Bad Faith, Elections, and Election Officials

Whether through the genius of the Founders or through the beneficence of the Creator, there is, and always has been, a perfect solution to the question of legitimacy of a presidential election.

Note that the proper question is one of legitimacy. An election is legitimate when its results are credible manifestations of the popular will.

This has nothing really to do with what belongs to the criminal law. The question has nothing to do with whether an individual acted in a criminal manner.

Just to put that matter to rest. Certainly an individual may commit a crime related to an election. Certainly such an individual may be investigated, tried, and sentenced.

It is also irrelevant. Catching a bank robber does not mean the money will be returned. In the same way, catching a person breaking an election law will not affect an illegitimate election result. 

This is the false argument played upon by some. It’s been repeated ad nauseum, both in various court proceedings and elsewhere. And it is indeed true that if it were true, no election could ever be challenged.

The real question thus is legitimacy. If we cannot have confidence in an election result, it is illegitimate. See how criminality is largely irrelevant here?

For instance, if you knew your car could be blown up by use of a computer program, would you have confidence driving it? It’s not been blown up yet, and you don’t know if it will be. But one would imagine you’d lack confidence in it; and this is clearly not the usual sort of question posed to a judge.

Thus, a lack of confidence in the process can render the results illegitimate even in the absence of positive evidence of actual illegal results. This encompasses certain evidence being given, principally by expert witnesses, concerning the voting software used in this election being subject to manipulation. This is why even expert testimony showing the possibility of manipulation is real evidence  – evidence of illegitimacy due to lack of confidence. (There certainly also is evidence that in some cases votes were actually manipulated.)

That is one reason the best and most proper forum for a presidential election result to be challenged is the state legislatures. (The president’s attorney, Rudy Giuliani, has said the same thing (@ 2:24).)

The state legislatures can have public hearings; they can have review documents; they can interrogate public officials; they can issue subpoenas; they can have investigators corroborate witness testimony.

They also can craft solutions, such as re-tabulating results or by not counting this or that precinct. Or by simply ignoring illegitimate election results and appointing electors.

They certainly have the power to do so. As the Supreme Court has said (at B),

[I]n McPherson v. Blacker146 U. S. 1, 35 (1892), [we said] that the State legislature’s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by State legislatures in several States for many years after the Framing of our Constitution.  History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. … The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35 (“[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated”) [emph. added, ref. removed]

This should not be considered some tragic event. The state legislatures are as close to the people as can be; they are their elected representatives, and in their exercise of constitutionally granted power would be working to ensure the will of the people would be legitimately expressed.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        One can already hear the well-rehearsed cries of the deluded or dumb or devilish. “How can one do this?” “It’s disenfranchisement!”

There are at least three good replies to this. One, the solution to illegitimate election results is certainly not to ignore the illegitimacy. Secondly, where there is evidence of illegal votes or other irregularity, it is those who permitted this situation who disenfranchised legitimate voters. Thirdly, in the case of a presidential election, the power to vote for the presidential electors resides in the first place with the legislatures, and hence no one has been disenfranchised.

That is why the legislative assemblies of the various states are indeed the perfect place for election grievances to be heard and acted upon in relation to the present election – yes, as if they were courts of law, in a way, remembering that originally there was little difference between the two; only very recently has the British parliament’s upper chamber ceased to act also as that country’s final court of appeal.

And that is why in turn why it is disgusting that members of state legislatures claim powerlessness. We’ve seen it over and over in exchanges between state legislators and people giving testimony, and this written statement by the so-called “Republican” Speaker of the Arizona House is particularly repulsive: “[T]he Arizona Legislature simply couldn’t do what is being asked.”

That’s just playing pretend. Somehow a stolen election would, by this logic, need to be certified; no other choice. Hogwash.

Even the excuse that the legislatures are not in session is lame at best. Where were they when it was in session? But more strikingly, since it is the governor who generally calls a special session, and since the Constitution provides that the legislatures have plenary power regarding the electors, it is clear that the a session could be called by the legislature itself.

Still, one thing we can fairly admit is that the idea of refusing to certify a stolen election is not something the legislators are used to and therefore many might be naturally timorous. After all, they are used to the idea of having their responsibility farmed out to the (leftist deep) state (@ 15:46).

This may very well be the case even with state legislators of good faith. And this may very well be a stumbling block of considerable size. Yet, it is one thing to admit to fear and another to lie about the circumstances.

But there are some heroes left. Senator Ted Cruz is certainly one of them. He has offered to present oral arguments before the Supreme Court for the president’s legal team. (Cruz is no lightweight: he was Solicitor General of Texas and has argued before the U.S. Supreme Court before.)

Another hero is Pennsylvania state senator Doug Mastriano. Mastriano broke the log-jam: finally people were able to testify about the election fraud they had witnessed.

Of course, while on the subject of good faith, it is worth noting that none of this would be happening were it not for bad faith.

By bad faith, we do not mean the actual electoral chicanery. It is the monumental stonewalling with which absolutely valid concerns have been met. This has been the case from the get-go.

Persons of good faith would have agreed with the president’s election night press conference that things are weirdly off and indicative of fraud. The normal reaction would be, from the press and from government election officials of every rank and position, that the president’s concerns need to be addressed.

Did that happen?

The same bad-faith stonewalling is evident in regard to many of the court cases. The judge’s decision in the president’s lawsuit in Nevada to grant a motion to dismiss was so fantastically wrong that it must have been reached in bad faith. The president’s attorney, Rudy Giuliani, explains it well here (@ 1:12).

Even Giuliani, however, fails to note something even more startling: that there should have to be a court case at all.  There is no reasonable, good faith, answer to why any official would fight against evidence showing the election was not conducted legitimately.

Simply, Giuliani should not have had to bring a court case. In other words, none of this should be happening. None of it would be except for bad faith.

Yet everywhere election officials are fighting tooth and nail to maintain their pretend fantasy. The amount of evidence is so large and compelling that even a fraction of it should have made election officials themselves, if possessed of any good faith whatsoever, eager to treat it in a normal fashion.

The American mantra is that elections are fair. How is the bad faith of election officials fair?

Clearly, the bad faith of election officials in some few states is depriving the rest of us of our rights; indeed, our nation is under attack.

And as we established earlier, legitimacy of election results depends upon their credibility. Where is credibility when those charged with assuring legitimacy act in bad faith?

That is why it is an amazing thing that the great State of Texas has entered the fray, at the Supreme Court level, with exactly that same argument: that the bad faith of other states has deprived Texans of their rights.

We must hope they win. For all of us.

Tadas Klimas is a former FBI agent, awarded the National Intelligence Medal of Achievement (NIMA). He is also a former law professor and former Chief Legal Counsel to the Speaker of the Lithuanian parliament Prof. Vytautas Landsbergis.

Image credit: Pexels public domain