Can There be a Re-do of the Election?


Armstrong Economics Blog/Politics Re-Posted Dec 11, 2020 by Martin Armstrong

There is an interesting question that seems never to have been answered. Back in 2016, the Democrats alleged based upon mere allegations that Hillary made for political reasons, that there was Russian interference in the 2016 presidential election so she really won. Everyone has tried to reject that because it really taints both sides of the aisle. There was never any hard evidence of that whichever came to light despite the countless amount of money spent on the Mueller investigation. In a court of law, Hillary should have reimbursed the government for all of those costs.

Nonetheless, those allegations raised the question: What if such evidence did come to light? Would that have justified removing Trump from office AFTER his inauguration had he colluded with the Russians to defeat Hillary? This sparked legal discussions behind the curtain would such evidence invalidate an election? Perhaps what goes around comes around. Those questions are still there with the extensive evidence of voter fraud surfacing this time around in 2020. Of course, Biden did not direct people to vote on behalf of dead people. That has been going on for decades. But what if Dominion Voting Systems, which only donated to Democrats, turns out that they did pay bribes in Georgia to get their system in the state, and was it manipulated?

There is NO LAW that would really invalidate even a fraudulent election. The laws and processes around national elections are highly inadequate and they clearly violate the Equal Protection of the Law and Due Process because every state makes its own rules which is inconsistent and can adversely impact the rights of other people in the other 49 states.

State and local laws have emerged over time in a very arbitrary way. The Constitution itself focuses more on ensuring stability than on administering elections. Consequently, there’s no absolute clear procedure for how to handle questions of fraud after the fact. If Biden is sworn in, there does not appear to be any way to actually remove him. The Impeachment Clause refers to his behavior and that would necessitate proving Biden himself directed the fraud or ordered someone to do it which is not likely.

The office of the President in the United States is different from parliamentary government systems for it combines the duties of a head of state with duties of a head of government in contrast where these are separated duties often divided between the president and a prime minister. In the UK, the monarch, currently Queen Elizabeth II, is the head of state while the Prime Minister is the head of government where there reside the executive powers.

The Constitution gives the president the power to lead the executive branch — the responsibility to “take care” that the laws are faithfully executed — and places that person in charge of the military (although Congress retains the power to declare war). Therefore, removing the monarch meant that the President would also be the Head of State. Hence, it is the President who would meet with the monarch.

Under the original Articles of Confederation, there was no president, which created confusion for there was no person in charge of enforcing the laws. Thus, it was George Washington who dealt with the Whiskey Rebellion. Therefore, the Impeachment Clause: “Treason, Bribery, or other high Crimes and Misdemeanors” was worded in such a way that if Biden bribed people to get into office, that would be ground to remove him. Again, that is not likely.

There is a serious question of how can a president endorse the Marxist philosophy of progressive taxation while they are to represent the nation and not just a few states or population centers. Selecting such a person through a direct election was out of the question back then. It was difficult for many of the founding fathers to imagine a national election, or that attempting one would achieve the intended goals. This is to some extent being talked about behind the curtain that the President should be selected by the Congress and not the people.

The framers, however, gave the Electoral College broad discretion to resolve disputes as it saw fit. The text of the Constitution states that an election is legitimate ONLY when the Electoral College declares the winner. I find it so strange that Biden has the audacity to appear on a stage declaring he is the President-Elect and has some Office of the President-Elect when that is just not the case. There is no “president-elect” until the Electoral College so declares – not CNN, Washington Post, or the New York Times. This is creating the image that it was a rigged election and they are desperate to pretend they were elected selling that idea when legally there is no such office of the president-elect.

The Constitution does not have any process for a do-over. Interestingly, the judiciary does have the power to order new elections for offices but never in the case if a president. Such decrees have come in the face of a proven case of fraud or error or gerrymandering.  In 2019, North Carolina courts ordered the legislature to draw fairer election districts, holding out the potential for voters — not lawmakers — to decide which party would control the General Assembly.  A Senate election was once redone in New Hampshire because it was too close to determine even with multiple recounts. So, there is some precedent that in the face of fraud or elections to be too close to count, the Judiciary has stepped in.

When we look at a presidential election, whether a re-do would be constitutionally be allowed is a much more complicated matter. The language in Article II of the Constitution prevents holding a presidential election again, thus putting it beyond the power of the courts to order a re-do. On the other hand, there is legal precedent for a presidential re-vote if there were flaws in the process. One instance in which this question arose was the “butterfly ballot” from the 2000 election, which may have caused some voters to choose Pat Buchanan when they meant to vote for Al Gore in Palm Beach County, Florida.

While the question was not reached in the 2000 election in the Supreme Court Bush v Gore 531 U.S. 98 (2000), it did raise the equal protection problem with different election procedures. The court held Per Curiam:Despite violating the Fourteenth Amendment by using disparate vote-counting procedures in different counties, Florida did not need to complete a recount in the 2000 presidential election because it could not be accomplished in a constitutionally valid way within the time limit set by federal law for resolving these controversies.There were indications that the Court recognized the need for nationwide electoral reform under Due Process and the Equal Protection Clause. How states do their own elections do not impact other states. However, election anyone federally impacts the rights of everyone. Looking at the lower courts, at least one federal court has suggested that the courts could order a new election. In 1976, an Eastern District Court in New York heard a case, Donohue v. Board of Elections of State of NY, 435 F. Supp. 957 (E.D.N.Y. 1976), where it was alleged that voter fraud in several urban locations took place not unlike what we see right now. In that decision, the court maintained that federal courts had a role to play in ensuring free and fair presidential elections. It held:

“It is difficult to imagine a more damaging blow to public confidence in the electoral process than the election of a President whose margin of victory was provided by fraudulent registration or voting, ballot-stuffing or other illegal means.”

