Ken Blackwell is Senior Fellow for Human Rights and Constitutional Governance at Family Research Council. This article appeared in The American Spectator on November 27, 2020.
Principles critical to the foundational freedom of this nation and its citizens must be preserved and vigorously defended regardless of who takes the presidential oath every four years. With our “three-layer cake” of government responsibilities at the federal, state, and local levels, America’s unique shared governance is defined by the U.S. Constitution. After this election and its nearly endless allegations of vote fraud, no role is more important than state legislators, who hold sole power to determine election policy and procedure.
Despite clear constitutional limits and roles, liberal judges (appointed, not elected) have stolen state legislative power over election policy. Conservative legislators, cowed by leftists, have done little to protect election integrity in their states.
Nowhere is this theft of authority more apparent than in Pennsylvania. Republican state representatives passed legislation in September to shore up vote protection. Then Democrat Gov. Pat Wolf, without authority, initiated changes that made vote fraud easier. Wolf’s anti-vote security measures were upheld in October by the 5-to-1 Democrat majority Pennsylvania Supreme Court.
This unlawful decision negated legislative law requiring the rejection of mismatched signatures on ballots. This was good news for ballot harvesters, who no longer had to worry about practicing stolen voter signatures before mailing stolen ballots.
Out of America’s 99 legislative bodies, the GOP currently holds majorities in 59, and gained two more in the election. In 2021 there will be 27 Republican governors and only 23 Democrats.
These state political majority numbers, combined with constitutional authority, give conservative state legislators the political support and legal authority to demand recounts, investigate fraud allegations, and determine certification announcements.
The Founding Fathers, with a prescient fear that corruption could leech into American political power, set up a constitutional republic formally dividing governmental powers. Federalism was written into law through the 10th Amendment and other constitutional statutes, and provided shared power between national, state, and local authorities throughout these united states (capitalization intentionally omitted).
The Constitution designates the “enumerated powers” of the federal government and leaves all other policymaking to the states. The Founders believed those who govern closest to the people govern best — known as the principle of subsidiarity. Although the word is seldom used in common conversation, the principle is not. Subsidiarity simply means issues are handled best by those in the least centralized authority.
Under Article II, Section I of the Constitution, further confirmed by the 12th Amendment, the federal government has one election job — setting the national date for voting and certification by the Electoral College. Governors have no federal or state authority over elections, nor do state judiciaries. The liberal media and leftist activist class have no role at all.
Although our country has veered from other enumerated powers and subsidiarity, the responsibility of state legislatures to direct election protocols is foundational and authoritative. It has never been systemically challenged on a national level by one political party — until now.
In at least 20 states, liberal lawsuits waved through by activist judges usurped the power of the people by dismantling vote security measures passed by state legislators. Nearly every state endured challenges to vote integrity from the left-leaning activist groups, while conservative vote integrity organizations and individuals, and Republicans, scrambled to fight them.
Another tool for legislators is filing a Writ of Mandamus with a court (used only when a government official is not fulfilling duties of the office) to compel a governor to call a special legislative session addressing the integrity of a state’s votes and the status of electors. This is being considered in Georgia, where high-level state officials are being accused of ignoring widespread reports of fraud.
In Pennsylvania, the clear violation of Article II of the Constitution giving election authority to state legislatures resulted in a mess of outrageous partisan behavior at polling stations, disputed procedures, and unstable vote counts, which have, at the time of this writing, made it impossible for state electors to certify for Vice President Biden or President Trump.
Pennsylvania has a Democrat governor and a Republican legislature. Yet GOP State Representative Mike Kelly of Butler County stands nearly alone in his so-far effective lawsuit blocking certification because of the corruption baked into mailed ballots. In Oklahoma, although President Trump won 65 percent of the vote, Republican lawmakers filed legislation to strengthen state statutes while encouraging all legislators to pass photo ID and paper ballot laws.
Where are other state legislators in this contentious and endless election? Are they not concerned with the integrity of the vote, regardless of party affiliation? Did they miss the constitutional requirements in their oaths?
State legislative bodies nationwide must reclaim their authority to protect voters against fraud, political criminals, and overreaching activist judges. Legislators’ liberty comes from God, their authority from the Constitution, and their imperative from the people.
In November 2022, people will be voting for state representatives in 88 of the country’s 99 legislative bodies.
They are likely to remember who caused the chaos, who ignored it, and who tried to fix it.