Dear Dr. Franklin:
In troubled times we are reminded that after the Constitutional Convention, you were asked what type of government do we have, a Republic or Monarchy? Your reply, “A republic if you can keep it,” is as profound today as it was in 1787. Over the centuries, Americans have been fortunate to have leaders who strove to keep the nation together. With the leadership of Lincoln, Roosevelt, and Truman we survived a civil war, world wars, and depressions.
We no longer have American leadership. We have only political leadership; “leaders” who win by dividing us. Voters are merely commodities that accept political promises in exchange for their votes.
Democrats want to mindlessly flood the U.S. with mail-in ballots that can be completed by anyone and delivered where needed.
President Trump urges supporters to vote early (by mail) and often (in-person). His Postal Service is restructuring operations (slowing down delivery) in 17 postal areas with 151 electoral votes. Yet, he accuses Democrats of stuffing ballot boxes and destroying ballots. He refuses to commit to a peaceful transfer of power should he lose.
Both parties believe chaos works to their advantage. Both parties refuse to renounce violence should they lose. Trump tells fringe groups “stand back and stand by.” Democrats claim the militant Antifa, a group that burns down cities, are peaceful protesters.
President Trump seems to welcome the opportunity to use force against any civil unrest. The Democrat presidential nominee seems to view the use of force against his supporters as a real sign that Democrats are fighting fascism.
With tens-of-millions of mail-in ballots being cast, official counting may extend beyond the December 14, 2020, electoral college voting deadline. Lawsuits will challenge millions of ballots, all to ensure a “fair election.” So far, 399 election lawsuits have been filed over when ballots must be counted, location of polling places, ballot drop boxes, poll watchers.
Both presidential candidates see different paths to victory. Biden’s path is through loose voting standards and friendly state courts, e.g. PA (extra time), OH (extra drop-boxes.) Trump, like President Bush in 2001, views the U.S. Supreme Court as his ticket to victory.
Three likely scenarios are unfolding.
Biden wins by turning out a vote so massive it cannot be seriously challenged in court.
Trump wins by creating such significant chaos that his conservative Supreme Court must again act as a Super-legislature to “save the nation.” Bush v. Gore, is the perfect example. The five Republican members of the court usurped Congress’ power to elect the president when it blocked the Florida Supreme Court’s order authorizing recounts. By ending the recount, the court elected Bush as president.
If there are disputed electoral votes, Trump will ask the court to set aside the laws of those states and award their electoral votes to him. This time, however, there are six Republicans on the court. Three of the justices, Roberts, Kavanaugh, and newly appointed Barrett, were part of the Republican legal team in Bush v. Gore. They know how to use the court to elect a president.
By rushing the appointment of Barrett, in the middle of a presidential election, it looks as if Trump gave her the job so she can vote to let him keep his job. Should Justice Barrett, not recuse herself, and Justice Roberts abandons the president, she will determine the next president. A similar situation happened this week when the U.S. Supreme Court deadlocked 4-4 on a Pennsylvania case involving the time for counting ballots.
If Barrett’s vote elects Trump, the resistance will firmly believe the election rigged. This will be their reason for massive resistance. It will be Trump’s reason to designate these groups as “terrorists” and use the military to “restore order.”
The third possibility is to follow the Constitution and federal statutes governing the election of the president in a disputed election. It is difficult to manipulate this process.
Election disputes usually arise when one candidate has a small vote lead but the other candidate alleges that if certain votes are counted/discounted, he/she would win. The determining factor in 2020 is whether disputes can be resolved before December 8, 2020. If disputes are resolved within that time period, the selection of electors is “conclusive” and must be accepted by the next Congress, starting January 3, 2021.
Electors from states with unresolved disputes will be resolved by Congress in accordance with federal statutes. In separate proceedings, each House must decide which set of state electors to certify. If the House and Senate agree on a slate of electors, the slate is certified. If the House and Senate cannot agree, the electors certified by the Governor of the state are counted.
After certifying contested elector slates, Congress counts the electoral votes. If one of the candidates receives 270 electoral votes, that person shall be president. If no person has a majority of electoral votes, the House, voting by state, each state having one vote, votes to elect a president. The person receiving votes from a majority of states is the president.
Which party benefits from this dispute resolution process? Currently, Democrats control the House however, Republicans in Congress hold majorities in 31 state delegations and 26 governorships. In seven swing states (AZ, FL. IA, MI, MN, PA, WI), Democrat’s hold majorities in 4, Republican’s 2, and PA is tied. Republican governors in swing states hold a 4-3 advantage. Guessing who wins is Shear Madness!
There is no time frame for completing the process, thus the need for the Presidential Succession Act which establishes a line of succession to ensure the nation is never without a president. Trump’s term would end on January 20, 2021, and an acting president would serve until Congress elects a president.
Dr. Franklin, to continue as a Republic, citizens must view the election outcome as fair and legitimate. This requires the Supreme Court to extend deference to Congress and state legislatures in this most political of political matters. The presidential candidates must be gracious and peaceful in transitioning power or accepting defeat, otherwise the resistance and the armed militia, as proxies for their candidates, will fight for their version of a Republic.
Who knows what type of government we will have after such conflict?