Levin: On January 6, we learn whether our Constitution will hold
And whether congressional Republicans care
December 30, 2020
January 6 is the day we learn whether our Constitution will hold and whether congressional Republicans care.
The 2020 presidential election was, in several targeted battleground states, an unconstitutional electoral exercise. Even putting aside evidence of significant fraud, virtually none of which received a hearing by our courts, events leading up to and including the November national election constituted a radical and grave departure from the federal electoral system adopted by the framers of the Constitution and the state ratification conventions. Now, let's be clear: None of this matters to the Democrat Party, since it and its surrogates perpetrated these unconstitutional acts, as I shall soon explain. Nor does it matter to the media, which is utterly illiterate on the subject and unequivocally supports the supposed outcome in any event. But it should be of great moment and concern to the people of this country and especially to congressional Republicans in both Houses, for if the latter do not at least confront and challenge this lawlessness on January 6, when Congress meets to count the electors, it will be the GOP's undoing and, simultaneously, the undoing of our presidential electoral system. Ultimately, it will be the people of the United States who love our republic who will be the losers.
Win, lose, or draw, on January 6, the Republicans must not act as if "the people have spoken" and be cowered into passivity or worse, such as joining the Democrat Party and media hecklers, by insisting that they are part of a lawless party seeking to "reverse the results of the election." Too many Republicans have already buckled, including the Senate Republican leader, Mitch McConnell, Sen. John Thune, and Rep. Adam Kinzinger. No doubt others who are unreliable and cowardly when facing the organized mob will follow. But let us not be judged by those who have intentionally and strategically manipulated our politics and the law to undermine our constitutional order. It is they who must be condemned.
Specifically, Article II, Section 1, Clause 2 of the federal Constitution could not be more explicit. It states, in pertinent part: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress ..." This language was purposeful. During the Constitutional Convention, there were various proposals suggested for electing a president. Should the president be directly elected by the people? That proposal was rejected out of concern that such a purely democratic process could be hijacked by a temporary majority. Should the president be chosen in the first instance from within the national legislature? That proposal was also rejected on grounds of separation of powers. Should the judiciary play a role in the selection of the president? That idea was dispensed with as being the most objectionable, as judges were to be the least political of all public officials. The framers deliberatively and with much thought created the Electoral College process, in which the people and their elected legislatures — both state and national — would play important roles. But the electoral process rested first and foremost on the state legislatures directing how the electors would be chosen. The reason: While rejecting the direct election of a president, the framers concluded that the state legislatures were closest to the people in their respective states and would be the best representatives of their interests. At no time did the framers even raise the possibility that governors, attorneys general, secretaries of state, election boards, administrators, etc., would play any significant role in the electoral process. Indeed, certain of those offices did not even exist. Moreover, as I said, the courts were rejected out of hand. Thus, such an important power was to be exercised exclusively by the state legislatures.
After the 2016 election, the Democrat Party, its various surrogate groups, and eventually the Biden campaign unleashed hundreds of lawsuits and an unrelenting lobbying campaign in key states that had previously been won by President Trump, taking unconstitutional measures intended to stop President Trump from winning these states in the 2020 election, thereby literally undoing this critical constitutional provision. What had been carefully crafted at the Constitutional Convention and clearly spelled out in the Constitution was the main obstacle to defeating President Trump and winning virtually all future presidential elections. The problem for the Democrats was that in several of these battleground states, the Republicans controlled the legislatures, while the Democrats controlled state executive offices. The Constitution was not on their side. Therefore, they used the two branches of government that were to have no role in directing the appointment of electors to eviscerate the role of the Republican legislatures.
In Pennsylvania, considered the battleground of the battleground states, the Democrat governor, attorney general, and secretary of state made and enforced multiple changes to the state's voting procedures, all of which were intended to assist the Democrats and Biden. The Pennsylvania Supreme Court, whose seven justices are elected, has a 5-2 Democrat majority. (In 2018, there was a big push by the Democrat Party to fill three of the seats with Democrats, and it succeeded.) Just months before the general election, that court rewrote the state election laws to eliminate signature requirements or signature matching, eliminate postal markings that were intended to ensure votes were timely, and extended the counting of mail-in ballots to Friday at 5:00 p.m. (state law had a hard date and time — election day on Tuesday, which ended at 8:00 p.m. ET), thereby fundamentally altering Pennsylvania's election laws and nullifying the federal constitutional role of the Republican legislature.
In Michigan, among other things, the Democrat secretary of state unilaterally changed the state's election laws with respect to absentee ballot applications and signature verification. Indeed, she sent unsolicited absentee ballot applications by mail prior to the primary and general elections. State law required would-be voters to request such ballots. She intentionally circumvented the Republican state legislature and violated the federal Constitution by issuing over 7 million unsolicited ballots. Furthermore, a court of claims judge, appointed by a Democrat, ordered clerks to accept ballots postmarked by Nov. 2 and received within 14 days of the election, the deadline for results to be certified. The ballots would be counted as provisional ballots. The state legislature had no role in these changes.
In Wisconsin, the Elections Commission and local Democrat officials in the state's largest cities, including Milwaukee and Madison, changed the state's election laws. Among other things, they placed hundreds of unmanned drop boxes in strategic locations in direct violation of state law. Not surprisingly, the locations were intended to be most convenient to Democrat voters. In addition, they told would-be voters how to avoid security measures like signature verification and photo ID requirements. These bureaucrats and local officials bypassed the Republican legislature in altering state election procedures.
