It’s axiomatic that when you suddenly change the election rules and modus operandi, causing 65 million mail-in ballots (out of 159 million total) to flood unprepared local elections systems, you will get beaucoup irregularities, mistakes and fraud. To that extent, the impending Trumpite challenge when the Congress meets on Wednesday to certify the 2020 election results is spot on.
But at the end of the day, the challenge being mounted by Senator Hawley (R-Missouri) and the Cruz Eleven is both futile and mischievous. That’s because, thank heavens, American government is not organized into an all-powerful, centralized, unitary state like France, Red China or countless other authoritarian regimes in-between.
To the contrary, government in America remains decentralized and federalist, even if the founders’ design, culminating in the 10th Amendment’s reservation of unexpressed powers to the states, has been relentlessly chipped away since the New Deal. Indeed, when it comes to many aspects of day-to-day governance, such as on matters of public welfare or commerce, federalism has been drained of substance and the sovereign states have, regrettably, morphed into administrative appendages and fiscal supplicants of Washington.
Yet notwithstanding that erosion, one originalist feature from the 1787 convention remains largely in tact: Namely, that the election of Federal officials – congressman, senators and presidents – is to be conducted by the states as seen fit by their sovereign legislatures.
And that’s where the Trumpite challenge comes a cropper: No state has sent dueling slates of electors to the Congress, and no state legislature has petitioned the Congress asserting that its now certified tally of the presidential votes was the product of fraudulent or nefarious maneuvers.
Q.E.D. There is nothing to contest rooted in electoral Federalism because there are no state-based disputes pending before the new Congress. That’s essentially the position of solid libertarians like Congressman Thomas Massie. He’s dead-on correct and not just owing to Scaliaian regards for the Constitution’s language and intent on the matter of Federal elections.
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