Bohlken: It’s Not Over

In a recent article, Shane Vander Hart argued that “It’s Over” for President Trump. Vander Hart essentially argues that, no matter how overwhelming the evidence is that the election was stolen through a combination of voter fraud, election fraud, violations of state and federal constitutions, and other irregularities, it’s too late to challenge electors in Congress and Republicans just have to accept a stolen election for President as a fait accompli.  

I disagree. An ancient legal maxim posits “there is no right without a remedy”. Americans have a right to a free and fair election where legal votes are counted and illegal votes are discarded. Actions taken by state legislatures or Congress or both may yet yield an electoral vote count result based on the counting of all legal votes cast by the voters. 

I am persuaded that the election in the battleground states of Pennsylvania, Michigan, Georgia, Nevada, Arizona and Wisconsin was stolen through a variety of means. There is overwhelming evidence of widespread fraud and illegality. An excellent summary of the evidence, The Immaculate Deception, has been provided by Peter Navarro. The Election Law subcommittee of the Georgia Senate Judiciary Committee has issued a scathing report on election irregularities in that state. It has also requested Fulton County, Georgia, which includes Atlanta, to turn over all absentee ballots for a forensic audit. The Arizona legislature has received evidence of fraud sufficient to cause it to engage in ongoing litigation to subpoena the voting machines in Maricopa County for examination. A group of Pennsylvania legislators has just discovered that the certified vote total there is 200000 over the number of people who actually voted. They have also called on Senate Majority Leader Mitch McConnell (R-Ky.) and Rep. Kevin McCarthy to dispute the Pennsylvania election results. Statistical analyses pointing to the probability of fraud are available here, here, here, here, here, here, here and here.

What initially concerned me and others were the huge dumps of votes for Biden on election night, after the counting had supposedly stopped. Pennsylvania is just one example. Ret. Col. Phil Waldron, a former Army officer with a background in information and electronic warfare testified that dumps totaling 570,000 votes for Biden and 3200 votes for Trump were evidence of voter fraud. Biden supposedly won the state by 1.18 percent. How could a sample of 573200 votes result in 99% Biden and less than 1% Trump? While there might be isolated precincts that have lopsided votes for one candidate or the other, does anyone seriously believe there is any combination of precincts anywhere in America with 573200 impartially counted votes where Donald Trump would get less than 1% of the vote? 

 In Gettysburg, Gregory Stenstrom, a forensic computer scientist, testified how he saw a forensically destructive process in Delaware County, adjacent to Philadelphia, where unauthorized persons walked around plugging smartcards into voting machines. He unsuccessfully tried to get the chief law enforcement officer on site and the clerk of elections to intervene or investigate. At least 24 of these USB cards are now missing. He reported that “all chain of custody logs, records, yellow sheets, everything was gone . . . All forensic evidence, all custody sheets in Delaware County are gone.” He and a Democrat poll watcher witnessed a room with 70000 unprocessed absentee ballots after all the absentee ballots were supposedly counted.  

Now let’s take a closer look at Shane Vander Hart’s legal analysis. It is important to remember it is Congress who will be deciding any legal questions raised by it’s consideration of the votes submitted by the electors of the various states or challenges to those votes.  

The portion of Article 2, section 1, that has not been substituted by the 12th Amendment provides that “Each State shall appoint [electors], in such Manner as the Legislature thereof may direct”. It does not provide any limit on what that manner is. There is nothing in this section or the 12th Amendment which prohibits a legislature from convening in a battleground state, decertifying previously chosen electors on the basis of fraud, and then certifying new ones. Even in the absence of such action, Congress still has the power to act to stop a stolen election.

Mr. Vander Hart correctly concedes that, “According to the 12th Amendment, the House could supplant the candidate for President who has a plurality if a majority is not reached. “ He then argues, “That is not the case”. That may not be the case now, but it could be the case on January 6th. 

After quoting the 1887 Electoral College Act, 3 U.S.C. section 15, Mr. Vander Hart notes that act states, “no electoral vote or votes from any State which shall been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected.” 

Then he notes that the Act provides, in effect, that “Congress can reject the vote or votes if they concurrently vote that those electoral votes were not ‘regularly given’ and ‘lawfully certified.’” He finds that these provisions are “convoluted” because they prohibit, under certain circumstances, the rejection of electoral votes, while allowing them under other circumstances.

Mr. Vander Hart claims that 3 U.S.C. Section 6 “spells out the criteria ‘regularly given’ and ’lawfully certified’ electoral votes clearly.” I disagree. Section 6 does not provide specific definitions or criteria for ‘regularly given’ and ’lawfully certified’ electoral votes and does not even use those phrases. It actually provides that “It shall be the duty of the executive of each State, as soon as practicable after the conclusion of the appointment of the electors in such State by the final ascertainment, under and in pursuance of the laws of such State providing for such ascertainment” to communicate a certificate of such electors to the archivist of the United States and to the electors themselves. 3 U.S.C. Section 6 (emphasis added). It also provides that “if there shall have been any final determination in a State in the manner provided for by law of a controversy or contest concerning the appointment of all or any of the electors of such State, it shall be the duty of the executive of such State, as soon as practicable after such determination, to communicate under the seal of the State to the Archivist of the United States a certificate of such determination”. Id.

Every state prohibits voter and election fraud. There are also allegations that state constitutional provisions have been violated. Given that there are (a) ongoing judicial and/or legislative proceedings on election fraud or other violations in all the above states, and (b) substantial evidence and allegations of fraud and illegality have been ignored, how can it be said there is a valid “final ascertainment” or “final determination” of electors? How can it be said those electoral votes were “regularly given” and “lawfully certified”? Congress can determine that there has been no valid final ascertainment or final determination of electors in the challenged battleground states.  

Mr. Vander Hart also makes reference to 3 U.S.C. section 5, contending that it provides that “the final determination for controversies over electors shall be determined at least six days before the Electoral College votes. This is called Safe Harbor day, and it was on December 8, 2020.”

This section actually states:

If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.

3 U.S.C. section 5.  

The safe harbor date only applies if a final determination has been made. Again, Mr. Vander Hart assumes that a valid final determination, consistent with the state laws, has already been made when there are actually ongoing legislative and/or judicial procedures challenging the election results and substantial evidence and allegations of fraud and illegality have been ignored. Congress may come to a different conclusion as to whether a valid and final determination has actually been made.

The greatest barrier, however, to Congress objecting to battleground state Biden electors and either substituting Trump electors or, if necessary, after rejecting Biden electors, re-electing President Trump under the procedures provided by the 12th Amendment, is not to be found in the language of any constitutional or statutory provision. Do the Republican Senators and Representatives, and any Democrats who value an honest election above their political party affiliation, have the political will, the courage, to thwart a stolen election? The false view has been widely propagandized in the mainstream press that there is either no evidence of fraud or insufficient evidence to overturn the election. The only way of overcoming this is for the voters to contact their Senators and Representatives and insist that the Biden electoral votes from battleground states involved in widespread fraud and illegality be rejected and that Trump be re-elected under 12th Amendment. procedures. If we do not wish to surrender to fraud and illegality, this is the action that citizens must take now. The contact for Senator Grassley is here, for Senator Ernst here, for Representative Cindy Axne here, for Representative Randy Feenstra here, Representative Mariannette Miller Meeks here and Representative Ashley Hinson here.