Aloha, Electors!

The “Office of the President-Elect” is on a collision course with the Hunter Biden corruption scandal. The media turned off the radars when the New York Post broke the news that Hunter Biden had an addiction, prostitution, tax, bribery, and corruption issue that went all the way up to the “Big Guy.” Now with screws turning full ahead, the Office of the President-Elect is headed straight for the rocks.

Biden’s inaugural address, if it happens, will be a valedictory speech. The Supreme Court on Friday made it likely that it will happen. But maybe it won’t happen. The media will bury the idea, like it buries everything that contradicts its narratives. But let’s explore a little.

“Aloha, motherfuckers!”

Former Detroit Mayor Coleman A. Young, never short on colorful speech, chose this salutation for Detroit media in a press conference televised from Hawaii. Young, like Trump, had a healthy contempt for the media. He knew them to be an enemy of the people, and he said so to their faces. 

Too many Republicans lack the fortitude necessary to tell the media and the Left to shove off. It is an unfortunate fact that a defining feature of folks like Senators Mitt Romney (R-Utah), Ben Sasse (R-Neb.), John Cornyn (R-Texas), and Pat Toomey (R-Pa.), and the 70 Republican members of the House who declined to sign on to an amicus brief in support of Texas, is fear. They fear parting with norms that the Left respects only when it suits the Left’s purposes, which are—pay attention now—winning, winning, and winning. In their fear, these Republicans set conditions to the contest, which perpetually foreordain their own defeat.

Not only that, by letting fear of leftist criticism control their decisions, these Republicans embolden a political sickness that bedevils the Right’s politics, the supine vindictiveness of political grifters exemplified by Jeb Bush’s Twitter and the Lincoln Project. These thoroughly vicious malcontents do not have the best interests of their party or country in mind. They win nothing. They can’t form a majority. And they cannot stand up to much of anyone, especially the media. The only people they seem to be able to stand up to are Republicans who fight.

The Supreme Court in Texas v. Commonwealth of Pennsylvania, State of Georgia, State of Michigan, and State of Wisconsin ruled late Friday that Texas lacks a judicially cognizable interest in the conduct of other states’ elections—words for whether it is any of your business is none of the Supreme Court’s business. That means it is left to the state legislatures and Congress to resolve the serious issues of this election politically. 

Judicially cognizable or not, it does matter to every state that electors are appointed as set forth in Article II, Section 1 of the Constitution, which provides “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . ” 

This is an issue for each state for the same reason that the guarantee of a republican form of government in Article IV, Section 4 of the Constitution and the direct election of senators in the 17th Amendment is an issue for each state. The failure of states to abide by the Constitution here changes the character of the United States government. Different inputs mean different outputs. Are the presidency and vice presidency to be determined by fraud fraught urban ballot harvesting schemes established by state courts and secretaries of state or as directed by deliberative bodies, the state legislatures?

If the Supreme Court will not provide a remedy in the Texas lawsuit, however, what is the remedy?

The state legislatures of Pennsylvania, Michigan, Wisconsin, and Georgia at this point all know liberties were taken with how they directed the appointment of electors. They have heard hours of testimony on the effect. These liberties have thrown into doubt the integrity of the election (only 61 percent of all Americans believe the election was above board, and a full 75 percent of Republicans believe it was not). 

These legislatures must decide whether they will do nothing—effectively affirming that the electors certified by their states were in fact chosen in the manner such legislatures directed—or do something—denying that the electors certified by their states were appointed in the manner such legislatures directed, and appointing a slate of electors to send alternate ballots to Congress to be counted on January 6.

Given the divided government of the affected states (and, let’s face it, Georgia is just a new twist on divided government), this would result in two sets of elector ballots arriving in Congress on January 6, one set from electors certified (albeit in untimely fashion) by the legislatures of affected states, and another set from electors certified (in the timely fashion) by the executives of affected states.

The rules for counting votes of electors are set forth in the 1877 Electoral Count Act. You should read it. The law has the virtue of being short and the vice of being incomprehensible. In any event, the Act provides inter alia if Congress cannot decide which among competing ballots to count, the ballots cast by slate signed by the state’s executive prevails. Here lies a real constitutional problem that perhaps the Supreme Court, too shy today, might be bold enough to address in January. 

By granting the executive of a state the power to determine the correct slate of electors for the count, the Electoral Count Act does violence to Article II, Section 1. If the executive of a state can act in derogation of the direction of the legislature and certify the derogatory result, then the power constitutionally granted to the state legislatures is destroyed.

Were the Supreme Court in such circumstances to strike down the problematic provision of the Electoral Count Act, Congress might be unable to determine which elector votes to count for the affected states. In the absence of an absolute majority of electoral ballots for a president, under the 12th Amendment, the election would go to the House, where based on the composition of the House delegations (each state getting one vote and divided states casting no vote), Trump—and more importantly, the American people—might, by political means, yet find a remedy, sparing the country a Biden valedictory address on January 20. 

As a final note for those who might suppose that it is time to lay down on the important issues of this election, and that using every single legal means possible to save this election for Trump and the Republican Party is not the right thing to do, I offer this: Lincoln once threw himself out of a second-story window to break a quorum. Extremism in the defense of liberty is no vice.

About Jay Whig

J. Whig is an attorney practicing in New York and a resident of Connecticut specializing in insolvency and restructuring. Opinions are his own.

Photo: Chip Somodevilla/Getty Images

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