WOW!! Face Book has come alive with the joyous news. One says:
“SCOTUS has REJECTED
the Texas lawsuit. Thank you for doing the right thing.”
And, from a
half-wit who has probably never read the Constitution: “It’s about damned time
the courts started holding up the Constitution.”
The short
answer is, “Not this time, it didn’t. It may have reached a pragmatic
resolution, but it sort of kicked the Constitution in the knee, too.” When, oh when, are we going to bring a
required Civics course back to America’s schools?
Still, I am
at sixes and sevens on this one.
First: The Court did the practical thing, and I am
glad they did…except for the part of me that loves the Constitution. Of course, the very same people who are appalled
by the President’s challenges are the same ones who urged Al Gore to “unconcede”
in 2000 and to challenge the results of the election in favor of President
George W. Bush. Apparently, it is only
immoral, evil, and fattening to challenge an election if you are a Republican. But I digress.
Another Face
Booker excoriated the Court for its per curiam decision. Why didn’t the Court write a 9-0 opinion
stating that “…enough is enough and that this kind of …abuse of the legal
system will not be tolerated?”
There is a
simple answer to this one. If you don’t
need to do so, don’t do it.
There is no
way the Court was going to come to that proposed conclusion. The best that they could do is to acknowledge
sub silentio that they blew it with the Pennsylvania decision before the
election and that, the news media having convinced the rest of the world that its
decision regarding who won is the only one to be trusted, it is too late to do
anything about it.
It reminds
me of a story Stan Musial once told.
Augie Donatelli, a great umpire, once called Musial out at second base
after the shortstop missed the tag. “Augie?”
Musial asked.
Donatelli
said “Look, Stanley, you know you were safe.
I know you were safe. He
(pointing at the shortstop) knows you were safe. But those folks in the stands saw me call you
out, so you’re out.”
Millions of votes that should never have been counted were, unconstitutionally, counted and Joe Biden will be our—yours, mine, every American’s—President come 20 January 2021. Just as was Donald Trump on 20 January 2017. I’ve read the Constitution, and we only get one President at a time, something the “He’s not my President” morons in both parties just don’t get.
Now, let’s
talk about why and how President Trump could have been robbed of the election and
why he should, nonetheless, at this juncture, keep doing the job he was elected
to do until high noon on 21 January next, and then go home and do what every
President since George Washington—except for Barack Obama—has done. Butt out and let the new guy do it his way.
There is a
woman, one of those New England elitist types, who scorn average Americans in the flyover States. She has ended up, uninvited, on my Face Book page for the past year or
so. Her name is Heather Cox Richardson, and the nonsense she spouts is usually
laughable. But she is one hell of a
writer, so her drivel can be convincing if you admire excellent writing and
know nothing about the Constitution or American History. She is one of Lenin’s perfect “useful idiots.”
Take this
from her 10 December article: Democrat
Biden won the election by more than 7 million votes [irrelevant] and 306 to 232
electoral votes [as Snopes, et al, would say, “partly true”]. She, an obviously educated woman, must surely
know that if 7 million more Americans voted for Joe Biden than for Donald Trump,
but all 7 million came only from California, New York City, and Chicago, and if
the President carried enough States to prevail in the Electoral College, he is
President. The Democrat protest, using
Little League rules, that it was Hillary Clinton’s “turn” and only the
Constitution got in her way in 2016 is silly.
And it is misleading drivel of the sort that makes Americans in 2020 distrust each other.
So, you may legitimately say, how come you don’t just roll over and take it and acknowledge that Joe Biden is the lawfully elected President? Well, because it is not an either-or game. I’ll say it again: I think Joe Biden received a sufficient number of votes in a sufficient number of States and Commonwealths to become our next President. But I think his party played dangerously fast and loose with the Constitution to ensure it got the outcome it wanted.
Time for
some history.
