Aside from allegations of widespread fraud, the November 2020 elections were flawed by changes made to voting laws in many states, without the required approval of state legislatures. Especially in swing states where the vote was close, state legislatures have good cause to hold repeat elections that observe the anti-fraud safeguards which were illegally ignored in November.
This is the only fair and legitimate solution under the Constitution -- to return the issue to the People, and let them decide the real winner. This remains true even after certification of the Electoral College and the inauguration, all the more so since that decision failed the due process test: "an impartial decisionmaker is an essential right."
Changes made to voting practices before the last election enormously expanded mail-in voting while loosening controls, greatly increasing the risk of fraud and irregularities, ballot harvesting and vote buying. Since extra-legal changes by state officials are not allowed under the U.S. Constitution, this rendered those election results invalid. Since the vote for President was very close in the swing states, the outcomes might easily change if the valid voting laws are applied.
The Republican Party controls five of the six swing states, with 73 electoral votes (see Table below). To overturn the result in repeat elections, the Republicans only need to win two of the largest states: Pennsylvania, plus Georgia or Michigan. The state legislatures are the branch of government with primary authority over the holding of federal elections, including the power to hold repeat elections.
State legislatures determine "the Times, Places and Manner of holding Elections," pursuant to Articles I and II of the Constitution. One problem is that legislatures mostly act by passing bills that can be vetoed by the governor, and in three of the five states the governor is a Democrat.
It is not clear if legislatures can call a state-wide repeat election directly on their own. If it is done together with a state electoral commission, without a bill to be presented to the governor, there would be no veto.
Legislatures also have investigative powers and election oversight committees. They can independently commission post-election audits, but audits cannot capture the difference resulting from changing the voting rules. For that, a re-enactment under the correct rules is needed. Thus, legislatures would arrange for repeat election probes, in a limited but statistically significant number of precincts, as a forensic test to investigate how much the changed rules changed the outcome.
If the results show Trump should have won, then the legislature can draft a bill for a repeat election. If that is vetoed, they would then have grounds to change their appointment of electors over to Trump. This would be a constitutional crisis that would go to the Supreme Court, if Biden does not concede.
Legislatures can initiate both tracks concurrently. While drafting a bill for a statewide compliant runoff, also prepare for a veto by planning runoff probes in critical precincts marked by a high incidence of statistical irregularities, for instance, extremely high voter turnout, out-of-date voter rolls with an abnormally high percentage of registered voters, etc. The veto may lend legitimacy to the compliant runoff testing initiative.
It may be a natural reaction to conclude that it is too late for this, after the certification of the electoral college and impeachment proceedings. Yet the federal statute of limitations on fraud is seven years. Moreover, the certification of the electoral college vote was basically unconstitutional as well. It violated due process, since the Democratic Party acquitted themselves of the charges against them -- a mockery of justice and of checks and balances. Even if this way of handling electoral college objections has been the practice for a long time, that does not make it right. It is never too late to learn..
Amendment IX specifically states that no provision of the Constitution shall be construed to deny the rights of the people -- such as the right to a fair election, and to due process. These essential, basic rights are the very purpose, spirit and meaning of the Constitution. They take precedence over the letter of the law in other provisions of the Constitution, or the powers of any branch of government, let alone formalities like timing.
Thus Amendment XII, the constitutional provision for certifying the electoral college, is not meant to be used to circumvent justice or condone fraud. It is a simple provision that does not foresee the case of irregularities, fraud, corruption, or even voting on party lines. The Constitution is a civil code; it was not written for criminal matters.
That means an election must be materially free of fraud, irregularities or illegalities before the provisions of our Constitution, like Amendment XII, can be duly applied to its result. The Constitution's framers did not, and could not, create a non-partisan body competent to repair a seriously flawed election, as this is an impossibility. The only way left open is to remand the dispute to the People in a repeat election, especially when the failure to conduct the election according to law is at issue.
Some observers see massive signs of fraud in the last election, others see none. Since fraud can be very hard to detect, the only sure way to clear suspicion is a repeat election, strictly applying all the anti-fraud safeguards mandated by state law. Moreover, there is also no other way to tell what the result would be while respecting the state laws that were violated -- except by holding an election in accord with those laws. Finally, activating our repeat election option will be a great deterrent to future irregularities.
To minimize the need for repeat elections in future, Congress should finally adopt the main safeguards recommended by the Carter-Baker Commission on Electoral Reform in 2005.
February 15th is Presidents' Day.
America recognizes two Presidents now, besides Washington and Lincoln.
One half of the country believes Trump rightfully won.
Others fault his claims of a stolen election for provoking protests.
But what if the Democrats really did steal the election? Wouldn't the fault be theirs?
And how can we know whether they really stole it?
Claims of "Massive fraud" on one side vs. "No sign of fraud" on the other -- who is right?
One thing is crystal clear:
Unconstitutional, illegal changes to voting laws generated millions of irregular ballots -- a hundred times greater than the margin between the candidates, in some swing states. If the balloting is illegal, there is no way the count can be correct.
An unconstitutional vote can only produce an unconstitutional result. Everything that followed -- the certification of the popular vote, the electoral college vote, and the inauguration -- none of these steps had any legal foundation.
Bad data makes bad decisions. Since Nov. 3, our machinery of government has been spinning off course on erroneous, unlawful inputs.
The only solution in such cases is to correct the error.
Until runoff elections are held in conformity with the law, we will still have two Presidents.
Only one of them can be the rightful one.