By Harold Pease, Ph. D.
Some senators, notably Ted Cruz, seek to reinstate an Electoral Commission to resolve the contested electoral vote of the states forwarding two slates, one Democrat and one Republican, to the President of the Senate as required by the Constitution. This happened in the contested presidential race of 1876 between Democrat Samuel J. Tilden, needing a single electoral vote to win, and Republican Rutherford B. Hayes, needing 20. Amazingly the Commission of eight Republicans and seven Democrats, ruling on party lines, gave the election to Hayes.
Unfortunately the Commission solution is not in the Constitution, then or now, and in fact displaces what is. It denies the President of the Senate his constitutional role to reject multiple submissions or deny submissions that did not follow the rules or law. Past practice has Thomas Jefferson the first to use it in the presidential election of 1800. It happened again in 1856 when the President of the Senate counted five votes in Wisconsin over objections from both the House and Senate and prohibited any debate on the issue (Who Counts the Votes of the Presidential Electors?, Alexander Macris December 7, 2021). He is the the only authority figure identified in Article 2 . He is part of the integrity of the solution. His entire role in the Senate is to have the deciding vote when a tie exists. Likewise his role in the joint session, he is required to assemble, is more than just as a vote counter or face to bring the houses together.
Overwhelming, even televised fraud viewed by millions, should be reason enough for any President of the Senate to reject electors from double slated states who themselves were not able to resolve their entry. At this point, given a defaulting Supreme Court and defunct state legislatures, the Constitution gives only The President of the Senate and the House of Representative a function in resolving the election. Is Mike Pence strong enough to defend this part of the Constitution. Probably not.
Perhaps the President of the Senate could give the seven multiple slated states, now again in session, 48 hours to forward a new slate with the signatures of the state legislators approving. If a majority sign, this would prove that it is the will of the state legislatures as required by the Constitution. These then would be counted. States not meeting this deadline would lose their electors on the basis that the election in their state was too fraudulent to count. It would also remind them of their soul function to choose electors, not hand it off to hostile governors. The issue is then constitutionally resolved.
A Commission also displaces the House contingency vote outlining a state delegation vote as the next appropriate constitutional process, thus essentially removing it from the Constitution. “But in choosing the President the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all states shall be necessary to a choice” (Amendment 12). This too would solve the Constitutional crisis within 48 hours or less. It also favors Trump as 28 of the House congressional delegations are Republican, a majority. This has a much better option of the desired outcome for Republicans than an unconstitutional and flawed commission.
It is too late for a commission. Pelosi would appoint hardened Democrats, McConnell, luck warm Republicans, as in Mitt Romney that may even side with Biden just to move on. Either might delay appointment of commissioners to apply pressure on Trump to just concede before January 20th. The Supreme Court under Chief Justices John Roberts, is an anti-Trump Republican and less trusted than McConnell. Who knows who he would appoint if we had 15 commissioners five from each body, probably himself and the three Democrat Justices he often votes with. Predictably the end vote of the Commission would be a Biden win.
One hundred and forty-six years ago the Commission had until March 4, 1876 to render a decision and they did so March 2. Today this Commission would have 10 days but that is after it is formed and its results reviewed by all contending state legislatures who need time to assimilate and forward a new slate of electors. As of the submission of this article for publication we have 14 days before the inauguration of either Biden or Trump. This is not enough time.
Unfortunately, there exist no neutrals in our day as evidenced by the failed judicial system in contended states with Democrat judges. They each refused to see the evidence. “Nothing to see here,” while hundreds of whistleblowers said otherwise and Americans viewed Georgia video tapes of counting hidden ballots after Republicans were dismissed from the room. Nothing shows that the evidence even matters to Democrats. Even the Supreme Court, that should have ruled on the Texas case, and still can on the Pennsylvania case but prefers to “run out the clock,” has refused to do so.
When the Republicans did this in 1877 they succeeded because they bribed the Democrats by consenting to remove Civil War federal troops still stationed in the South if they would agree to give the presidency to Rutheford B. Hayes. The South hatred the troops still in their land and agreed but the election, nevertheless, was stolen from them. Today we have nothing with which to bribe them.
The Constitution, as written, can still resolve the 2020 presidential election crisis. Going off script, as with a commission, will not. As written gives only the President of the Senate a function to accept or reject electoral slates and the House alone to vote by state delegation. Anything more than this is a perversion of the Constitution. As written also restores lost integrity to the election.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He taught history and political science from this perspective for over 30 years at Taft College. Newspapers have permission to publish this column. To read more of his weekly articles, please visit .www.LibertyUnderFire.org.