What is the significance of Congressman Louie Gohmert’s recent election lawsuit? How could it impact a lot more than just the Vice President’s role? What will happen on January 6th when Congress meets?
In this episode, we sit down with constitutional attorney Rick Green, a former Texas state representative and co-founder of the Patriot Academy, to break down what the Constitution has to say about what’s going on.
This is American Thought Leaders, and I’m Jan Jekielek.
Jan Jekielek: Rick Green, such a pleasure to have you on American Thought Leaders.
Rick Green: My pleasure. Thanks for having me on and the chance to talk about what I love about the Constitution.
Mr. Jekielek: Well, right, exactly. You’re a constitutional lawyer. You’re, in fact, a constitutional coach, the “Constitution Coach.” And right now, there’s a lot of questions actually about what the Constitution has to say about a very important date coming up, January 6, when there will be ostensibly an electoral count of some sort, in Congress. There’s so many different ideas out there about what will happen that day, everything from business as usual all the way through to dramatic changes and unprecedented approaches to dealing with these competing slates of electors. So, tell me what you think is going on here?
Mr. Green: Well, yesterday a friend of mine asked, “Can you give me a ‘Reader’s Digest’ version of what could possibly happen?” But there are so many variables here, depending on which rules are followed. The Constitution is pretty simple on this. It doesn’t give a lot of details, [it] simply says that the vice president, as president of the Senate, will preside over this; the vice president, as president of the Senate will open the ballots and count the ballots, and the only job of Congress is to be “present.” So if you stick with that, then it really is in Mike Pence’s hands.
When you open up historical precedent, and you look at what has happened over the course of our Republic, we’ve seen a little bit of both. We’ve seen the vice president use that power unilaterally without input from the Congress. That’s happened with Jefferson, with Nixon, and even with Gore in 2000. Then we’ve also seen the Congress weigh in and have differing ways of doing this, sometimes one chamber objecting, sometimes both chambers objecting.
They tried to clarify all this in 1887, with a law they call the Electoral Count Act, it really should be called the electoral confusion act, because the only thing everybody agrees on is that nobody agrees on how this thing should be read and how it should work. That’s why there are lawsuits to try to clarify that. That’s why January 6 is going to be very fun to watch. Get out the popcorn, because there’s no telling what’s going to happen.
Mr. Jekielek: Well, for starters, we have seven states that have submitted alternate slates of electors. So, again, for most people out there, that’s something they haven’t heard of before. Something that sows is a lot of confusion. What does this mean, how does this work?
Rick Green: Let’s look back in history first on this. The last time that happened was 1960, the Nixon-Kennedy race, super close race, probably closer even then the race that we’re dealing with right now. Hawaii was the one that sent two slates of electors. Republicans first sent theirs, because in the original count Nixon won. There was a recount, and Kennedy won the recount. A few weeks later, the Democrats sent their slate of electors. So you had both slates show up in Washington. Nixon made the unilateral decision to not hear objections, even though there were some. He counted the Democrats slate instead of the Republican slate. He said, “You know, we’re moving on.”
You can go back to 1857, when they had, frankly, a total free-for-all on how to deal with this, because you had three states that sent two sets of electors and you also had objections to one elector out of Oregon. In that case, they couldn’t decide what to do, so they created a commission; five House members, five Senate members and five Supreme Court justices, and they let that commission decide for them. There are other times where there’s been multiple slates.
In this case, you’ve got multiple slates from seven states. Some of those states, really four of those seven, you have really clear out front violation of state law and the Constitution itself, where you had a governor or a secretary of state change election law, without the legislature involved. The Constitution very clearly gives the power to the state legislature. So there’s no question they broke the law in this case and violated the Constitution.
It really would be fairly easy for the vice president to say, “In those states, they messed up their election so bad by changing the law at the last minute, I’m not even going to count those.” That has happened before. It could happen in this case, depending on how many states Vice President Pence would do that with, it could determine the outcome of this election. So having two slates of electors really does open up some variables here—not new, it’s happened before. It’s not unprecedented, but it is confusing. There’s not a very clear way this would be handled either by the vice president or by the Congress.
Mr. Jekielek: Maybe you can clarify this. For me, it’s my understanding that it’s the state legislatures that are ultimately responsible for submitting the electors, like they have the ultimate responsibility for the decision of what gets submitted or not and what’s legitimate or not. There’s been suggestions that there should be these special sessions of legislatures. None of that has happened. Trump lawyer Rudy Giuliani has suggested there doesn’t need to be a special session, they can just get together at will, presumably with some sort of quorum—perhaps you can tell me how that works—and vote anyhow, on what they’re going to do. So how does this whole state legislature involvement work?
