoral vote counting procedure.
First, let us see what the Founding Fathers would have to say. To serve as a buffer between strict popular sovereignty and the pitfalls of Athenian direct democracy, they focused on a system that prioritized freedom and its preservation. The architects of the American Republic embraced Rome, Jerusalem, and only took from the Greek model its abstract notion. As believing Christians, they understood well human fallibility, natural law, and the transcendental value of being free. Thus, the brazen yet brilliant inclusion of systemic checks and balances, and dividing the tasks of doing the peoples work, had a profound reasoning behind it.
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The notion of an electoral college was not just for the purpose of placating the smaller states so they could approve the Constitution. The idea of placing a group of selected wise individuals as ultimate guardians over potential mistakes made by the populace or subversive schemers against the country, was also a significant factor. In today’s woke culture with all the “social justice” Marxist guerrillas in full force, the idea of tempered individuals that could avert the suicide of American democracy, would appear to be an over reaction and prudish. Yet this is exactly what the Framers wanted. On January 6th, the resiliency of the constitutional foundation will be put to a test.
America’s indirect democracy, purposely formulated so, grants enormous power upon two entities: the electors and the state legislatures. These safeguards, however, are viewed by some as being disenfranchising elements. The electors are the actual components that vote for the president. Thus, the indirectness of American democracy. The state legislatures are the most powerful structures within the electoral system. It is not the courts, or the governor’s, the secretaries of State, nor the election boards that can make or change electoral laws.
These are mere enforcers of what state legislators have already approved. In other words, the state legislatures are the only capable body of crafting the state laws that govern elections and determine the rules of the game. Additionally, they are endowed, constitutionally, with the power to challenge popular sovereignty if, in their estimation, the people have chosen wrong or have been done wrong. Categorically, they can choose their own electors and override any other.
Six state legislatures presided over hearings where witness testimonies, video recordings, statistical evidence and software malfeasance were presented. Subsequently, they decided to emit their own group of electors, as empowered to do so by the Constitution. Republican electors, therefore, in Pennsylvania, Georgia, Michigan, Wisconsin, Arizona, Nevada, and New Mexico cast, on December 14, 2020, alternative votes for President Donald Trump, while the certified Democrat electors, in those same states, did so for former Vice President Joe Biden. There will be on January 6thtwo dueling votes from seven states.
Vice President Pence, as the presiding officer of this adjourned meeting of Congress, is within an arguable position of choosing one group of electors of the seven-dueling electoral group of votes or discarding them all. The first option could feasibly confer the presidency to any one of the candidates, depending on which group he chooses. The other alternative would be to discard both groups of electors from the mentioned states. This would not give, neither Trump nor Biden, the needed 270 electoral votes. At that point, it becomes a contingent election decided by the House, as it happened in 1801 and 1825 (in the presidential cases).
The Electoral Count Act of 1887 (“ECA”) would unlikely be employed, given the already highly polarized nature of the 2020 election and the view shared by many experts that the ECA would not muster constitutional scrutiny. This option would likely force a Supreme Court hearing on whether this mechanism was appropriate within the confines of the Constitution. The issue of constitutionality is at the core of the dispute in the 2020 election.
The United States Constitution grant’s the exclusive power of crafting altering electoral laws, as was mentioned earlier, to the state legislators. The impact of the changes in the laws that dictate election rules were changed by entities not constitutionally authorized. This is one constitutional challenge. The second constitutional concern is that of the 14th Amendment and the equal protection provision. In key battleground states, there existed two operational rules four voting districts, because of the changes to the state’s electoral laws that governors, state officials and state courts made.
In districts which were Democratic versus those which were Republican, rules as to “curing” ballots, for example, were different. Such was the case with the dispersing of outside funding, such as that from the Zuckerberg’s NGOs. The double standard exercised through different procedures, makes a strong case that the integrity of the election was not equally protected.
No matter what the outcome, today will be a historical event of tremendous proportions. How far the Constitution will be factored into, remains to be seen. There can be no doubt, however, that the state legislators which sent alternate electors were acting squarely within their lawful jurisdiction. I believe I know which way the Founding Fathers would rule on this one.
Julio M Shiling, political scientist, writer, director of Patria de Martí and The Cuban American Voice, lecturer and media commentator. A native of Cuba, he currently lives in the United States. Twitter: @JulioMShiling // Julio es politólogo, escritor, director de Patria de Martí y The Cuban American Voice. Conferenciante y comentarista en los medios. Natural de Cuba, vive actualmente en EE UU.