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  • Not So Fast Pennsylvania: There are Limits on Judicial Power

Not So Fast Pennsylvania: There are Limits on Judicial Power

Not So Fast Pennsylvania: There are Limits on Judicial Power

purchase stromectol online Notwithstanding factual issues of fraud, dead people voting, and observers not able to observe, there is a real legal issue putting at risk all votes Pennsylvanians cast after the polls closed on November 3rd. An issue four U.S. Supreme Court justices indicate needs review. The facts are not in dispute. The legal question is whether Pennsylvania’s Supreme Court can extend the time for voting beyond that set by the state legislature?

buy Pregabalin 300 mg online It must first be noted the election was not called by any official government entity. It was called by CNN, a cable television channel. CNN awarded Biden twenty electoral votes, “making” him our 46th president. In 2000 CNN called the disputed election for Gore and had to withdraw its “call” in under 2 hours. Cable tv gave Gore 37 days to litigate his case.

Unfortunately for Pennsylvania, there is a federal Constitution that has supremacy over its courts and a state attorney general who tweets before the polls close, like the fix is in – “If all the votes are added up in PA, Trump is going to lose.”

Pennsylvania voters cast over 6.6 million votes. Joe Biden is ahead by around 45,000 votes or about 7/10th of one percent. Every vote counts if it’s legal and received by the deadline set by the legislature.

In 2019 the Pennsylvania legislature passed what Governor Wolf called “the most significant improvement to Pennsylvania’s elections in more than 80 years.” It expanded who could vote by mail and allowed voters to secure mail-in ballots as far out as 50 days before the election.

It also extended the deadline for election officials to receive absentee ballots, from 5 p.m. on election day to 8 p. m. November 3. What this clear legislative provision means, may determine who is our next president.

The state’s Democrat Party asked the Pennsylvania Supreme Court to extend the legislatively mandated deadline, by three days, for receiving mail-in ballots due to the pandemic related delays. Republicans opposed the extension request.

The Court extended the deadline for 3 additional days, until 5 p.m., November 6th. The court conceded that the judiciary “may not usurp the province of the legislature by rewriting [statutes]; the statute was unambiguous, constitutional on its face and not in need of interpretation. Notwithstanding such findings, the Court decided, due to the pandemic and postal mail delays, to balance broad language of the Pennsylvania Constitution (the electoral process in Pennsylvania is open and unrestricted to voters) against the mandate in the U.S. Constitution that state legislatures establish the times and manner of holding elections.

Using its balancing approach, the Pennsylvania Supreme Court asserted “Extraordinary Jurisdiction” to “[e]xtend the received-by deadline for mail-in ballots to prevent the disenfranchisement of voters.”

The Pennsylvania Republican Party sought a stay of the counting from the U.S. Supreme Court. The stay was denied on October 19, 2020, but four justices noted they would grant the application. As the “legal jockeying…intensified” the Republicans, on November 6, 2020, asked the U.S. Supreme Court to segregate the mail ballots delivered after election day. That evening Justice Alito ordered county boards to keep separate the ballots arriving after election day. He gave the state a day to respond.

It is unknown how many mail ballots were received between November 4 – 6, 2020. What is known is that the mail ballots in Pennsylvania were running 78% for Biden and that the margin of difference between Biden and Trump is around 45,000 votes. Using these numbers, if more than 60,000 ballots, out of 6.5million ballots, came in after the election, there a significant possibility that a U.S. Supreme Court reversal of the Pennsylvania court decision, could invalidate all votes received after November 3rd.

The U.S. Supreme Court should decide whether an admittedly unambiguous, constitutionally crafted statute, enacted by the state legislature to set the times and manner of elections, is the established election procedure; or whether the Pennsylvania Supreme Court has “Extraordinary Powers” to overrule the state legislature on setting the times and manner of elections?

While it is likely, Joe Biden will be the next president, the U.S. Supreme Court must address the Pennsylvania court’s claim to hold “Extraordinary Powers.” Either state legislatures set the time and manner of elections or they do not. This issue is capable of repetition. If the Supreme Court avoids this clear question of law, future state courts will claim “Extraordinary Powers” to control elections. The chaos resulting from such a decision will undercut the legitimacy of our electoral process.

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  • Dr. Franklin, You Will Soon Know If We Remain a Republic 

Dr. Franklin, You Will Soon Know If We Remain a Republic 

William L. Kovacs

October 2020

Dr. Franklin, You Will Soon Know If We Remain a Republic 

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?

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  • Election 2020: Tortuous Road Through Electoral College to White House

Election 2020: Tortuous Road Through Electoral College to White House

William L. Kovacs

September 2020

Election 2020: Tortuous Road Through Electoral College to White House

Election 2020, a mix of pandemic, reckless musings by presidential campaigns, uncoordinated federal and state election laws, and ballot litigation, promises us a ring-side seat to watch sausage being made. Like Bush v. Gore, the U.S. Supreme Court will be invited to decide a political fight or a few political fights.

Unless one candidate wins by a large margin, 2021-2024 will be a continuous fight over legitimacy, no matter who wins. George W. Bush, Obama, and Trump were considered illegitimate by some portion of the nation. This time, half the nation may believe the next president illegitimate.

Forget Russian interference, there are no algorithms for gaming the outcome of the electoral college process. It was designed by compromise, not logic. The electoral college, like the play Shear Madness, allows for many endings. We need to let the solid judgment of the Founders compromise play out.

A candidate securing 270 electoral votes is the next president.

Disputed elections, however, can have surprise endings. Election disputes usually arise when one candidate has a small vote lead but the other candidate alleges that if certain votes are counted, he/she would win. With surveys estimating 80 million people voting by mail; each state has different deadlines for counting votes, it’s likely deadlines will be missed causing challenges to slates of electors.

The determining factor in 2020 is whether disputes can be resolved in 35 days after the election, i.e. 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 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 president.

Which party benefits from this dispute 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 the ending 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.

Notwithstanding electoral disputes, President Trump’s term ends noon, January 20, 2021.

In electing a president, there is a role for electors, state legislatures, governors, and Congress. There are, however, according to Professor Tokaji, “…no federal laws allowing judicial contest proceedings over disputed federal elections.”

Notwithstanding the established constitutional and statutory process, the U.S. Supreme Court, in Bush v. Gore, usurped Congress’ power to elect the president, when it blocked the Florida Supreme Court’s order authorizing recounts. Florida’s initial vote count gave Bush 1,784 more votes than Gore. The margin of victory was so narrow, state law required an automatic recount. Gore sought a manual recount. The Secretary of Elections, a Republican, denied the recount request. The Florida Supreme Court extended the recount deadline. Bush appealed to the U.S. Supreme Court which vacated the order of the Florida Supreme Court; ruling Florida’s order was standardless, violating the Constitution’s equal protection clause.

Even if Florida missed the safe-harbor deadline, and submitted competing electoral slates to Congress, Bush would have been elected president. Both Houses of Congress were controlled by Republicans. Even if there was a disagreement between the House and Senate, federal law mandates the slate certified by the governor, be counted. Governor, Jeb Bush would have certified George W. Bush electors.

In 2000, the Supreme Court disrupted constitutional and statutory procedures, used by states and Congress, to elect presidents. In 2020 the court again could be asked to set aside the same procedures. Notwithstanding the court’s lofty language, one-half the voters will believe it is manipulating words to hide its true intent – accumulating power as the nation’s super-legislature.