How the Constitution Caused and Solved January 6, 2020
Trump's Lawsuits Stress-Tested Flaws in the Constitution when Traditions and Norms Failed
Critics of Donald Trump accuse him of an attempted coup. However, all he did was exploit the weaknesses inherent in the Constitution, and most of the pundits and legal analysts are ashamed and afraid to admit this fact.
It all starts with Article II, Section 1:
“Each State shall appoint in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress…”
It continues with the 12th Amendment:
“The Electors shall meet in their respective states, and vote by ballot for President and Vice President…and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; — The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; — The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors, appointed…”
If no one received a majority of Electoral Votes, then it would get thrown into the House of Representatives where each State Delegation got one vote.
The Parties Absent From This Picture?
None of this text mentions the voters or the State Secretaries certifying election returns, or State Supreme Court Justices, or other participants in the drama that unfolded between November 4, 2020 and January 6, 2021. The Framers of the Constitution established the chain of authority to originate with each State’s Legislature who then appoint Electors who then vote and submit their choices to the President of the Senate (the Vice-President) who opens up the ballots to reveal the result.
Starting shorting after 1789, States began to allow their Citizens to vote for President, and they used these results for guidance to appoint the Electors. In 1832 South Carolina was the only State selecting its Electors without guidance from the voters. By 1880 every State choose its Electors based upon the election results of their voters. Therefore, relying upon the voters has been a tradition, but not a written requirement in the text of the Constitution.
Likewise, when George Washington retired after two terms in office, he established a tradition that no President serve more than two terms in office. That norm was broken by Franklin Roosevelt in 1940 when he won a third term in office. It took the ratification of the 22nd Amendment to put this two-term limitation into writing.
The Supreme Court has had 9 seats since 1869, but FDR tried and failed to pack the court with additional justices. Progressives frustrated by the Conservative rulings of the current Supreme Court are also advocating for packing the Court in violation of unwritten norms and traditions.
Donald Trump is following in this long tradition of violations of norms. His lawyers correctly advised him that the State Legislatures held the power to appoint Electors. Republican majorities in the Arizona, Georgia, Pennsylvania, Michigan, and Wisconsin Legislatures gave Trump the hope that these Legislators could reject the decisions of their Secretaries of State who certified Biden’s victories. Trump’s team hoped to create enough doubt about mail-in ballot fraud to give these Legislators the pretext to justify certifying a different slate of Electors.
A lot of ink has been spilled about how close this nation came to a coup, but the outcome was never in doubt. The reason was that the political self-interest of all the Republican State Legislators prevented them from reversing the verdicts of their Election Officials.
Most of these Legislators knew that they would be voted out of office at the next election if they were to brazenly over-turn the norm and tradition of following the decisions of their voters. They could spin all they wanted about fraud, but absent a smoking gun never produced by Trump’s team, they would never walk that plank.
The last remaining tool at Trump’s disposal was to intervene in the counting of the Electoral Votes by the Vice-President. Because we knew how the Electors voted on December 14, 2020 when they convened in their States to cast their votes, there was no suspense about who won. The counting of these ballots by the Vice-President on January 6, 2021 was a mere formality. The only remaining suspense at this time, was if a member from the House and another from the Senate raised an objection. Then their objection could be debated:
“While the tellers announce the results, Members may object to the returns from any individual state as they are announced. Objections to individual state returns must be made in writing by at least one Member each of the Senate and House of Representatives. If an objection meets these requirements, the joint session recesses and the two houses separate and debate the question in their respective chambers for a maximum of two hours. The two houses then vote separately to accept or reject the objection. They then reassemble in joint session, and announce the results of their respective votes. An objection to a state’s electoral vote must be approved by both houses in order for any contested votes to be excluded.”
This was the slim reed upon which Trump’s hopes rested. However, the invasion of the Capitol and disruption of the proceedings incinerated any possibility that such an objection would prevail.
The genius of the Constitution lies in betting upon the political self-interest of State Legislators to be in charge of selecting the Electors. The die was cast before December 14 when State Legislators ignored Trump’s pleas to change the slates of Electors. However, the flaw of the Constitution was that it relied too much upon norms and traditions to execute a peaceful transition of power. Trump stress-tested the Constitution, and America looked silly while the drama unfolded. It’s obvious that our Constitution is due for an upgrade.
The US Re-Constitution provides these upgrades in Articles 2 and 12.
David Barulich