Peacefully and proactively dealing with election fraud

Earlier in the week, I asked the question: What if Proof of 2020 Presidential Election Fraud Develops? I mentioned several remedies that have been widely talked about from impeachment to a Pentagon coup to rioting in the streets.

None is an ideal solution. The first wouldn’t correct the problem, the second would turn the United States into a third-world banana republic and the last would bring about a modern version of the bloody chaos that characterized post-revolutionary France. An ideal solution would reverse Biden’s inauguration and inaugurate Donald Trump as the rightful president -- and do so while maintaining our Constitutional Republic.

There is another option that theoretically could do that, one based on concepts familiar to Americans, thanks to shows from Perry Mason to Law & Order: “Fraud vitiates everything” and “fruit of the poison tree.”

In 1878, in United States v. Throckmorton, the Supreme Court held that “There is no question of the general doctrine that fraud vitiates the most solemn contracts, documents, and even judgments.” In English, fraud invalidates contracts – and an election is nothing if not a contract. Everyone knows if you sign a contract based on fraudulent information, that contract is invalid. That leads to “void ab initio“ which means that fraud from the beginning taints everything resulting from it.

The other doctrine is one we’ve seen TV lawyers use to throw out evidence against their client because it was obtained illegally. The evidence is inadmissible as the “Fruit of a poison tree.” The Supreme Court, in 1939, explained this in Nardone v. United States which holds that, if a tree is poisonous, so too is its fruit. (Hat tip to Andrea Widburg, Donna Palen, and Al Simon)

This means that, if fraud is shown, the election is invalid. Biden is not president and every action his administration took is void as if it never happened. Of course, that’s never been done in a presidential election but it’s happened a handful of times in lower elections.

The fly in the ointment is that this requires a court – inevitably, the Supreme Court -- to rule that the election was indeed fraudulent. Given the Supreme Court’s general (but very selective) reluctance to wade into political areas – particularly highly volatile ones – and this particular Court’s demonstrated cowardice, it’s unlikely that it would consider the matter.

Which, I think, leaves us with this: If the Constitution cannot remedy acts bastardizing it, something new must be done. As the Founding Fathers did in 1776, it may be necessary to rewrite the playbook. That rewritten playbook, while not a new Declaration of Independence, is a tentative Pact of Secession.

This pact would be among the states whose rightful votes should have gone to Donald Trump. These states should make it clear that fraud infringed on their citizen’s right to a constitutional federal government. If Congress does not remedy the situation, they will in unison secede. This Pact would not literally be secession. It would merely announce a proposed action that Congress could avoid by rectifying the 2020 election’s demonstrated constitutional deficits.

If void ab initio fails, there’s no blueprint to correct the 2020 election because Congress, the states, and the Supreme Court allowed an unconstitutional inauguration to occur in the first place. Nonetheless, the theft of the highest office in the land simply cannot stand. As New York, California, and other Democrat states are seeing in their streets today, if you allow thieves to steal or thugs to harass and assault with impunity, you get more of each.

The same holds true with election fraud, and the subsequent usurpation of the apparatus of government and the coercive powers that come with it. If this theft is allowed to stand, then no American can go forward with confidence in the nation’s elections and the system based on them.

Once again, the Constitution is nothing more than a piece of paper. It is the citizens’ loyalty to that Constitution and the system built upon it that makes it work. After all, the old Soviet Union, Cuba, China, and most other dictatorships regularly have constitutions that promise freedoms and rights to their citizens that the governments ignore. Words on a paper mean nothing if the government is not bound by them and the citizens have no confidence in them.

This is, as the British might say, a bloody mess. Indeed, the last time secession played a pivotal role in American history that’s exactly what we got. However, we can avoid that. Spurred by a Pact of Secession, Congress will have an opportunity, in concert with the states themselves, to address the demonstrated fraud and ensure, in a cool, logical, and peaceful manner, that the 2020 election is never repeated.

There is a peaceful way forward but Congress must understand that, once Americans see there was a fire under the smoke from November 4th, they will not sit idly by and watch their Constitution shredded. Too many have paid too high a price so that Americans could live under the umbrella of liberty it provides to allow such a transgression to prevail.

IMAGE: Picpedia CC BY-SA 3.0 license.

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