Playing with
the contents of the ballot box is a real threat to American “democracy.” In 1960, the Chicago Democrat machine and the
Texas Democrat Committee made sure that Kennedy-Johnson won the 24 Texas and 27
Illinois electoral votes. Kennedy won, 302-219.
If Illinois and Texas had gone the other way, Nixon would have won
270 to 252.
I remember
that election, the first one that I do actually remember. Cook County did not release its vote count
until after the results from every other county in Illinois had been
reported. Kennedy won by just shy of
9,000 votes, many of whom were almost assuredly long dead and buried before
election day. Why am I so sure? Well, as the proud son of a pair of proudly “yellow
dog Democrats” in one of the few strongly Democrat counties in the State, I
heard even them wonder about “Chicago.”
(Most non-Illinoisans will never know the intensity of distrust between
Chicago and “down-State.”)
Nixon was
urged to contest the election but conceded.
I recall hearing that he said something along the lines that the unstable
world we live in needs to be immediately confident that America has a President
right now. The sad thing is that the
theft of the 1960 election and his honorable response to that theft probably planted
the seeds for Watergate, a whole series of steps President Nixon took to make
sure he wasn’t robbed again.
As an aside,
one Saturday morning some 25 or so years ago, I sat in a conference room with Sam
Dash of the Ervin Committee fame. As we
waited for a new draft of some pleading or another to come from the “word
processing center,” I told him that I had been stationed at Marine Corps Base,
Quantico at that time and read the Post, where the political reporting in Section
Two—the Local section—far surpassed most political reporting on the front pages
of the major newspapers in America.
“You know, Professor, I think that if I had been advising the President, I would have told him to go out to the briefing room ‘right now. Here’s some notes
You know folks, being President has some amazing perks. Washington can be at a standstill under a three inch blizzard, and the President may say to himself, “You know, a glass of fresh squeezed Florida orange juice would really hit the spot right about now. Fresh squeezed, right off the tree. Yeah, that would be tasty.” And in an hour or two, someone who had heard that muttered statement would bring in a glass of orange juice from an orange, pulled from a tree in Florida, and flown to DC within those past two hours.
A few weeks ago, some of my closest advisors and I were talking about the upcoming election. I looked out the window and mused, “You know, Senator McGovern has got the Democrat nomination pretty well locked up. I’d kinda like to be a fly on the wall over in Larry O’Brien’s office over in the Watergate to see how they are going to screw McGovern out of the nomination and give it to Teddy Kennedy.”
Now, you all
have heard that there was a break-in in the DNC office, and it appears that it
was organized by some people I have trusted and admired, thinking that ‘Well,
we can sure find that out.’
That is, of
course, against the law. I have
regretfully accepted the resignations of some of my most senior advisors for
failing to promptly tell me what had happened, and we will trust the legal
system to take appropriate action against anyone who might have broken the law.
In the
meantime, I need to get on with the Country’s business. [PAUSE HERE SIR.]
BUT ....... You know, I would
like to know what O’Brien and the DNC are going to do to Senator McGovern. Might be a story in that, don’t you
think? Well, thanks everybody.’
Professor
Dash looked at me, laughed, and said, “You’re right. That would have been the story and I would
have just been another Professor at Penn Law.
I’m glad they never asked for your advice!” That’s one of those conversations you never
forget.
Now, where
was I?
That is why
I wish the President could have brought himself to concede—and then run in 2024
to fix what is about to happen to a country in which the primary and only universal
qualifications for service in the government appear to be race and gender.
But he did
not and I can accept that, too. You see,
what the Democrat Party did is just another example of their disdain for the
Constitution of our Republic. They were
afraid they could not win within the bounds of the Constitution, so, applying
the Emanuelian Principle beloved in their Party since the 1990s, they chose to
make sure that adherence to the structure created in Philadelphia in 1787 did
not get in their way and then made sure that the disaster of the 2020 pandemic
did not go to waste.
About the
Constitution
Article I,
section 4 of the Constitution, the “Elections clause,” provides that:
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.
