This is the third essay in a five-part series.
The Article of Impeachment against President Donald Trump complains more about his asserting the 2020 election was corrupt than about other (supposedly) incendiary language. Taken in context, impeachment seems to be part of a wider campaign to divert attention away from election irregularities and to marginalize anyone who cares about them.
This diversionary tactic must not be successful. Corruption of elections is a much greater threat to the republic than a few hundred rioters entering the Capitol, as bad as that was. At a time when key constitutional curbs on the federal government have been disabled, free and fair elections are particularly vital.
This essay is part of a series outlining four simple but crucial goals for the next two years. My last essay discussed the need to educate state lawmakers about the special functions the Constitution delegates to them. This column explains why they must exercise two of those functions to reform federal election procedures.
Let’s start with the Constitution. It has three provisions relevant here.
The first is sometimes called the Elections Clause, but because the Constitution has several “election clauses,” a better name is the Times, Places, and Manner Clause (Article I, Section 4, Clause 1).
The Times, Places, and Manner Clause states:
“The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
In 2010, I explained this language in detail in a scholarly article (pdf) later cited in a dissent by Chief Justice John Roberts. In a nutshell:
- The clause empowers states to regulate the details of congressional elections, including drawing districts; setting registration, voting, and counting procedures; deciding whether there will be run-offs; and fixing the day for voting.
- It grants this authority to the entire law-making apparatus of the state not just the legislature per se. This includes the governor’s signing-and-vetoing and any authority reserved to the people by initiative and referendum.
- Congress may override state laws regulating congressional elections.
Next, the Constitution (Article II, Section 1, Clause 2) gives state legislatures power over presidential electors. It says:
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors …”
With one important limitation (explained below), the Supreme Court tells us this power is “plenary” (complete). The legislature may choose electors itself. It may prescribe how the people elect them. It may even dictate how electors vote. The legislature doesn’t share this authority with anyone—not even the governor.
The third constitutional provision limits somewhat the legislature’s power in presidential elections. It’s called the Same Day or Presidential Vote Clause (Article II, Section 1, Clause 4). It reads:
“The Congress may determine the Time of chusing the Electors and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”
In 2020, the congressionally selected “Time for chusing the Electors” was Nov. 3. The day on which the electors voted was Dec. 14.
With that background, let’s examine the 2020 presidential election.
The liberal media claim any problems were minor and couldn’t have affected the results. But they started making this claim just a few days after the election, well before any serious investigation was possible.
Furthermore, the claim rests heavily on self-serving statements by the very election officials ultimately responsible for screw-ups. It also relies on dismissal of the challengers’ judicial cases, although nearly all were dismissed for procedural reasons, not because their allegations were wrong. And—as explained below—there’s just too much evidence to the contrary for the media assertions to be credible.
There was one huge election irregularity no one is discussing, but which was undeniable: States throughout the country ignored both the Constitution’s Same Day Clause and federal law in carrying out the 2020 popular vote.
The law required each state to conduct balloting on Nov. 3. But many states adopted mail-in voting systems allowing people to cast ballots over periods of weeks. Moreover, those periods were not uniform across the country.
Not surprisingly, the election was marred by problems of the very sort the Constitution’s framers inserted the Same Day Clause to prevent: Some people voted in more than one state. Others voted from different addresses within a state. Handling procedures changed over time. And so forth.
There is further evidence the election was compromised in at least six swing states: Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin. Biden carried all of them, although all except Nevada have Republican legislatures. The margin in each state was narrow. If Trump had carried any three, he would have won a majority in the Electoral College. (There also is evidence of problems in North Carolina, but they were insufficient to prevent Trump from winning that state.)
A few state legislative committees have heard testimony on alleged irregularities. Some of this testimony likely will be disproved, but that’s the nature of an investigation. Even so, much of it looks very strong.
Consider Georgia. Last month, the Election Law Subcommittee of the state senate Judiciary Committee heard testimony and accepted sworn statements. The subcommittee did not investigate Dominion voting-machine conspiracy theories. But the evidence the committee did collect is disturbing enough. The chairman’s summary (pdf) reads in part:
“The November 3, 2020 General Election (the “Election”) was chaotic and any reported results must be viewed as untrustworthy. The Subcommittee took evidence from witnesses and received affidavits sworn under oath. The Subcommittee heard evidence that proper protocols were not used to ensure chain of custody of the ballots throughout the Election, after the opening of ballots prior to the Election, and during the recounts. The Subcommittee heard testimony that it was possible or even likely that large numbers of fraudulent ballots were introduced into the pool …
“There was a lack of enforcement of the law, sloppy handling of the ballots by those counting, deliberate covering-up of voting numbers by workers, lack of following the process during the recount, unsafe handling of military ballots, and insecure data such as on laptops and flash drives. … [O]ther times … ballots were counted more than once.
“A great deal of testimony supported evidence of a coordinated effort to prevent a transparent process of observing the counting of ballots during the absentee ballot opening period and on Election Night.”
Some testimony revealed only sloppy procedures. But there also was evidence of deliberate fraud. One example:
“At the State Farm Arena recount on November 14, Susan Voyles—who has 20 years’ experience managing election precincts in Fulton County [Atlanta]—reviewed a stack of 110 absentee ballots [ballots are normally placed in stacks of 100] and noticed they were ‘pristine.’ They had not been folded, and they did not appear worn as though voters and election workers had handled them. Each ballot was ‘bubbled in’ with exactly the same marking, which showed a small crescent of white in the bubble. It appeared as though one ballot had been marked and then reproduced over 100 times. In addition, one of these ballots bore the distinctive ink markings of having been pulled from a printer too soon. Almost all of these ballots were votes for Vice President Biden; only two were for President Trump. In her 20 years of election experience, Voyles had never seen any ballots like these.”
For the survival of the republic, we cannot sweep such evidence under the rug. During their sessions this year, the legislatures of the contested states must investigate more thoroughly (1) whether there were irregularities in their states, (2) if so, their nature and extent, and (3) how to ensure they don’t happen again.
The findings and solutions will vary from state to state. But one reform is absolutely mandatory everywhere—as well as compelled in presidential elections by the Constitution and federal law.
That reform is to end promiscuous use of mail-in ballots. There is no reason most people cannot go to the polls and vote in person. When you add in our colonial experience, Americans have done so for 400 years.
Justifiable absentees should vote only on the legally designated Election Day, either by mailing their ballot so that it’s post-marked on that day, or by voting by proxy or electronically.
Next time: How state legislatures can prevent big-city corruption from poisoning statewide presidential elections.
Robert G. Natelson, a retired constitutional law professor and senior fellow in constitutional jurisprudence at the Independence Institute in Denver, had a long career as a political activist and observer. In 2000, he ran second in a five-candidate field in the bipartisan primary for governor of Montana. He is the author of “The Original Constitution: What It Actually Said and Meant.”
Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.