They're Going to Steal it Again... and We Cannot Let that Happen

In 2029, fifteen years will have passed since Donald Trump came down the golden escalator. There can be no more blunders or wasted opportunities.

Owen Lee is an undergraduate at The Catholic University of America, where he studies American politics.

Last week, Donald Trump was convicted of thirty four felony counts of falsifying business records. This is the first time in history that a former president and the leading contender for the presidency has been charged and convicted of a crime. What matters in the wake of this trial’s historic outcome is not the minutia or the actual results — the entire trial was a total sham — full of improper prosecutorial and judicial discretion. However, the harsh truth is that we should not have been so soft on our opponents, which ultimately led to our defeat in this situation.

Conservatives need to start by understanding and learning from just how hard we blundered during the end of the first Trump Administration. Since 2012, Republicans have held every branch of the federal government in varying combinations, and they did nothing with their power.

Republicans never followed through on appointing a special prosecutor to throw Hillary Clinton in jail, nor was Hunter Biden, and by proxy Joe Biden, ever investigated, charged, or convicted in light of the revelations from the Hunter Biden Laptop. Not to mention Kevin McCarthy, as Speaker of a Republican majority in the House, never issued one subpoena or created committees to investigate Republicans opponents.

Let us contrast this with the Democrats, who spied on the Trump Campaign throughout 2015 and 2016 using FISA warrants under the Obama Administration, accused Trump of colluding with Russia, and used the January 6th committee in Congress to wage lawfare against Trump and his allies. What is more, the Biden Administration has now weaponized the Department of Justice to target Trump with countless charges across multiple jurisdictions.

The lesson in this contrast is clear: Republicans, if they take power in 2025, must become bold in their use of novel legal theories and the government’s apparatus against Democrats. For inspiration, we must look back at what could have been in 2020 if Republicans had been bold and dynamic in using lawfare to prevent a Joe Biden Presidency. 

As we all well remember from the 2020 election, the delayed, controversial, and extremely close results from the states of Pennsylvania, Michigan, Wisconsin, Georgia, and Arizona indicated that, as the results stood, Joe Biden would win the Electoral College and become the 46th President on January 20th, 2021.

However, Trump attempted to challenge the allocation of these electors to Joe Biden on the grounds that the fidelity of each state’s election was irreversibly damaged by the nature in which the vote in these states was conducted and tabulated.

Despite popular claims to the contrary, Trump did possess several legal and constitutional procedural avenues related to the Congressional certification of the Electoral College. If any one of which were pursued, a different outcome of the 2020 presidential election could have resulted.

The Constitution is clear that it is the sole authority of a state’s legislature to decide how to appoint and send a slate of electors to cast that state’s electoral votes for president and vice president. Over our country’s history, states have largely chosen to delegate the appointment of electors to the people of that state by popular vote.

However, it should not be forgotten that legislatures can and have reclaimed from the people this power to appoint and choose electors. It was not until 1824 that many states had delegated the choosing of their electors to the people, and not until after the Civil War that the final state legislature, South Carolina, delegated its authority to a popular vote.

Furthermore, the Electoral Count Act of 1887 (ECA) unconstitutionally attempts to limit or share a state legislature’s authority by requiring the governor of a state to approve its electors with a certificate of ascertainment. The states and Congress were well within their rights to add to the election procedures spelled out in the Constitution by passing legislation, but multiple sections of the ECA are in direct contradiction to and abrogate the constitutional role of the state legislatures as spelled out in Article II and Amendment XII.

Thus, said sections are in violation of the supremacy clause and are unconstitutional. Republican state legislatures in the five contested states had the right to appoint and send alternate slates of electors to cast their state’s electoral votes for Trump, regardless of the outcome of the popular vote. Furthermore, Trump was also well within his rights to call on Republican state legislatures to take this course of action.

The ECA enshrined into law the procedure for objecting to electors during the joint session of the House and Senate for the certification of the Electoral College vote, something informally practiced since before 1865, and that came up extensively from the election of 1876.

The law holds that upon the objection, in writing, by one representative and one senator to the certification of a state’s electoral votes, each chamber must withdraw into separate sessions to consider the objections. To reject a state’s electors both chambers must agree to do so; objections must be resolved before the process can continue to the certification of the next state’s electors.

The primary grounds for these objections in 2020 were that the changes to state election laws in Pennsylvania and Arizona by the state executive and judicial branches, and not the legislatures, were unconstitutional. Thus, those state’s electors were appointed by unconstitutionally run elections, and their votes cast for president and vice president were invalid.

The ECA mandates that electors are “lawfully certified” and their votes “regularly given. These are the only grounds on which Congressmen can make objections. Since the state’s electors were appointed by an invalid delegation of the state legislature's authority, they should not have been “lawfully certified” by their respective governors.

The language of Amendment XII to Article II of the Constitution is also clear on the authority and discretion of the vice president in the opening of the certificates and counting of the votes: “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 language here is damning. The vice president, who presides over the joint session of Congress as President of the Senate, is to whom the certificates are directed, and it is he who shall, not can, may, or possibly, but shall, open and count all of the votes.

Not only does the Constitution insist on the vice president’s role in the process, but it excludes others as mere spectator, similar to how the Constitution excludes anyone but the state legislatures from choosing how to appoint their state’s electors. Since the vice president is the sole authority on opening and counting the electoral vote certificates, there are few limiting principles to his role in the process absent serious malfeasance by him or no competing slates of electors.

Obviously, none of these strategies were given serious consideration, otherwise, we would be living in a different country and world at the moment. In hindsight of Joe Biden’s first term we can now fully appreciate just how big of an opportunity Republicans had and blundered in 2020.

Now, by some miracle, providence, or accident of history, Trump has made a surprising comeback and will given a second chance on the ballot. There are rarely second chances or do-overs in politics, but we have this one. This November, there can be no “declining” to take action because we “do not deserve this second chance” — we will certainly not get a third.

Conservatives need to be smart, bold, and start playing to win — much like Democrats have done with convicting Trump. Otherwise, a second Trump Administration will come, be subverted, and quickly flutter away. There is also no question the Democrats are planning to steal another election, too. In 2029, fifteen years will have passed since Donald Trump came down the golden escalator. There can be no more blunders or wasted opportunities.

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