It's Still Timely And Necessary To Get The 2020 Election Right
A solid majority of Americans know that the 2020 election was fraudulent. That’s a big problem for a country with a representative government, one in which the leaders are supposed to represent the will of the people. We’re a nation of laws ostensibly flowing from a Constitution that sets out explicit limitations on the federal government’s powers and protects a variety of citizens’ rights upon which said government cannot infringe. To the degree that a significant majority of citizens feel that the leader of this government was not constitutionally elected, that’s a problem.
For all its importance, our Constitution is nothing more than a piece of paper. It doesn’t make laws. It doesn’t have an army. It’s not the police. It’s just words on paper. It functions because Americans have confidence in its words as the foundation for the laws of our country and the guideposts governing the actions of those who actually control the army and the police and write the laws.
When that confidence is shaken, society’s foundation is shaken. While the fraudulent election of 2020 is not the first example of that shaken confidence in government, it’s easily the most important. From the economic upheavals wrought by the Industrial Revolution to widespread hopelessness during the Depression to the perceived fecklessness during the Vietnam War and economic malaise of the 60s and 70s, confidence in government has been shaken before but never before has the government’s legitimacy been in widespread doubt.
That changed with the 2020 election. Americans watched as the fraud played out in real-time, right in front of them. With violent riots in the streets that went unrestrained in the months leading up to the election, with courts inexplicably ignoring countless unconstitutional changes to voting laws, and with the media and social media censoring true stories that harmed Democrat chances, it started to seem as if the scales were tipped to one side. On election night and during the following weeks it became clear that this was indeed the case.
When almost 60% of the American people feel as if the man who is both the leader of the country and the head of the federal government is illegitimate, what are they supposed to do?
There’s nothing to be done we’re told… Not true. The election can be overturned. Not that I imagine there’s sufficient internal fortitude among Republicans to do so but, ideally, they should make the attempt. But how?
The Constitution doesn’t address anything remotely close to reversing a fraudulently achieved election. That’s true, but then it also says nothing about the right to abortion, the government providing welfare payments to citizens (or non-citizens), government control of healthcare, the imposition of CAFÉ standards, or collective bargaining rules. Indeed, there is much that goes on in government that is not in the Constitution. In 1803, Thomas Jefferson worried that the Constitution did not give him the power to make the Louisiana Purchase, but today all or part of 15 states exist because of it.
Like John Marshall’s judicial review doctrine, which you won’t find anywhere in the Constitution, things don’t exist until they do. In this case, in states where fraud is proven or where voting laws were enacted unconstitutionally, the legislatures should withdraw their Electoral College votes and recast them based on accurate and lawful counting of the votes.
It’s true there’s no existing Constitutional mechanism to facilitate that remedy, and the likelihood of a Democrat-controlled Congress doing anything to further it is less likely than a healthy college student dying of COVID, but that doesn’t mean it shouldn’t be done. It should, and it should be driven by those states where fraud so clearly occurred and tipped the election; essentially ground zero for the coup: Georgia, Arizona, Wisconsin, Michigan, and Pennsylvania, all five of which have nominally GOP legislatures.
Image: Wikipedia 2020 Election results page (cropped), edited by Andrea Widburg.
Many will say that this is extra-constitutional, and that may indeed be true. But what is beyond debate is the fact that the 2020 election itself was extra-constitutional. The Constitution states that elections are to be run according to rules set by state legislatures. That didn’t happen across the country.
If one is going to have an election run beyond the explicit parameters of the Constitution, I’d prefer to have it hew as close as possible to what the document actually says, rather than what some hack Secretaries of State or uber partisan jurists say that it is. Our Founding Fathers gave the power to craft election rules to state legislatures and that is where it should reside.
Now, assuming that the legislatures of these five states—and others as they choose—take seriously their duty to address the fraud of the 2020 election, Congress will have a decision to make. Congresspeople can either engage with the states to address the issue or simply ignore them. Currently, there is zero chance of action, but after the 2022 midterms Congress will likely look different and the opportunity to address the issue can be revisited.
This may sound like spinning wheels, but it’s not. On the contrary, affirmatively excising the demons of the 2020 election should force all politicians or candidates to make their positions known. They either admit that the 2020 election was fraudulent and are willing to do something about it or they don’t, won’t, and should be primaried if GOP or defeated if Democrat. There can be no in between. If the flaws of 2020 are not admitted and addressed, then 2024 is gone before the campaign even begins, and almost every American understands that.
Why this matters is simple: The nation is changing, rapidly and not in a good or constitutional way. From vaccine mandates to CRT seemingly everywhere to locales providing COVID medicines based on race to transgender men competing in women’s sports to mayors and governors essentially giving their communities over to the homeless and violent criminals, America in 2022 is not one someone from even a decade ago would recognize. It’s changing, rapidly, and in most cases against the wishes of large majorities of the American population.
Importantly, though, we’re not a democracy, and the Constitution is built to rein in the passions of the majorities. It’s not a suicide pact. American citizens with confidence in their election system are willing to wait for the next election cycle to direct a change of course. Those same citizens, however, if they feel that the system is fraudulent and if they know the game is rigged against them, will find alternative means to stop the evisceration of the nation so many of them cherish. When the majority—and a growing majority, at that—of a population believe their leaders are illegitimate, bad things tend to happen.
Illegitimate regimes can stay in power for decades, but only with an army of stormtroopers and Gestapo to suppress a cowed population. The United States is not Germany in the early 1930s nor China today and Americans are not yet cowed. Indeed, they have a 1st Amendment, a 2nd Amendment, and a 250-year-old legacy of freedom most are loath to give up. This Democrat fascism will eventually come to an end. The question is how. The ideal solution is to be found at a ballot box, with all Americans confident their votes will be counted fairly. Let’s hope our leaders can find the courage to lead us down that path.