In Georgia, the secretary of state is a Republican. Regardless, as explained in the Texas lawsuit brought against Georgia and the three other states mentioned above, "on March 6, 2020, in Democratic Party of Georgia v. Raffensperger, Georgia's Secretary of State entered a Compromise Settlement Agreement and Release with the Democratic Party of Georgia to materially change the statutory requirements for reviewing signatures on absentee ballot envelopes to confirm the voter's identity by making it far more difficult to challenge defective signatures beyond the 22 express mandatory procedures set forth at GA. CODE § 21-2-386(a)(1)(B). 71. Among other things, before a ballot could be rejected, the Settlement required a registrar who found a defective signature to now seek a review by two other registrars, and only if a majority of the registrars agreed that the signature was defective could the ballot be rejected but not before all three registrars' names were written on the ballot envelope along with the reason for the rejection. These cumbersome procedures are in direct conflict with Georgia's statutory requirements, as is the Settlement's requirement that notice be provided by telephone (i.e., not in writing) if a telephone number is available. Finally, the Settlement purports to require State election officials to consider issuing guidance and training materials drafted by an expert retained by the Democratic Party of Georgia." Georgia's Republican legislature had no role in these electoral changes resulting from consent decree.
Consequently, in each of these four battleground states — and there were others — whether through executive fiats or litigation, key, if not core, aspects of state election laws were fundamentally altered in contravention of the explicit power granted to the state legislatures and, therefore, in violation of the federal Constitution and the process set forth for directing the selection of electors. And this is before we even get to the issue of voter fraud. That said, in many instances, ballots that would have been rejected or, if counted, evidence of fraud, were now said to be legal — not by state legislatures but by those who unilaterally changed the election laws.
The United States Supreme Court had an opportunity before the election, and in this general election cycle, to make clear to the states that they must comply with the plain language of Article II, Section 1, Clause 2 of the Constitution. Indeed, when a federal district judge in Michigan altered that state's election laws, a closely divided U.S. Supreme Court overturned his order. Justice Gorsuch pointed out that the state legislature writes election laws. However, when a case was brought to the Court involving the Pennsylvania Supreme Court's interference in state election laws, the U.S. Supreme Court was paralyzed. Chief Justice Roberts attempted to distinguish between federal and state courts, which is irrelevant; in another instance, Justice Alito ordered the Pennsylvania secretary of state, not once but twice, to segregate certain mail-in ballots, but nothing came of it. A court divided against itself cannot stand, to paraphrase Abraham Lincoln. Its failure to enforce the Constitution (and by that I don't mean make law or intervene in legitimate state election decisions) has contributed mightily to our current plight.
Despite what has been reported and repeated, the president is not actually or officially chosen on Election Day. The president is not chosen upon the certification of electors by the states. The process ends in Congress. And on Jan. 6, Congress — following both the Constitution and its own procedural law — makes the final decision on who is to be president and vice president of the United States. Of course, in every election in my lifetime, up to now, while there have been some controversies, the process has proceeded without much attention. But this time is different, as it must be. The Democrat Party, its surrogates, and eventually the Biden campaign instituted an unprecedented legal and lobbying campaign, mostly under the radar, as it was not well covered by the usual media outlets, to undermine our Constitution, the Republican state legislatures, and the Trump re-election campaign, in favor of Biden. In other words, the Constitution's electoral process for choosing electors and ultimately the president and vice president was systematically and strategically attacked. It is now left to Congress, or at least the Republicans in Congress, to confront this. The Democrat Party has done severe damage to the nation's electoral system, to the point where the state legislatures are now in the position of having the least input on the manner in which elections are held and federal electors are chosen — the complete opposite of what the Constitution compels and the framers unequivocally intended. And the legislatures in Pennsylvania, Michigan, Wisconsin, and Georgia have, in a variety of ways, objected to what's occurred, underscoring the seriousness of the problem.
If this outcome is allowed to stand without a fight on Jan. 6, it is difficult to see how this can be fixed. The Democrats will view this as a sure sign that they are free to do more and even worse. It will become extremely difficult for Republicans to win nationwide elections (something the ten or so GOP senators who wish to run for president should keep in mind). It will also become increasingly difficult to win a Republican majority in the Senate. And the 2020 constitutional violations will be used as a baseline for even more unconstitutional manipulations of the electoral system. The Democrat Party's goal is to turn the nation's electoral system into the one-party rule that exists in virtually all blue states, especially California with its supermajorities.
As I said earlier, win, lose, or draw, the congressional Republicans must act. It is the Democrats and their media who seek to undo election results by undoing the election system. Look at what they did in 2016 (need I remind everyone of the relentless assault against candidate and then President Trump?) and now 2020. And they have every intention, as they have boldly proclaimed, to further undermine our constitutional system should they win the Senate majority in a few days — by eliminating the filibuster and any ability to slow their radical legislative agenda; packing the Supreme Court with left-wing ideologues; and packing the Senate with four more Democrats from Puerto Rico and D.C. And that's just for starters. This is the same party that did not care that it had no hope of removing President Trump in the Senate, but impeached him anyway — on the most specious of grounds. They are playing for keeps and destroying our constitutional system, for which they have little regard. I am well aware that it takes a majority of both Houses to send the election of the president to the House of Representatives, where each delegation gets one vote, an extremely difficult hurdle.
Nonetheless, it is not asking too much for the Republicans to uphold the United States Constitution — which they all took an oath to do — and to fight to preserve and protect the plain words set forth in Article II. They must make the case to and on behalf of the American people. And they must make it clear to the Democrats that we, the people, who believe in this Republic, will not roll over! Now, let's see how many statesmen there are among Republican members of Congress.
Mark Levin is the host of LevinTV on BlazeTV.