Having the Election Conform to the Constitution

January 5, 2021 Updated: January 6, 2021


Forget the Krakens, Dominion voting machines, harvested, absentee, and mail-in ballots, early voting, and all the other squid ink that’s been expelled into the atmosphere since the highly contested presidential election of Nov. 3, 2020.

The only thing that matters this week—indeed, the only thing that has ever mattered—is whether the 50 separate state elections for president of the United States were conducted in accordance with the Constitution and other applicable federal customs and statutes.

That’s the point that Sens. Ted Cruz, Ron Johnson, and others are making in their last-ditch effort to at least raise the issue. They write: “America is a republic whose leaders are chosen in democratic elections. Those elections, in turn, must comply with the Constitution and with federal and state law.

“The election of 2020, like the election of 2016, was hard fought and, in many swing states, narrowly decided. The 2020 election, however, featured unprecedented allegations of voter fraud, violations and lax enforcement of election law, and other voting irregularities.”

As it happens the most-contested results happen by sheerest coincidence to be the very swing states that everybody knew were going to decide the election months before it actually occurred, chiefly among them Pennsylvania, Wisconsin, Michigan, Arizona, and Georgia. Under the all-purpose excuse of the COVID-19 panic—and sometimes in the name of “racial justice”—many states liberalized their voting requirements, including Wisconsin, Georgia, and, notoriously, Pennsylvania.

The problem is, in many cases, they did so by court order or gubernatorial fiat—and not, as the Constitution explicitly states, by legislative action. Indeed, in some states, such as Wisconsin, courts actually struck down legislative attempts to tighten requirements and shorten the periods for early voting.

Meanwhile, in Pennsylvania, the epicenter of the alleged fraud, the U.S. Supreme Court quashed a Republican request to overturn a state court order that allowed mail-in ballots to be counted if they were received as late as Nov. 6, 2020. The Oct. 21, 2020, vote was tied at 4–4, with new Justice Amy Coney Barrett not yet seated.

Even after the election, the Supreme Court under John Roberts has steadfastly—and inexplicably—refused to get involved, rejecting a Texas lawsuit brought directly to it under Article III, which gives the high court primary jurisdiction in squabbles between and among states.

What the Constitution Says

It may come as a surprise to the vast majority of Americans that there is no constitutional right to vote for president. Indeed, the founders explicitly didn’t want that, fearing mob rule. The Constitution, Article II, Section 1, is clear: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”

The idea was to channel the votes for the highest office in the land through the state legislatures. This was in keeping with another foundational notion that has unfortunately gone by the wayside: the election of U.S. senators by the legislatures, and not by statewide popular vote.

This eminently sensible way of ensuring that senators would be representative of their states—and not the preening wannabe presidents they mostly are now—was upended by the misguided 17th Amendment of 1913, one of the so-called progressive amendments from that period that also gave us the income tax, prohibition, and women’s suffrage.

Electoral law has been modified several times, first by the 12th Amendment of 1803, which, in the aftermath of the disputed 1800 election between incumbent President John Adams and Thomas Jefferson, essentially established the two-party system we have today; later by the 20th Amendment of 1933, which set Jan. 20 as Inauguration Day.

In between, however, came the Electoral Count Act of 1887, later becoming part of the federal code in 1948. This law followed the highly contentious election of 1876 between Republican Rutherford B. Hayes and Democrat Samuel Tilden. And this is where Cruz’s motion comes in.

In 1876, with Reconstruction at its height, President Ulysses S. Grant decided not to run for a third term. In his place, the GOP nominated another Civil War general, Hayes, who had been governor of Ohio; his opponent was the governor of New York state. Although Tilden won the popular vote and—at first count—the Electoral College vote as well, questions were raised in Florida, Louisiana, and South Carolina about their validity. Their combined electoral votes would swing the election to Hayes.

There were many good reasons to be suspicious. All three states were in the Reconstructed South, and recently readmitted to the Union. There were credible allegations of fraud and open violence against black voters. In South Carolina, more than 100 percent of eligible voters cast ballots. There was even a wrangle over a single elector in Oregon.

In response, in January 1877, Congress created an electoral commission to sort things out, consisting of 10 members of Congress, evenly split between the parties, and five members of the Supreme Court. The commission heard the evidence, and then voted 8–7 to give the disputed votes to Hayes, handing him the presidency by a 185–184 vote electoral margin.

In exchange for not making a fuss, the Democrats won the rollback of Reconstruction, including the withdrawal of federal troops in South Carolina and Louisiana—something that Grant had long opposed.

Cruz’s Proposal

Cruz et al. cite the work of the commission as a possible model to resolve the current dispute.

“We should follow that precedent. To wit, Congress should immediately appoint an Electoral Commission, with full investigatory and fact-finding authority, to conduct an emergency 10-day audit of the election returns in the disputed states. Once completed, individual states would evaluate the Commission’s findings and could convene a special legislative session to certify a change in their vote, if needed.

“Accordingly, we intend to vote on January 6 to reject the electors from disputed states as not ‘regularly given’ and ‘lawfully certified’ (the statutory requisite), unless and until that emergency 10-day audit is completed.”

It’s highly unlikely to work, of course. Even though Speaker Nancy Pelosi’s margin in the House is now very small, no Democrat will vote for it. And Sen. Mitch McConnell’s Senate? Forget about it. No matter what happens in the Georgia runoff elections for both Senate seats on Jan. 5, McConnell has already made his peace with a Biden presidency, and squishy “moderates” such as Sens. Ben Sasse and Mitt Romney will be sure to put the boot in.

Still, it’s the principle of the thing—something that’s always in short supply in Washington and desperately needed now. If the courts won’t discharge their duty, then it’s up to Congress.

And for Cruz, Trump’s last rival in 2016, it’s a way to thrill the president’s base and position himself smartly for 2024. Because one way or another, the White House will still be up for grabs four years from now.

Michael Walsh is the editor of The-Pipeline.org and the author of “The Devil’s Pleasure Palace” and “The Fiery Angel,” both published by Encounter Books. His latest book, “Last Stands,” a cultural study of military history from the Greeks to the Korean War, was recently published.

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