A Misapprehension

John Yoo, Senate Majority Leader Mitch McConnell (R, KY), and others, are suggesting that, given the apparent irregularities (because I’m being polite) in several States’ ballot acceptance and counting procedures, “the courts may decide the election.”

McConnell, et al., misunderstand the situation. The courts won’t decide anything. This election has been decided by American voters. It may take the courts to enforce our decision, though.

There would seem to be strong cases, too, for reversing those…irregularities. Our Constitution’s Article I, Section 4 says pretty explicitly that State legislatures set the Times, Places and Manner of holding Elections… and that Congress may at any time by Law make or alter such Regulations. There’s no wiggle room there.

State non-legislative officials—elections board commissioners, Secretaries of State, governors, et al.—do not have the legal capacity to alter States’ laws, for instance, deadlines for receiving ballots, requirements regarding signature comparison and witness signatures on absentee ballots and mail-in ballots. They do not have that capacity even under the guise of emergencies like the Wuhan Virus situation.

In particular, the virus situation was in full bore by last spring, and both Congress and the States’ legislatures have had months in which to adjust election laws to account for the virus’ impact—and they universally chose to make no adjustments.

Those non-legislative officials’ adjustments are not merely illegal, they’re unconstitutional.

Full stop.

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