We Should Follow the Constitution When Electing Our President

December 22, 2020 Updated: December 28, 2020


The U.S. Constitution is the highest law in the land. It should be respected as we select our president.

The Constitution assigns state legislatures the role of directing the manner of appointing each state’s presidential electors, and stipulates that the president’s term expires at noon on Jan. 20 of the year following a presidential election. Most of the remaining details are filled in by federal law, which Congress rarely changes in a permanent way, but routinely tweaks in response to extenuating circumstances.

The date on which electoral votes are tallied by Congress, for instance, is regularly moved by a few days in either direction for various reasons. This doesn’t pose a problem, because the only deadline set by the Constitution comes two full weeks after the statutory date for counting the votes, which is Jan. 6.

The 2020 presidential election created extenuating circumstances on a scale not seen since 1876, when several states sent competing slates of electors. Congress responded to that challenge by overhauling the entire process, and there’s a strong case to be made that the most recent election merits a similar response.

The Amistad Project of the Thomas More Society, an election integrity watchdog, has filed litigation in numerous swing states and the District of Columbia detailing rampant irregularities and extensive violations of state election law. Moreover, this election witnessed an unprecedented infusion of private monies, more than $400 million, dictating to local election officials the manner in which they were to conduct the election, often contrary to state law.

This widespread lawlessness corrupted the reported results so thoroughly as to invalidate the electoral process instituted by the state legislatures, meaning one of the most fundamental procedures outlined in the Constitution wasn’t properly followed.

Federal law makes an allowance for the possibility of “failed” elections—and that term applies perfectly to what we just witnessed in states such as Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin. In each of those states, the number of ballots potentially affected by violations of state election law is significantly greater than the margin separating Donald Trump and Joe Biden, making it possible—even likely—that the reported results don’t accurately reflect the will of the people of those states.

Fortunately, there is still plenty of time left to resolve these issues before the constitutionally imposed deadline of noon on Jan. 20. Congress merely needs to postpone its tally of the Electoral College votes until the legislatures of those states have a chance to convene and sort out the irregularities.

Since a divided Congress is unlikely to do this on its own, The Amistad Project is asking the courts to enjoin Congress from tallying the votes of states whose legislatures haven’t affirmatively voted to certify the election results.

This will force governors to allow lawmakers to reconvene in states such as Michigan, where Gov. Gretchen Whitmer recently deployed state police to the Capitol to prevent Republican lawmakers from entering the building.

Remarkably, although the Constitution vests the responsibility and authority in state legislatures as a whole to select presidential electors, these state legislatures have been unable to even meet since Election Day, much less review the election process.

Federal law is important, and should not be set aside lightly. But the Constitution always takes precedence, and in this case, federal law acknowledges the possibility that irregularities in the conduct of elections might make it impossible to meet statutory Electoral College deadlines.

The Constitution makes clear that elections are not valid if they aren’t conducted in accordance with the laws put in place by state legislatures. We need to follow the Constitution in order to ensure that Americans have absolute confidence that our next president holds that office legitimately.

Phill Kline is the former Kansas attorney general. He currently serves as pulpit pastor of Amherst Baptist Church, and is 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; he chaired the Appropriations and Taxation committees 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.