An unexpected ‘Paper Chase’ begins on January 6th – a rant

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On seeing the senator’s statement, I posted the following:

“So. The results of November’s Presidential Election, which so many have so carelessly been proclaiming to be a ‘settled issue’, a ‘sure thing’, is beginning to look somewhat less so. Surprise. Multiple Representatives, and now at least two Senators, are going to challenge it on January 6th. To be sure, that may not change a thing, or it may reverse it, and/or it may lead to complete chaos. I’ve said all along that I’ve absolutely no clue how a contested presidential election will turn out, but one thing I do know, those who’ve been leading so many to think it was ‘a done deal’, will bear more than a little responsibility for the intensity of what may follow from their surprise at learning that it never was. Happy New Year, 2020 + 1.”

Someone I know who is an accomplished and highly respected constitutional lawyer, has argued cases before the supreme court, and is one of the few who has actually won an election fraud cases, soon replied to my post, commenting that:

“This is false. There is no lawful, constitutional path by which Donald Trump can be declared the winner of the November election. So in that sense, the result of the election is indeed a settled issue. The question is whether a sufficient number of Republicans will choose to act unlawfully and unconstitutionally in order to nullify the result of the election. A distressing number of Republicans are lining up to do so. That they are willing to abandon the Constitution and the rule of law in hopes of preventing a Biden presidency (or perhaps just casting a pall of illegitimacy over Biden’s presidency) says horrible, horrible things about those engaged in this charade.”

Respectfully, he missed my point. When he states that “There is no lawful, constitutional path by which Donald Trump can be declared the winner of the November election.”, three points which spring to mind:

1. Whether or not Trump can be declared the winner of the election has never been my point, my point has always been – stated repeatedly and repeatedly ignored by those I’ve been arguing it with – that there is the potential in our laws for great turmoil ahead which should be acknowledged and discussed and debated, and it shouldn’t be pretended as if it’s a done deal with nothing but smooth sailing ahead into inauguration day.
2. “There is no lawful, constitutional path…” As accomplished as my friend is, Sen. Cruz, who has also argued cases before the Supreme Court, and served as solicitor general of Texas, is no slouch on the Constitution either, and he clearly has a different interpretation than my friend’s interpretation. It would be swell if they could argue this out in court, but guess what: If that ever happens, it will only come well after the actual incident which is now certain to take place, beginning on January 6th.
3. This is an active legislative and political process operating within the bounds of the constitution and some poorly defined laws written under it, and as the SCOTUS has never ruled on any part of it, differences of opinion on what is and is not lawful are going to be playing out in real time before us, beginning this week. Poorly written laws lead to differing interpretations of how to apply that law, and one of the purposes of the Supreme Court, under our Rule of Law, is to examine and render judgement on such actions – once that has happened, there will there begin to be a benchmark for saying which approach was, or wasn’t, found to be constitutional, but at this point in time, it’s all opinion and conjecture.

The laws that’ve been written to ‘fix’ our electoral process, are not clear laws, and no one reading them can be certain of having a clear understanding of what most other people will think they mean, and no one knows or can know how others in power will act upon these laws, or how still others will react to those actions, and no one can know for certain how events will play out this week, now that these laws actually have in fact been triggered. 

That much is and should have been obvious to anyone reading them. Yet the editors of the National Review, and many others on the Right and Left, and especially in the media, are expressing how shocked they are over the senator’s statement. In their view, representatives were simply not expected to object to the Electoral Count, and no Senators – let alone twelve – were expected to declare their support for such an objection (never mind that twice in the past a senator has joined with House Members to object to the electoral count). This is an incredibly serious matter, and not just for this election, but for all of these people who expected the process to go rolling smoothly on, simply because they wanted it to.

