Do You See How Simple This Is?
Let’s pick up where we left off last week.
Looking ahead — beyond the 2020 presidential election — includes fully reviewing illegalities in the 2020 election, regardless of whether they changed the result, plus carefully and fairly restoring the rule of law to American elections, all with an eye toward preventing future illegalities no matter whom they’d benefit.
One step in such review and restoration can take place when the U.S. Supreme Court considers particular Pennsylvania law.
The high court may decide soon whether to hear two such challenges.
Neither can undo the 2020 election, yet each can help prevent 2020 illegalities from recurring in Pennsylvania and elsewhere.
The lead challenge, brought by the commonwealth’s Republican Party, is presented by Drs. John Gore and Alex Potopov of Washington, and Kathleen Gallagher and Russell Giancola of Pittsburgh.
A companion challenge, brought by Republican leaders of the Pennsylvania General Assembly, is presented by Drs. Jason Torchinsky, Jonathan Leinhard, Shawn Sheehy, and Dennis Polio, of Haymarket, Va.; Crystal Clark of Harrisburg; Jake Evans, Laurie Webb Daniel, and Matthew Friedlander of Atlanta; Zachary Wallen of Pittsburgh; and Douglas Chalmers Jr. of Washington.
The constitutional holding on the merits can be simple.
Readers of this column eight weeks ago will recall that under the Electors Clause, Article II, Section 1, Clause 2 of the U.S. Constitution, “Each State shall appoint, in such Manner as the Legislature may direct, a Number of Electors … .”
Thus, the power to appoint a state’s presidential electors belongs to state legislators of the state. Not the governor, other executive-branch officials, or judges.
Another clause similarly goes to congressional elections.
Under the Elections Clause, Article I, Section 4, Clause 1 of the U.S. Constitution, “The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law alter such Regulations, except as to the Places of choosing Senators.”
Neither the governor, other executive-branch officials, nor judges have this power either.
What went awry in Pennsylvania? For one thing, persons other than Pennsylvania state legislators changed how Pennsylvania appoints presidential electors. And persons other than Pennsylvania state legislators or Congress changed how Pennsylvania elects U.S. senators and representatives.
So under the Electors Clause and the Elections Clause, Pennsylvania law as changed is unconstitutional.
Do you see how simple this is? This isn’t rocket science, and no one needs to turn it into rocket science.
The errant persons in Pennsylvania happen to be four of the seven Pennsylvania Supreme Court justices. Yet that’s beyond the point.
What did they do? They extended the time, and otherwise loosened the rules, for voting. Yet that’s beyond the point.
Why is this change particularly significant? It involves absentee voting, a significant source of fraud. Yet that’s also beyond the point.
The point is that the wrong persons changed this law. So as changed, it’s unconstitutional.
Readers of this column six weeks ago will recall that this law – even without these changes – violates Pennsylvania’s Constitution, and by extension, the U.S. Constitution.
However, the challengers haven’t raised that issue.
That’s also significant.
Suppose they raised, and prevailed solely on, that issue. Such a holding, with its ultimate roots in Pennsylvania’s Constitution, may have little nationwide impact.
By contrast, a holding based on the Electors Clause and the Elections Clause not only will invalidate Pennsylvania law but also can undermine changes by the wrong persons to other states’ presidential- and congressional-election laws.
Such a holding can help restore the rule of law to elections in Pennsylvania and elsewhere.
But there’s more.
The challengers explain that the part of the law they challenge isn’t severable from the rest. So if the high court strikes down the part they challenge, the whole law is invalid.
The whole law, not just the part they challenge, led to significant illegalities in Pennsylvania in 2020. This is documented in sources such as Texas’s filings in the high court shortly after Election Day.
Although the 2020 election is over, invalidating the whole law will help prevent future illegalities, no matter whom they’d benefit.
Dr. Randy Elf suggests this is one of those Supreme Court opinions that will be better if it’s simple, not complicated.
COPYRIGHT ç 2021 BY RANDY ELF