In the last several months, Republican legislatures in several states have attempted to pass laws that would allow Republican dominated state legislatures to throw out election results that they do not like, and substitute alternate slates of electors who will vote for Republican candidates. These kinds of laws violate the United States Constitution. In this article I will briefly highlight a few key points that should be considered when arguing against these kinds of laws.

Article I, Section 4 of the Constitution states: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of [choosing] Senators.” This relatively brief passage offers states great leeway regarding issues such as where polling places are located, and how the process to register to vote should be managed. However, the courts have upheld that Federal legislation, such as the Voting Rights Act, and the 24th Amendment (which abolished poll taxes) are enforceable.

Article IV, Section 2 of the U.S. Constitution states, “The United States shall guarantee to every State in this Union a Republican form of fovernment, and shall protect each of them against Invasion.” This presents another problem for the courts to wrestle with regarding states that are heavily gerrymandered. In a Republic, the rights of the minority party are protected through the observance of the right to vote and be represented in the legislature. In the US system, that means adherence to Constitutional principles and the rule of law. Josef Stalin is famously quoted as once having said “It does not matter who is allowed to vote. What matters is who counts the votes.” and recent actions by Republican state legislatures clearly demonstrate the meaning of that statement. If a state that is dominated by one political party is able to use gerrymandering to establish control of state government, and to then toss out results of elections based on partisan political interests, then that state has effectively eliminated their Republican form of government and established one party rule. Compliance with our Federal Constitution requires that laws allowing the striking down of election results based upon the fever dreams of conspiracy theorists must be struck down, or the courts must take action against the practice of gerrymandering, to ensure a more equal representation of the minority party in elections. A policy of benign neglect is unacceptable.

Bills that allow legislatures to throw out election results would also violate 52 USC 20511(2)(B), which states: A person, including an election official, who in any election for Federal office—(2)knowingly and willfully deprives, defrauds, or attempts to deprive or defraud the residents of a State of a fair and impartially conducted election process, by—(B)the procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held…shall be fined in accordance with title 18 (which fines shall be paid into the general fund of the Treasury, miscellaneous receipts (pursuant to section 3302 of title 31), notwithstanding any other law), or imprisoned not more than 5 years, or both.” Trump loyalists have already demonstrated by the string of court cases brought by Trump’s lawyers following the 2020 elections, and their continuing “stop the steal” rhetoric that they cannot be counted on to act in good faith, or present legitimate arguments regarding election outcomes.

Another section that may apply to any effort by state legislatures that attempt to modify election results is 18 U.S. Code § 595 – Interference by administrative employees of Federal, State, or Territorial Governments. That section states: “Whoever, being a person employed in any administrative position by the United States, or by any department or agency thereof, or by the District of Columbia or any agency or instrumentality thereof, or by any State, Territory, or Possession of the United States, or any political subdivision, municipality, or agency thereof, or agency of such political subdivision or municipality (including any corporation owned or controlled by any State, Territory, or Possession of the United States or by any such political subdivision, municipality, or agency), in connection with any activity which is financed in whole or in part by loans or grants made by the United States, or any department or agency thereof, uses his official authority for the purpose of interfering with, or affecting, the nomination or the election of any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner, shall be fined under this title or imprisoned not more than one year, or both.” Initially, this section would apply to any executive branch employee of any state who acted in concert with state legislatures for the purpose of enabling their efforts to overturn election results. This section also raises a question for the courts, due to the statute’s use of the term “administrators” rather than the phrase “executive branch”. In government, “Administration” is defined as implementing legislative controls, ensuring compliance with regulations and determining the allocation of municipal, state or Federal resources. The review process that has been proposed by Republican state legislatures may be viewed as an “administrative review”. The question for the courts is: “when lawmakers grant themselves an administrative role in elections through legislation, and their role in that administrative review process has the potential to lead to acts that violate Federal Election laws, do those lawmakers – in violating the Supremacy Clause and other sections of the US Code, abdicate the benefit of legislative immunity at the state level, and become subject to penalties under 18 U.S. Code § 595?”

Allowing states to manipulate election outcomes through the use of extensive gerrymandering, and legislation that permits the manipulation of election results based upon the fever dreams and wild speculations of right-wing conspiracy theorists violates the Guarantee Clause of the Constitution by permitting the institution of single party rule, and denying voters of a state the opportunity to express their will through the electoral process. State laws that permit heavily partisan state legislatures to “throw out” election results they do not like therefore violate the Supremacy Clause of the US Constitution. Manipulating the results of an election to satisfy a partisan political interest, and claiming that your actions are justified by unfounded conspiracy theories and partisan supposition clearly constitutes the false tabulation of ballots, and violate 18 U.S. Code § 20511. State legislators who try to do an end run around Federal Election laws by passing laws that grant them a right to perform an administrative review of election results, and throw out results that do not suit their partisan political interests should be subject to penalties under 18 U.S. Code § 595.

Casting out legitimate ballots, and claiming you have a right to do so because of the fever dreams of right-wing conspiracy theorists and right-wing hack lawyers, is a crime against voters.