Interestingly, the court didn’t find sufficient evidence that voter fraud had altered the outcome, or even occurred at all. Still, experts disagree about whether courts can order presidential elections to be held again. If there is a violation of rules that would change the election outcome, then the courts would be compelled to act and federally this is why Texas is suing Pennsylvania. Now 17 other states are joining Texas v Pennsylvania. What Pennsylvania and Georgia for that matter do to try to prevent recounts impacts the Equal Protection of the Law and Due Process rights of everyone else in the entire country.

STATES VIOLATE EVERYONE’S CIVIL RIGHTS

Within the Legal Code Title 18, Section 241, it has been an important statutory tool in election crime prosecutions. It has long been held to apply only to schemes to corrupt elections for federal office. It has been applied to stuffing a ballot box with forged ballots, United States v. Saylor, 322 U.S. 385 (1944); United States v. Mosley, 238 U.S. 383 (1915) as well as preventing the official count of ballots in primary elections, United States v. Classic, 313 U.S. 299 (1941), which may come in handy in this election. This means private suites can be filed claiming that interfering with the ballots is a civil rights violation to all in the country.

Destroying voter registration applications is also applicable (United States v. Haynes, Nos. 91-5979, 91-6076, 1992 WL 296782, at *1 (6th Cir. Oct. 15, 1992)), as well as destroying ballots (United States v. Townsley, 843 F.2d 1070, 1073–75 (8th Cir. 1988)).

Anyone who exploits the infirmities of elderly or handicapped people by casting absentee ballots in their names is also a violation of civil rights, United States v. Morado, 454 F.2d 167, 171 (5th Cir. 1972), just as anyone who illegally register voters and cast absentee ballots in their names, United States v. Weston, 417 F.2d 181, 182–85 (4th Cir. 1969).

Anyone who threatens injury, threaten, or intimidate a voter in the exercise of his right to vote is also a serious actionable issue under this statute, Fields v. United States, 228 F.2d 544 (4th
Cir. 1955). This even extends to someone who impersonates qualified voters, Crolich v. United States, 196 F.2d 879, 879 (5th Cir. 1952).

CONTESTED PRESIDENTIAL ELECTIONS

There have been a number of presidential elections that have been contested. The 1800 election ended in an Electoral College tie. At the time, there were discussions that perhaps they should holding a new election. Then there was the notorious 1824 election that was decided through what some called by Andrew Jackson a “corrupt bargain” among elites. The previous few years had witnessed the Federalist Party collapsed which had dominated from the outset. This left the Democratic-Republican Party, which splintered as four separate candidates sought the presidency. Nobody won the popular vote nor the electoral vote. Thus, it became Congress’s decision which is the strategy this time. Jackson had won more electoral votes than any other single candidate and alleged that Henry Clay, who served as Speaker of the House of Representatives at the time, had convinced the House to elect Adams. The accusations became more believable when Adams appointed Clay as Secretary of State. There was no evidence of such a deal but the allegations created the image of the defender of the elite against the interests of the common man.

The election of 1876 was also contested with allegations of vote suppression in several Southern states. It was a political conflict after the Civil War. A Democratic candidate had emerged with the lead in the popular vote. However, 19 electoral votes from four states were in dispute. In that case, Congress was convened to settle the election. Rutherford B. Hayes was handed the presidency despite the fact that he had lost the popular vote.

Most people do not know by the 1960 election of John F. Kennedy’s razor-thin margin, was also hotly debated while the honesty of the votes in Texas and Illinois were in question but Richard Nixon’s decision not to challenge the results avoided the dispute.

Disputed elections have often seriously undermined a presidency, as it did with John Quincy Adams, Rutherford B. Hayes, and Donald Trump. The 2000 election left a bad taste in many people’s mouths. The hostility of the Democrats against Trump was just astonishing. T have Nancy Pelosi tear up the president’s state of the union speech on national television was an insult to the entire country. That is prescribed by the Constitution that the president must deliver such a speech. Today, politics resembles more of a war zone than governing the nation.

Historically, once the Electoral College votes and declares a winner, the case for questioning a presidential election or gauging which side really won becomes a lot more difficult. Of course, the Constitution does not prescribe any mechanism for undoing the results of an election other than impeachment. That process, however, is focused on individual wrongdoing or an incapacity, not electoral irregularities. In that sense, even if collusion revelations did lead to Biden’s impeachment and removal from office, the process would have to deal with the question of whether his election had been legitimate in the first place. The only other possibility is an impeachment over selling influence to Ukraine and China if that could be proven.

The Constitution never addressed any review process for reviewing elections. This is also because the people never voted for George Washington – the Electoral College did. Between 1820–1830, as states joined the union they create their own state constitutions outlining who is allowed to vote. Eligible voters are mostly white males who own property as it was in Roman and Greek times assuming they had something at stake. A small number of free black men were allowed to vote but no women either white or black.

The larger issue concerns the structures established by the Constitution clearly place the election process in the hands of the Electoral College which was more concerned about allowing the majority of states to decide the national party system. However, the very text of our Constitution has never been changed and it does not reflect the modern system of allowing the people to vote. The states have adopted their own rules which are inconsistent nationally. All but two states allocate all electors to the winner, but the electors were not bound to even follow that. The Electoral College remains a heated topic at times when the vote does not align with the popular vote. When it comes to attaining the position of president with allegations of fraud if the Supreme Court fails to decide the law claiming discretion under the Judiciary Act of 1925 which in itself is unconstitutional since the oath of office declared they are to uphold the constitution – not on a discretionary basis if they feel like it that day.

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