This is a matter of law. It has little, if anything, to do with who could or should be the next President. It is a matter of law, not fraud or facts of specific counting or not counting votes. The case brought by 18 states regarding the 2020 Federal Election is a matter of law.
How do we know this?
Because in 1994, we got the same lecture from the U.S. Supreme Court regarding our successful efforts to pass term limits in 14 states, including limiting terms for members of Congress from those states. The U.S. Supreme Court in a 5-4 decision said we could not do that. The States could not override the federal constitution on matters of how members of Congress are to be elected as it regards terms of office. The terms are set by the federal Constitution; therefore, a state constitutional amendment cannot change that reality. It was a close fight. We made a reasonable case that the Constitution delegates “times, places and manners of federal elections” to the states but the Court said, ‘Nice try.’ The Court held to the definition that terms of office are set by Constitutional provision and can only be changed by Constitutional provision. The states do not have the power short of passing a federal Constitutional Amendment.
Fast forward to 2020 and Texas (plus 17) v. PA, MI, GA, WI.
The 2020 Election case is simple and clear. The U.S. Constitution in two places mandates that election laws for federal offices including the presidency are to be established exclusively by the actions of state legislatures. No exceptions, no nice tries. (see Article I s4 and Article II s1). In the 2020 Election, four states changed their election laws in a variety of ways all of which impacted the outcome of federal races, BUT those changes were NOT done by the state legislatures, as mandated by the Constitution. They were done by other agents such as state courts, etc. Therefore, those changes on their face are a direct violation of the U.S. Constitution. There is no logical argument to the contrary.
This is not about fraud or counting or ballots under the table. It has NOTHING to do with who won or lost. This is a matter of law. Every media outlet and legal expert that is claiming that the states can do whatever they want is simply not reading the clear text of the Constitution. If they were right, we’d have term limits on federal office holders.
It is not the words “the states” that appear in the U.S. Constitution. “The states” do not have the legal authority to set election laws for federal offices. It is the words “each state by the Legislature thereof” that are in the Constitution. And words matter in matters of law.
So What?
The Court is obligated to answer the claims of 18 states. The Court has original jurisdiction in the case which is a rare legal position for a court designed for almost exclusive appellate jurisdiction. The plaintiffs (TX plus 17) are part of a national compact known as the U.S. Constitution where every state agrees to play by the same rules. A national election impacts all 50 states. If any agency other than the state legislature can change the rules for federal elections then where does it stop? Can a county department of health cancel an election because they consider it to be too dangerous to conduct? Can a governor cancel an election just because he or she says so? Before claiming such a premise is absurd, it is important to note that two governors did just that in 2020 and got away with it.
Bottom line: This breach of constitutional practice is a portal to chaos now and in the future. The Court must declare the actions of the four states as unconstitutional because the changes were made outside of the clear language of the Constitution.
Then What?
As for a remedy, what can or should the Court do?
What if the Court made the obvious ruling on the law and then left the remedy to the U.S. Congress? It is the constitutional responsibility of the Congress to certify the outcome of the electors sent by the states. Congress could remove the electoral votes of those four states from the count. That would be a just end because those states clearly broke the rules. That would leave an electoral count where neither Biden nor Trump would be the winner. Then the Congress will have to decide according to the Constitution (Amendments 12 and 20) on how to elect a President. Why? Because four states failed to follow the Constitution and broke the law.
By design the Congress is the ultimate “backstop” in the event of such a failure on the part of the states. Congress is elected by all the voters of all the states. So the disenfranchisement of the Presidential election votes is reclaimed by the fact those same voters had the opportunity to elect the Congress. The Constitution is clear, if the states fail in their responsibility to legally elect a President, the law has always left the remedy to Congress. Members are elected by the people and thus, the people are represented. It is not the best solution because ultimately the President and Vice President are to be elected by the states through the voters who select the Electoral College. But if the system breaks down the remedy is for Congress to decide.