Congress
has used that exception to enact laws or propose amendments to the several
States several times. It enacted a law,
approved by the President, to set the first Tuesday after the first Monday in
November as the date of all biennial elections
for Representatives to Congress and, after the ratification of the XVII
amendment, the election of one-third of the Senate. Amendments XIX and XXVI granted the right of
women and 18 year-olds to vote. (It
would be interesting to see what would happen if a State adopted a law
stripping women of the right to vote in any elections other than for
Representatives in Congress, Senators, and the President. But we’ve already got enough on our plates,
so, to quote many a Supreme Court decision, I’ll leave that for another day.)
I’m going to
use Pennsylvania as my exemplar, but the same sort of things happened in a
number of States and Commonwealths.
The current
statutes in the Commonwealth of Pennsylvania, enacted by the General Assembly and
properly signed into law by the Governor, have two provisions that got in the Democrats’
way.
First, to
vote by absentee ballot, one must certify that he or she will not be present in
his or her municipality on election day due to attendance at college in another
locale, vacation or work in another locale, physical disability that prevents
them from going to their polling place, service in the Armed Forces, or
conflicts with celebration of a religious holiday.
Act 77 of
2019 was a bi-partisan statute and the first major overhaul of Pennsylvania
election law in some 80 years. It added
the right to vote up to 50 days before the scheduled election, got rid of the
need to give a reason for seeking to do so, and provided that mail-in and absentee
ballots must be received by the appropriate official by 8:00 pm on election
day. The provision in law that forbade
canvassing (opening and beginning to count absentee and mail-in ballots) could
not begin until 7:00 am on election was not changed.
But then
came 2020 and the pandemic. Afraid that
too many people would choose to vote by absentee ballot or mail-in ballot, the
Governor, a Democrat and the minorities in the House and Senate of the General
Assembly, sought to further amend the law to allow canvassing to begin 3 days
before election day. That provision never made it to the Governor’s desk
because he refused to compromise with respect to other provisions proposed by
the majority.
Instead, the Secretary of the Commonwealth went to the Pennsylvania Supreme Court which approved her unilateral action establishing an emergency extension of the deadline for receipt of absentee and mail-in ballots to three days after election day. Why bother with the legislature just because the US Constitution says something we don't like.
The
extension, which is effectively an amendment of the existing law, was made by
judicial fiat. The US Constitution clearly
provides that it is the legislature of a State or Commonwealth that enacts such
deadlines. It does not say that “if the
legislature declines to enact changes that the Governor, the Supreme Court of a
State, a party committee, or the bar-tender down at Gilhooley’s prefer
differently, then all bets are off.”
The US Supreme Court split 4-4 on whether that act of judicial fiat was appropriate. The Court has left open for another day the question of whether some agency other than a State legislature may simply ignore the Constitution. In the 2018 North Carolina election, of a Representative to Congress, the Democrats were beside themselves when an individual collected ballots from absentee voters and delivered them to the appropriate official, expressing their fears that the ballots could have been tampered with. They have had no such concerns in the 2020 presidential election. The new election that they demanded and received in North Carolina is suddenly unnecessary in one they think they won.
And that’s
OK. Sooner than anyone may expect, the
shoe may be on the other foot. Can anyone spell Harry Reid and filibuster?
In this
case, I am certain that Mr Biden won and I think the US Supreme Court is, too. So, in the immortal words of that great
Constitutional scholar, Scarlett O’Hara, they will “think about that tomorrow.”
The problem I have is that even if the unconstitutional procedures employed in, e.g., Pennsylvania and other States, did not change the outcome, a “little unconstitutional,” like “a little pregnant,” is ultimately unconstitutional and pregnant. And the next time, it may be twins!
In the
meantime, Donald Trump may “know” he was re-elected, the Pennsylvania General
Assembly may “know” he was re-elected, and even Joe Biden may “know” President
Trump was re-elected, but the world saw the media declare Mr. Biden to be the
next President, so he’s President.
Play Ball!