Rick Green: This is what we call a Plenary Power to the state legislature. The Supreme Court has actually said that three times, that the state legislature has this Plenary Power, and that it can take it back quote, “At any time.” They even said that as recently as this summer, and then back in the Bush vs. Gore decision in 2000, and then about 100 years ago, in a case called MacPherson.
What that means is; it is absolutely, under the Constitution, the legislature’s right, duty, and power to choose how the electors are chosen. Because they can take that back at any time—let’s take Pennsylvania for instance—those legislators absolutely have the right and duty to say, “Hey this election was so messed up by the governor and the secretary of state and, frankly, the state Supreme Court, by changing the rules at the last minute, we cannot determine the outcome based on what they’re telling us. So we’re going to choose the electors ourselves.”
What you’re asking about is very specifically—and I think Rob Nadolson is one of the greatest constitutional scholars alive today and I think he’s right about this—that they do not have to wait for the governor to call them into session for this. This is a power given to them directly by the Constitution. We the people gave them this power, and they can exercise it without the governor. The governor has no role in choosing the electors. If they’re only coming together for that purpose, they could come together and choose those electors.
We’ve been asking for this, frankly, since the week after the election in November. And unfortunately, the legislators have not chosen to do that, despite all the problems that had been shown in the hearings. You’ve had some legislators really calling for this and trying to make it happen. But frankly, we need leadership. Even the Republican level in the States has prevented it from happening.
Mr. Jekielek: Senator Josh Hawley has indicated that he is going to object to at least one of the states, and that’s another thing I want to ask you about how that all works. It’s also been countered by Susan Collins, where basically she said, “Look, all these lawsuits that have been out there have been dismissed or most of the lawsuits out there have been dismissed. The courts aren’t seeing any of these challenges as legitimate.” How do you respond to this type of accusation?
Rick Green: Let’s first talk about the courts and what was said there. The courts have completely failed us in 2020—go back to the COVID fascism of governors acting like dictators and the court not stopping that. Really one of the most important, maybe the most important function of the court is to defend the Constitution. The courts have been way outside of their jurisdiction for 50 years doing things that they were not empowered to do, not authorized by the Constitution to do.
This year, all year long, they’ve had challenges where they could do the one thing they’re supposed to do. They’ve refused to do so and kicked the can down the road and let these governors act like dictators. They got used to it, its kind of like a drug. They decided to do it with the elections as well. I would say that just because the court hasn’t acted up till now, doesn’t mean they can’t get this right, and do their duty under the Constitution and actually uphold the rule of law and defend the Constitution.
They haven’t even looked at the facts. They haven’t even had an actual case, an actual hearing where they could look at these things, which is just shameful. They could still do that. There’s still time to do that, doing that with the case that Louie Gohmert has filed along with the Arizona electors, or even after January 6th, there’s no reason that they couldn’t write the ship if it is proven that the law was broken, which is pretty easy to prove here. If fraud is proven, which I think it can be proven in many of these states, then the court could still correct this between January 6th and January 20th. To Senator Hawley and the discussion in the Senate—they have the opportunity, absolutely, to object, to raise these issues, and to do what the court failed to do.
Mr. Jekielek: So how does this work? Does each House member and Senator need to object to each specific state? How does that work?
Rick Green: I hate to be like an economist and say on one hand this, and on the other hand that, but I have to because there’s really two sets of rules that could potentially take place here. This 1887 law that I’ve been talking about, that Electoral Count Act, electoral confusion act, as I like to call it, if they try to follow that—and again, many interpretations on how you would follow that—but if they do try to follow that, the most popular interpretation is that; yes, one House member and one Senate member would have to object. Then once they object, the Senate will go across the Rotunda back to their chamber and debate the issue and the House will stay and debate the issue.
Some interpret the statute to say that both chambers would have to come back and say, “Yes, Arizona messed it up, We’re not going to count those or Pennsylvania.” Or [count] whichever state is being discussed at that time. Some interpret the statute to say, “No, that part doesn’t apply in this scenario where there’s two slates of electors.” So just one objection or one chamber saying no to the electors could prevent those electors from being counted.
