No, it's not time for a ‘Congressional Hail Mary’

As the 2020 election, with all of its fraud, winds towards its final legal conclusion in a few weeks, many people are now speculating about a “Congressional ‘Hail Mary Pass,’” in which Vice-President Mike Pence or the House and the Senate finally “make things right” by overruling or ignoring the conflicting actions of the five states in which the fraud occurred.  As President of the Senate, Pence could decide not to count certain states’ votes.  Senators and Representatives could contest them.  In one scenario, the final selection devolves to the House and to the Senate.

Yes, all of this is true.  But I do not believe that this is what we should now allow to happen.

The “emergency” provisions of Federal Law and the Constitution were not intended to give any legislature a way to avoid a politically unpleasant decision.  Neither the Congress nor the President of the Senate should be expected to second-guess what any state intends to do.  The final approval of the results in Congress should be a mere formality.

The Constitution of the United States places the federal decision of choosing electors specifically and exclusively in the hands of one entity: “the Legislatures thereof.” (Exactly as it originally did for the US Senate.)  Established law has concluded that this is a “plenary” decision:  that they can select absolutely anyone they like, with no power of judicial review being vested in anyone else.  Their decision has only one requirement:  they must make “one” choice.  Not two.

After carefully presenting each state legislature with all of the evidence of fraud that has now been accumulated in their state, we should all demand that these legislatures convene themselves, sua sponte, and to cast their vote for “one” slate of electors, no matter who their “one” chosen candidate might be.  They could choose Joe, or Trump, or Mickey Mouse, or the barista of their favorite coffee shop, or any of the staff members who empty their wastebaskets each night.  Literally, anyone.  In this way, they can reverse the fraud, or ratify it, or they can ignore it completely.  But, do not allow any of them to “punt the football” to anyone, anywhere, else.

I have no sympathy.  Each of these states’ predicaments is entirely of their own making.  All summer long, they watched their carefully enacted laws being set aside without authority, and they did nothing.  Other states followed their rules; some willingly did not.  We should now demand that they confront the final consequences of their actions and make for their state the “one” decision that they – and, they alone – are constitutionally required to make.  This cross is theirs alone to bear.

Public domain graphic via