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Zero Tolerance for Election-Manner Violations
To follow through on the manner of appointment they directed, state legislators now must triage the vote count and must appoint electors.
James Anthony
December 11, 2020
Texas has filed a brief and complaint in the Supreme Court against Pennsylvania, Georgia, Michigan, and Wisconsin alleging that these defendant states violated the Electors Clause, equal protection, and due process in the 2020 presidential election through these significant unconstitutional actions [1]:
In these defendant states and everywhere else, state legislators can only be sure they will fulfill their constitutional duty to direct the manner of elector appointment [2] if they take further action commensurate with all evident malfeasance.
Don’t Count Compromised Votes
In Pennsylvania, for example [3], mail-in ballots that are defective, that lack signatures or have unverified signatures, that lack postmarks or were received after 8 pm on Election Day, or that were handled or counted without observers must, by law, not be counted. Ballots compromised by any other issues must also, by law, not be counted.
In addressing a given instance of defiance, it may not be feasible to individually identify only the compromised ballots. Information identifying only the compromised ballots may not be available, executives may prevent ballot identification, or the required time or resources may not be available to make up for the systemic defiance of the legal requirements for various manners of protection [4].
If it’s not possible to individually identify the specific ballots that must by law not be counted, then any group of ballots that contains such ballots must not be counted. The group of ballots that’s compromised in this way may very well include all the ballots of a given type in a given precinct or county.
Any disenfranchisement that results won’t be caused by the state legislators, who have exclusive, full power and duty to direct the manner of elector selection. Any disenfranchisement that results will have been caused by the state executives who defied the law, with or without help from judges who defied the law, and with or without help from any campaigns or activists who encouraged people to vote in manners that were more likely to get caught up in malfeasance.
To uphold the law, malfeasance must be handled with zero tolerance.
Besides upholding the law, zero tolerance also gets the incentives right. Bad actors find that defying the law makes them not only fail at their desired objective but also fall even further short of that objective. Future actors see that upholding the law offers them the best way to achieve their desired objective.
In counting votes, it’s good to visualize that the lawful votes are signal and the compromised votes are noise. To be sure you’re measuring pure signal, you must filter out all noise.
For triage, state legislators could summarize the processes used in the counties that best upheld the law, list the known deviations elsewhere, identify the smallest groups of ballots they can exclude that will remove all the compromised ballots, and not count the ballots that are in these groups.
The resulting signal likely will be far less complete than desired. But this measurement will best uphold the law, incentivize the desired behavior, and inform the appointment of electors by legislative vote.
Appoint Electors by Legislative Vote
Constitutionally, state legislators direct the manner of appointment of electors. In this election, in key states, the planned manner of appointment has been gravely compromised.
State legislators need to know that if they try to leave this legislative scope to judges, then judges may well take no action. At best, judges will come up with remedies that are less comprehensive, and that very likely are woefully inadequate.
If state legislators were to hastily call special elections, and if congresspeople were to accept this deviation, the special elections would likely be executed by the same bad actors, and would certainly not measure the original signal—the voters who answered the call to vote in the original election. This would penalize the original voters, and this would reward the bad actors with a second chance.
The current malfeasance must go unrewarded, and future malfeasance must be disincentivized.
As Rush’s Neil Peart put it, “If you choose not to decide, you still have made a choice [5].” If state legislators don’t take action themselves, they will leave their voters unrepresented. They will leave the people of their state, and the people of our nation, deprived of a republican form of government [6].
Who knows, perhaps you have come to your powerful position for such a time as this [7]?
Do the right thing and let the chips fall as they may.
References
James Anthony, author of The Constitution Needs a Good Party and rConstitution Papers, is a chemical engineer with a master’s in mechanical engineering, with a strong background in process design and control.
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