So it is incredibly confusing. I think there’s one important thing to consider here, and that’s if we try to follow the 1887 law. What Louie Gohmert has raised in his lawsuit, and I’ve known Congressman Gohmert, for years. He’s a he’s a former judge, he knows the law. He knows the Constitution. His lawsuit is quite brilliant, actually. He raises some issues that Democrats and Republicans have raised for centuries.
You can even go back to the journal and you can see where the House and Senate debated this very issue. Does the vice president have the power to reject or accept electors without the House or Senate having a say? There were many House members and Senate members—in fact, they even came back in 1821, after a great debate and said, “No, we don’t have any power, the House and Senate together in session has no power on this, and separately, has no power on this.”
So they tried to fix all that with that 1887 law. What Congressman Gohmert has raised is a really important question. Can you use a federal law to strip power from someone that the Constitution has given power to and give that power to other actors in the federal government or members of the federal government?
Let’s put that in context. Let’s just say that the Congress decided to pass a law today and say that the President can no longer pardon anyone? Well, hopefully, we would all say, “I think you need a constitutional amendment to do that.” You can’t do that with federal law. Let’s say they passed a federal law to say that the President can no longer appoint Supreme Court justices. We would absolutely say they’ve got to have a constitutional amendment to do that.
In the same way, what Louie Gohmert is saying that this 1887 law used an act of Congress, not a constitutional amendment, to strip power from the vice president and spread it out to the House and Senate, who the founders did not give power to, in this case of opening and counting electors. So that’s a really, really important thing that Louie Gohmert is raising. How the court will see it, we’ll see, but I think Gohmert’s right constitutionally and historically.
It’s a really bad idea to just let Congress decide to strip power from someone that the Constitution is given power to. Clear as mud, I know, but that’s literally what’s at stake here. I think that’s why it’s great that Louie Gohmert sued before January 6. Potentially, we could get a decision from that federal judge prior to January 6, maybe the day before, and it’ll help guide the process a little bit. Then those that want to object after the process can take that all the way to Supreme Court. We’ll see if they’re willing to weigh in at that point.
Mr. Jekielek: This is fascinating, but also deeply troubling, because the concept at this point of January 6, and what might happen that day is obviously a very important issue in the country, a very divisive issue in the country. It sounds like we might not actually have a conclusion, even based on the rules that exist at multiple levels, from what you’re telling me.
Rick Green: I think you’re right. If the Constitution is upheld here, if they actually follow the precedent and the history in the Constitution, there is going to be some very unhappy people either way, right? It’s not really about Trump or Biden. It’s about the Constitution and actually following this process. I’m hoping that one of the things that happens here is the American people realize this does need to be better defined.
We need a constitutional amendment here to lay out this process more clearly, so that there’s not this uncertainty. It hasn’t mattered since 1887, honestly. The law was passed and there hasn’t been a need to clarify it until this race. There wasn’t a situation where the two sets of electors would literally change the outcome depending on which way you go. Now we’re finally facing that situation.
It’s a great reason to have an Article Five convention of states and actually propose an amendment to clean up this language, and create a process here that’s very clear. Maybe that could happen, but you’re right, the uncertainty is bad for our country. Let’s face it, this is not good. No matter what, half the country is going to be upset with whatever the outcome is on January 6.
If Republicans don’t fight for their candidate, roughly 75 million people in America are going to be unhappy with the outcome. If Democrats don’t fight for their side, or they’re overruled based on the Constitution, their side is going to be very upset. But what can bring us together afterwards is saying, “Okay, look, this was confusing. This was a mess. Let’s fix it with a constitutional amendment and make sure that next time, it’s more clear in a close race how this thing’s going to turn out.”
Mr. Jekielek: Can you imagine a situation between now and the sixth, where legislatures meet to make some decisions?
Rick Green: There are a lot of people calling on the legislators to still do that this weekend. Get it done. Get together the day before if you have to, and rush those electors to Washington DC. You still have time. I’ve said since the week after the election, they could remove all uncertainty. They could take the most clear constitutional path, take the decision out of the courts hands, and take the decision out of Congress’ hands.
We’ve always wanted, the founders wanted, and we should want the states to make these decisions. But because those seven states are in total confusion right now, the outcome is in total confusion. The legislators need to step up. They still have time, but they’re running out of time. If one of the states would do it, I think the other states would follow suit very quickly. But boy, that window is closing very fast.
Mr. Jekielek: What number of lawsuits that have been filed surrounding election irregularities and prospective fraud have you had a chance to look at? Are you aware of all of them? I want to ask you a few questions about this.