[Pardon a brief aside - if you haven't read or seen the movie or tv series "The Paper Chase", there are two scenes from it that come to mind today. The first is when a student in the fearsome Professor Kingsfield's law class, makes a foolish assumption on the first day of class and is 'shrouded' by the professor, symbolically made dead to the class, and he's advised by all to drop out of the professor's class. The student, Mr. Hart, who idolizes Kingsfield, figures out how to get the professor to physically remove his shroud, and becomes a living part of the professor's class once again (that scene from the tv series can be found here). My point is not to cast my friend as Professor Kingsfield, or myself as anything like Mr. Hart, but only to point out that The Law can make us all feel as if we have no part in it, and that we should not meddle in its matters. or question what its 'experts' say it means. That is an illusion, and one which the founders of this nation rejected wholeheartedly, and we should as well. Our Constitution was written, and its laws were intended for, We The People to understand them and in some sense, to oversee their management. That we've let ourselves be intimidated by it, or mystified by it, and worse have let ourselves become governed by bad laws, is something that must be put to an end, and it has to be done so by us. Particularly at this moment in time, we should be taking notes on just what a mess some of our most important laws - such as those governing our elections - have become, and insist that they be revised so that they can be understood and understood to be constitutional, or be repealed. It is time for us to stop leaving our laws to lawyers and legislators. It won't be easy, but it must be done. Ok, back the real life paper chase before us].

Those who’d like us to ignore that this election has been contested since the day after election day, would have us believe that the Constitution, and particularly it’s 12th Amendment, are all that’s in play at the moment, but as noted, that is not the case. The problem is that after the last major electoral disruption, Congress wrote The Electoral Count Act of 1887, primarily to handle competing slates of electors being sent to Congress by the states (BTW, no matter how official they may or may not be, we do now have seven states ‘submitting’ competing slates of electors) but the Electoral Count Act goes further than that and gets muddier than simply selecting the slate of electors to be counted, and it does so with a notable lack of clarity, a lack which has not yet been tested in any court, and that lack of clarity was and is a clear opening for the unexpected to stroll into one of the most volatile moments of our collective lives, that being in the midst of the transfer of presidential power from one administration to the next (the process of electoral counts has since been objected to in 1969, and in 2001 (possibly more than you want to know about the interpretation at that time), and 2005, and against Trump in 2017). I cannot for the life of me figure out how anyone with any knowledge of the process, hasn’t been raising red flags about it. It doesn’t require a person to support these challenges, to see them coming and to warn people that they are in fact there, that there is in fact a potentially dangerous pothole in the road to the inauguration before us. That is something that we should have been doing everything possible to make people aware of, and we should have all been intently discussing and debating this matter, rather than deriding others for mentioning even the possibility of it, and pretending it ‘won’t ever happen‘.

Please note that I’m not making a claim about the validity of the charges of fraud (I definitely have my suspicions, but I’m also curious about why when a Wisconsin judge gave Trump’s team an opportunity to argue their case in court, they passed?), I’m only saying that where our laws are unclear, actions are likely to be taken whose results cannot be predicted, and we should have been aware of and preparing for that. And unclear laws are exactly what we’re dealing with here, numerous experts have been saying so for decades, in statements such as this one noted in the National Constitution Center’s post on electoral disputes:

“…Election scholar Edward Foley wrote in a Washington Post op-ed in early December about the act’s language issues. “I have spent much of my academic career trying to parse its meaning, and I still find it impenetrable or, at the very least, indeterminate,” he admitted. Various problems Foley pointed to included unclear roles of state governors and other state officials as “certifiers” and what role the vice president can play in the process…”

That the wording of the law invites impressions such as that, practically screams out an invitation for the unexpected to occur. I don’t know what’s going to happen, and I’m unconvinced that anyone else does either – people, highly competent & informed people believe that they have very good reasons for what they think it means, and for what they say should happen, but that’s not the nearly the same thing as knowing what will actually happen. For those just now beginning to try figuring this process out, here’s the Congressional Research Center’s interpretation of The Electoral Count Act of 1887.

The plain fact is that the Electoral Count Act of 1887 (see also ‘Counting electoral votes in Congress’ 1948) has been in place for over a century, supposedly responsible leaders in congress have been well aware that it is an unclear and horribly written law that entire time which almost ensures a disaster of misinterpretations and calculated uses & misuses if ever fully triggered, and it’s seemed fairly obvious since early November that it would likely be triggered. What are we doing?!

