Dec. 8 Does Not Have to Be the Day Democracy Dies in America

December 8, 2020 Updated: December 8, 2020


Investigations into the unprecedented and lawless 2020 election shouldn’t be truncated by the determination of how long it takes to ride a horse to Washington.

The left, Big Tech, and the media are loudly insisting presidential election results are set in stone after Dec. 8, the so-called safe harbor date for states to appoint their presidential electors. Our recently published white paper refutes this falsehood.

The only deadline that the U.S. Constitution imposes regarding the selection of the president is noon on Jan. 20. At that moment, President Donald Trump’s first term officially comes to an end, regardless of whether a new president has been determined. Dec. 8 and 14 are artificial deadlines derived from a federal statute enacted in 1948, just like the Jan. 6 date for Congress to receive and count the Electoral College results.

Congress routinely moves the count of Electoral College votes to a day other than Jan. 6, as it did in 1985, 1989, 1997, 2009, and 2013. An even more extreme example occurred in 1876, when Congress waited until two days before Inauguration Day to formally accept the Electoral College results, in order to give lawmakers time to resolve disputes that led to three states appointing two competing slates of electors.

Investigating the history of these statutes and the determination of the uniform date of the election reveals much of the consideration centered on the convenience of travel in the days prior to planes, trains, and automobiles, and on allowing sufficient time for farmers to complete the fall harvest.

If we follow the law properly, the 2020 election should become yet another case study for future history classes to consider. Although our divided Congress won’t be changing any “deadline” dates this time, the unique circumstances of this election make that unnecessary, because the Constitution takes precedence over federal law.

The wording of 3 USC 5—the statute establishing a “safe harbor” date for appointing electors—isn’t nearly as definitive as the left wants to believe it is. Technically, all the law says is that if a state has established laws governing the appointment of electors, and a determination is made according to those laws by Dec. 8, then that determination is final. That won’t be the case in at least five states, however.

The reported vote counts in Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin don’t reflect accurate outcomes of free and fair elections conducted in accordance with the laws established by state legislatures to govern elections. Local election officials illegally accepted private funding from a leftist organization that used the money as leverage to dictate election procedures without legislative authority; secretaries of state willfully ignored and violated ballot security laws in order to flood their states with absentee and mail-in ballots; election administrators failed to enforce laws related to signature matching, double voting, and out-of-state voting.

All of this is detailed in litigation filed by the Amistad Project, which also provides expert data analysis to estimate the extent to which these violations affected the outcome of the election. The analysis indicates that more than 1.2 million ballots in those five states were potentially fraudulent—and that the number of illegal ballots counted and legal ballots not counted is much greater than the margin separating the candidates in each of those states.

The wrongdoing was so egregious and extensive that accepting the reported results in those states would gravely undermine public confidence in the fairness of our elections. From a technical perspective, that means that any electors appointed to the Electoral College on the basis of those results weren’t designated in accordance with state laws. That alone renders the Dec. 8 “deadline” moot.

The Supreme Court affirmed 20 years ago, moreover, that the law doesn’t require states to appoint their electors by the “safe harbor” date in order for their electoral votes to be counted by Congress. That’s because the Constitution assigns state legislatures exclusive authority to determine the manner in which their state’s electoral votes are assigned. Every state has passed laws awarding its electoral votes according to the results of the popular vote, but that can only apply to the results of legitimate, lawful elections.

When the results of the popular vote are invalid due to rampant lawlessness, as is the case in at least five states right now, the only possible remedy is for the state legislatures to fulfill their constitutional duty by appointing electors as they deem appropriate.

The states have until Jan. 20 to investigate the fraud and illegality that marred the outcomes of the Nov. 3 presidential election, and state lawmakers should use every minute of that time, if necessary, to determine a legitimate winner that accurately reflects the will of the people.

There is no legal or logical reason that Dec. 8 should be the day democracy dies in the United States.

Phill Kline is a former Kansas attorney general. He currently serves as pulpit pastor of Amherst Baptist Church, a law school professor, and director of the Amistad Project of The Thomas More Society. Previously, he served as president of the Midwest Association of Attorneys General, was on the Executive Committee of the National Association of Attorneys General, and was co-chairperson of the Violent Sexual Predator Apprehension Task Force. He was a Kansas House member for eight years where he chaired the Appropriations Committee and the Taxation Committee and authored victims rights laws and welfare reform.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.