What the Supreme Court Should Say About the 2020 Election
Americans who dabble outside the mainstream media are horrified by shocking claims of election fraud in 2020. Even more horrifying are courts that refuse to address the merits of these claims -- hiding behind baffling legal terms like laches, mootness, and standing. Here is a suggested Supreme Court opinion that would end the horror and preserve our constitutional Republic.
Per Curiam. We address several consolidated cases against various states and their officials (“Defendant States”) regarding the 2020 election. The cases make one basic claim -- the 2020 election in the Defendant States was rife with voting and tabulating irregularities, illegalities, and outright fraud (“election wrongdoing”) that uniformly favored one Presidential candidate. Plaintiffs claim this violated their constitutional right to a free and fair election.
Basic Principle: Free and Fair Elections
Our constitutional Republic is founded on the Declaration of Independence which states:
[A]ll men . . . are endowed by their creator with certain inalienable Rights…. [T]o secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. . . .” (Emphasis added.)
Consent is voting in a free and fair election. “Free” means no one is compelled or bribed to make a certain vote. “Fair” means proper election laws are followed so that the “governed” can believe in the result determined. There is no more important constitutional principle than a free and fair election.
Government: Who Does What
The American people have seen an avalanche of punditry telling them how our government works. Many believe the news media “calls” the Presidential election. Others think this Court is a mystical, all-powerful institution that can wave its judicial wand and make everything right. Neither is true.
The United States Constitution gives the state legislatures the power to determine their election laws. Of course, they may not violate other constitutional principles in enacting and implementing those laws.
When all legal ballots have been accurately counted, we have a free and fair election result that the state certifies. Chosen electors report that result to Congress and the president is elected. No one is elected President until that process is completed properly.
There are various remedies if an election is not free and fair -- recounts, contests, legislative proceedings, and generalized litigation are all options and all have been used here. However, the country cannot wait until these proceedings are resolved to elect a president. So, if no presidential candidate achieves the required number of electoral votes by December 14 after the election, a Committee of Congress decides the presidential election and the Senate decides the vice-presidential election.
This Court’s primary role in our government is to protect, defend, and interpret the Constitution. Since a free and fair election is constitutionally required to establish the “consent of the governed” and create a just government, it falls to this Court to make the ultimate determination on that issue.
The Constitutional Issue
This case presents the following constitutional question: Is a state’s vote certification or a state court’s judgment final and dispositive in the face of significant and credible claims of election wrongdoing?
First, automatically allowing state certification or adjudication to be final would nullify this Court’s primary duty to safeguard the constitutional standard of a free and fair election.
Second, state certification or adjudication can be an inherently political process. Although we do not suggest improper conduct by officials, there is ample opportunity for the appearance of partisanship. Since this Court is not subject to direct election, this problem is lessened.
So, neither a state’s certification nor adjudication of an election is dispositive where significant and credible claims of election wrongdoing exist. As to the 2020 presidential election, this leaves several subsidiary questions to resolve.
First, do Plaintiffs show significant and credible claims of election wrongdoing? By “credible” we mean is there a substantial likelihood that Plaintiffs can prove the election wrongdoing they allege?
Plaintiffs have submitted hundreds of sworn statements by citizens describing a pattern of election wrongdoing in Defendant States ranging from ballot stuffing, unexplained vote spikes, counting ballots multiple times, violation of state election laws, exclusion of observers to payment for votes. The affidavits are detailed and specific and relate first-hand accounts. The experts describe specific information and bases for their conclusions.
The evidence and argument submitted are credible. However, credibility does not suggest a finding of election wrongdoing. Those issues remain to be resolved.
Second, are the credible allegations of election wrongdoing “significant”? By “significant” we mean can those allegations, if proven, make a difference in the Presidential election of 2020. If not, the allegations do not raise a constitutional issue for this Court to address.
This is not to say that “insignificant” election wrongdoing should be ignored. No amount of election wrongdoing should be tolerated. It should be acted upon by appropriate state or federal authorities lest toleration leads to more unacceptable conduct.
Here, taken together, Plaintiffs’ arguments and evidence credibly put hundreds of thousands of votes at issue. More importantly, they credibly question sufficient votes in each Defendant State to affect the result of the 2020 election. The Court finds that the allegations and evidence are credible and significant in each Defendant State.
Having found that this case meets the high standard of showing credible and significant election wrongdoing, the question becomes what remedy is appropriate given the short time frame for selecting a president.
Ideally, the claims of election wrongdoing would be fully litigated to final judgment before the inauguration. All legal ballots in the Defendant States would then be counted and all illegal ballots discarded. The American people could feel sure that the next president was chosen in a free and fair election. The Constitution and our Republic would be secure. Clearly, given the scope of claims here, that result may not happen in the time allowed.
Some Plaintiffs urge that Defendant States’ legislatures choose the presidential electors.
Other Plaintiffs ask us to block certification in the Defendant States.
Defendant States suggest we dismiss this action and do nothing.
First, taking no action on a showing of credible and significant election wrongdoing would strike at the very foundations of our constitutional Republic. As noted, the justness of our government depends solely on the consent of the People. If election wrongdoing steals a Presidential election, there is no consent and no citizen can ever be confident of a future election. This harm will reverberate throughout the ages.
Second, returning the selection of electors to Defendant States’ legislatures does not carry out the central holding here. Credible and significant claims of election wrongdoing must be finally resolved on the merits including, where necessary, review by this Court. The fundamental importance of having free and fair elections demands this result.
Accordingly, the Court rules that the Defendant States are hereby enjoined from completing the certification of the results of the 2020 elections in their states until the election wrongdoing is finally adjudicated. None of the candidates involved in the 2020 election in those states can be sworn into office until that adjudication takes place.
As to the 2020 Presidential election, the Constitution provides a political, not judicial, mechanism described above to address the unfortunate situation presented by this case. If certified results do not allow any presidential candidate to achieve 270 electoral votes by the inauguration date, the President and Vice-President shall be elected by the procedures provided in the Constitution.