The Electoral College is not a stand alone process, it is a feature of the Constitution which operates within it, and within those laws written under it, and contesting it does not make you opposed to the Constitution. The Constitution itself, in certain circumstances, gives final say not to the Electoral College, but to Congress. Congress has itself written further laws, such as in the Electoral Count Act, which further define how the Electoral College votes are to be received, and or called into question. Unfortunately, those laws are not models of clarity, which means and has clearly meant for over a century, that if an election were ever contested, no one can say for certain how it will turn out when it comes time for those laws to be triggered.

What are we doing allowing such important issues to go unaddressed? Pretending as if it simply wouldn’t be acted upon because it seems (and possibly is) unconstitutional, is not going to keep it from being acted upon by those with their own opinions and best of intentions for how it can and should be used. I’ve tried my best to point this out almost since the day after the election to point this out. I think it’s been a tragically missed opportunity that it was brushed aside, the issue should have been the center of popular discussion and debate for the last month, and if it had it might’ve headed off, or at least reduced, the turmoil which may be coming our way in the coming weeks. Instead, far too many informed people chose to mock and ignore the possibility of it, and I can find no sense in that.

I am in no ‘camp’ on this but that of the concepts and principles that our Constitution was derived from, and the laws written under it. The only position I have taken on this, is that of one with eyes to see the problem that was plainly laying in wait for us. I’m not arguing the soundness or legality of the allegations of fraud. I’m of course still hoping that Biden will lose, and I know that affidavits of fraud have been filed, charges have been made, irregularities have been alleged and in at least one case, clearly identified (PA Lawmakers: Numbers Don’t Add Up, Certification of Presidential Results Premature and In Error), but my hopes have no standing in the matter, and neither I nor anyone else have seen evidence of fraud being presented, tested and determined to be publicly proven (or disproven) in a court of law – I would very much like to see that process carried out, but at this point that is no longer the point. 

One point that should be considered, is what powers do our courts have to do anything about it, if they do discover proof of massive voter fraud? What’s the plan? What laws have been written to address that dangerous possibility? Almost none. People have been hiding their heads for a very long time. The point is, that our laws – which We The People are responsible for – have put this situation in our path, and those who were in a position to make Americans aware of it, and to face that fact (media, academics, political leaders on all sides), have not only failed to do so, but have actively sought to deny the possibility of it. We should have been facing and debating that, and letting our representatives know that we were aware of that and had expectations for how they should handle the situation, and those representatives should have been busily informing their constituents about it, and/or alternatives to it. Instead, we’ve received smarmy and snide comments about any thoughts that the election wasn’t yet a ‘done deal‘.

The fact is that once this election became a contested election, we were no longer on the track of ‘the same old thing’, and I think it was foolish for anyone to deny that,  it was foolish and reckless to go along with childish notions of a ‘Office of the President Elect‘, when the electoral process was still very much in question, and it was and is beyond foolish to tell people ‘it’s over, deal with it‘, when a plain reading of the 12th Amendment, the Electoral Count Act of 1887 (and related laws passed since – there are even some claiming that the 20th & 25th Amendments could somehow be brought to bear) make it obvious that when contested, there’s no way to know – not guess, know – how it will turn out. And I’m not referring only to who will be sworn in on January 20th, but to what response Americans will continue to have to the full process that leads up to that. That is what I’ve been saying all along, but people who preferred to let their feelings and partisanship cloud their eyes, have refused to see beyond what they’ve wanted to see. We could have, and should have, been discussing and debating the obvious problems ahead, but now that ‘never going to happen‘ is absolutely going to happen this week on January 6th.

Keep in mind that it’s very possible that the representatives’ objections will be raised, argued, and dismissed within a few hours on January 6th, with no further surprises for us on through to inauguration day. 

We’ll see. But either way, it’s better to be prepared for the unexpected, than to be completely surprised by it. I don’t know how this is going to turn out, but unlike others, at least I can say that I actually knew that much to begin with.

The person who is sworn in (hopefully) on January 20th will be President of the United States, and that fact doesn’t need or depend upon something so silly as whether or not I ‘support them’. Whether or not I think that they and their policies & actions should be supported or opposed, or even warrant impeachment (please, that door’s wide open), is a very different matter from who the president will be, and some of the responses that people will have will be more pointed because of what ‘unexpectedly’ happens this week. Who will be POTUS after what happens between the 6th & 20th, and beyond, I won’t hazard to guess.

See ya on the 7th.

/rant