Article II, Section 1 of the U.S. Constitution says [emphasis added], 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....I am not a lawyer, let alone Constitutional scholar. I welcome such scholars to engage and clarify what follows (suspecting that most of these scholars are currently retained by either Rs or Ds and therefore will not comment outside of legal proceedings).My point in what follows is about free expression of reasonable ideas, which is a set of ideas that includes elements that may be ultimately rejected by the U.S. Supreme Court as valid legal arguments. I am not using the term "reasonable" as a legal opinion
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Article II, Section 1 of the U.S. Constitution says [emphasis added],
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....
My point in what follows is about free expression of reasonable ideas, which is a set of ideas that includes elements that may be ultimately rejected by the U.S. Supreme Court as valid legal arguments. I am not using the term "reasonable" as a legal opinion because, to repeat, that is not my profession.
A reasonable assertion is that officials in the executive branch of the states, such as a Secretary of State certifying elections, are not part of "the Legislature." On this premise, a reasonable person could refer to any meaningful election procedure established by the executive branch without the approval of the state legislature as "illegal." Again, because passions are high, I must repeat that this is not a legal conclusion but a statement of what a reasonable person could say.
This reasonable statement could have been, and I suspect was, uttered before election day. Furthermore, this reasonable person could have publicly directed Trump supporters not to participate in those procedures and instead participate in procedures that HAD been established by state legislatures, such as in-person voting and absentee voting (i.e., ballots specifically requested by voters, as distinct from "mail-in" ballots).
Now that Election Day has passed, we have enough evidence to reasonably assert, if not prove, that Trump got more in-person and absentee votes than Biden did in the swing states. At the same time, it looks like Trump lost most of the swing states in terms of in-person + absentee + mailin.
Now let's look at four recent events in chronological order:
(1) Two days after the election, Trump claimed in a press conference that he won on "legal" votes.
(2) Trump said that the Supreme Court would likely be considering his argument.
(3) Trump's legal-votes claim was immediately described by "impartial media" as "a lie without evidence" and reeking of fascism that must be condemned by all. These impartial media further asserted that Trump had no path to the Supreme Court.
(4) Discussion or interpretation of Trump's legal theory was censored from Facebook, Twitter, etc., if it had any sympathy for Trump's argument.
I am disturbed by (3) and (4). All people should be allowed to make their case. Not everyone can be correct, which is why we have a court system. The Supreme Court may reject Trump's legal theory, but until then (at least) he should be allowed to articulate it in public.
By no means is it acceptable for members of the American Economic Association, who are not legal experts, to require me or anybody else without legal expertise to "condemn" Trump's assertion of what is "legal" even before it has its day in court. (Yes they are doing so; all, even nonexperts, who do not condemn are purportedly "accomplices.").
I understand that the President is not a random person and respect (not the same as agree with) the opinion that there "should" be tighter bounds on his speech than "free expression." But (1) looks like a reasonable (not the same as correct) assertion, although it might have been better communication for him to explain what I have explained here rather than packing so much into the single word "legal." (political communications are also not my profession).
Let me quote from some legal experts writing on this last month,
Might state executive branch officials also be so limited? This is a reasonable question and it is premature to condemn Trump or anyone else for asking it. Ironically, Democrats are asking exactly the same question about the U.S. Post Office.
[Although it is hardly relevant to the free-expression question, let me add that, like many of Trump's politically incorrect predictions, (2) will prove to be correct. His argument (1) will be compelling to many nonexperts and therefore it is desirable for the Supreme Court to weigh in].
[I also support the free expression of "unreasonable" ideas, but that is not relevant here].