Tags: 2020 Elections | Supreme Court | scotus | electoral college | states | law | election law

Judicially Created Election Laws Threaten Legitimacy of Presidential Electors

the 2016 presidential election electoral college map
(Karen Foley/Dreamstime)

By    |   Tuesday, 20 October 2020 06:04 PM

The U.S. Supreme Court's Oct. 5, 2020, order in Andino v. Middleton, preventing a U.S District Judge in South Carolina from unilaterally changing the state's election law is a welcome one. Hopefully, all of the other states facing similar situations will ask the Supreme Court to protect their states' election laws from judicial interference.

Much has been written about the potential for vote fraud that could result from some of the judicially rewritten state laws. What has not been considered is the impact judicially rewritten election laws could have on the selection of the president apart from issues of fraud.

Article II, section 1, of the U.S. Constitution provides, "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . ."

Clearly, electors who are selected in an election conducted in a manner dictated by judicial order are not being selected in the manner which the legislature has directed. At a minimum, this calls into question whether the electors selected as directed by the judiciary are constitutionally qualified to cast their votes for president and vice president.

It is not hard to imagine the presidential candidate who narrowly loses under the judicial election laws will argue he would have won if the election had been conducted, as it should have been, under the election laws enacted by the legislature.

For example, assume state law provides a ballot must be received no later than election day in order to be counted. Then assume the law is judicially amended to count ballots received several days after election day. One presidential candidate wins if only ballots received by election day are counted, but the other wins if late ballots are also counted. This could result in two different sets of electors claiming to be the rightful electors.

This issue could potentially be litigated and decided by a state's supreme court based on the facts of a particular case.

But whether that happens or not, under 3 U.S.C. section 15, the Congress will have the opportunity to consider which electors from a particular state have been lawfully selected. If the House and Senate agree on which electors have been lawfully chosen, the votes of those electors will be counted.

If the House and Senate disagree on which electors have been lawfully chosen, then under 3 U.S.C. section 15, "the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted."

How this will play out in practice, while uncertain, can be predicted with some confidence.

If on Jan. 6, 2021, both houses of Congress are controlled by the same party, the electors favoring that party will likely be counted. If each house is controlled by a different party, then the chief executive of the state involved is likely to favor the legal interpretation that would benefit the chief executive's candidate.

This is no way to choose a president of the United States.

Justice Brett Kavanaugh, in the Andino case, points out two reasons last-minute judicial rewriting of election laws should not be allowed. Add to that the third reason that judicially rewritten state election laws will call into question the legitimacy of the presidential electors in those states.

This is a problem that can be avoided if every affected state where judicial rewriting of election laws has occurred, obtains a stay of those orders from the Supreme Court of the United States. It appears the Supreme Court is amenable to doing just that.

Donald B. Stenberg holds a juris doctorate with honors from Harvard Law School and a masters in business administration from Harvard Business School. In addition to his private law practice, Mr. Stenberg was elected to and served three terms as Nebraska's Attorney General and two terms as Nebraska's State Treasurer. He has argued several cases in the Supreme Court of the United States, including the Stenberg v. Carhart case in which he defended Nebraska's law banning partial-birth abortion. He is the author of a new book, "Eavesdropping on Lucifer: A story every Christian should hear."

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Hopefully states will ask the Supreme Court to protect their states' election laws from judicial interference, Donald B. Stenberg writes for Newsmax.
scotus, electoral college, states, law, election law
Tuesday, 20 October 2020 06:04 PM
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