Rick Green: [I’m] definitely not aware of all of them. I’ve tried to follow them as best I can. The Pennsylvania one is probably the one I follow the closest because it was the first one filed and actually we’ve been watching that one since before the election. But yes, there’s so many lawsuits. There’s still some out there that the Supreme Court could hear and that the Supreme Court’s even set a schedule for, but it’s after January 6th.
I have said and I don’t think this is that crazy—look, regardless of who’s sworn in on January 20, if the Supreme Court ends up determining that the election was counted wrong, went the wrong way based on clear evidence, they could always reverse that decision. I don’t think that’s impossible to do. That would be unprecedented. Up to this point. everything that’s happened, has happened in the past. That would be something that’s never happened before but could be done following the Constitution.
We’ll see where they go with all these lawsuits. But I do think they’re very good claims out there that need to be heard. There’s legitimate claims of fraud. There’s absolute rock solid claims of the law not being followed by election judges locally and state actors like governors. The Supreme Court not acting on that, is to say “We’re okay with lawlessness.” Congressmen and senators not objecting to that, is to say, “We’re okay with lawlessness.” So it would be a real mistake to just gloss over this and cause half the country to not have faith in the electoral process.
Mr. Jekielek: For example, this lawsuit that was filed directly to the Supreme Court out of Texas, that lawsuit was dismissed based on [lack of] standing, so essentially on a technicality, right? It was not on the substance of the lawsuit. So how many of the suits that you’re aware of are being dismissed based on technicalities versus the substance? That’s a big question I have and I don’t have a picture of this.
Rick Green: I think all of them. I don’t think there’s yet been a case dismissed based on substance. It’s all been technicalities. What’s really annoying about this whole standing issue? I’m a federalist. I would be all for the Supreme Court saying, “No, each state gets to decide on their own. And we’re not going to meddle in that.” If they had only done that for the last 50 years. The problem is that the federal courts have tied the hands of a lot of these states, they’ve literally micro-managed that election process. They prevented voter ID and other things, they’ve stacked the deck, if you will. You can’t meddle in the election process like that.
Then when it comes to a big decision, they say, “Oh, we don’t want anything to do with this. We’re going to use this technicality to not give standing.” That’s the real problem I have here. It’s kind of a heads they win, tails we lose situation—the way the courts have treated it. Even this year, lower level courts are dictating how elections are going to take place. It’s really a cop-out by the Supreme Court, in my opinion, to say that they did not have standing. They should have heard it on the merits, especially with the way the courts have meddled in the election process.
Mr. Jekielek: Well, presumably, there’s other cases where the Supreme Court will be able to at least have the opportunity to look at the substance.
Rick Green: Yes, and if I could add to that. The case by Louie Gohmert, that’s why it was so brilliant to bring in those Arizona electors. You have people that definitely have standing in this particular case. I’m hoping that’s the one that gets there. I would encourage people to read the case. They will learn so much about that 1887 “confusion act,” they will learn about the history of the vice president’s powers.
If I could go down one rabbit trail here, they’ll learn about the debate over how the House should vote, if the House is going to have any say in who the president is, or any say in which electors are rejected, or accepted. Because most people realize at this point, there’s been enough discussion over the last few weeks, that if there’s a contingent election, if nobody gets to 270, or nobody gets to whatever the definition of a majority of the electors chosen turns out to be, then it goes to the House, but the House votes by state. It’s not going to be Nancy Pelosi and 434 colleagues voting and deciding that by a slim margin and the Democrats win. It’ll be by state, and Trump would win in that case.
Louie Gohmert raises the issue in this lawsuit to say, if that’s the only direction given by the Constitution on how the house would vote in any of these scenarios, then they have to vote that way on the question of rejecting or accepting electors as well. That’s a big game changer and what a lot of people have predicted would happen here. Most people say the Democrat House is not going to reject the Pennsylvania Democrat electors. But if the House has to vote by state, absolutely, yes, they would reject those electors. So even if the court only decides that one technical issue in the Gohmert suit and they ignore all of the other issues, that could absolutely change the outcome of what happens on January 6th. There’s a lot of rabbit trails here and where this could go, but the Gohmert suit is very, very important to watch.
Mr. Jekielek: You’re basically saying this scenario was actually outlined originally by Congressman Mo Brooks a while back on an episode of American Thought Leaders, and I think on the floor in the House—this scenario where certain legislatures decide this was just too complicated a situation. We feel there were irregularities. We don’t know really what’s going on. We’re just not submitting electors. Then there isn’t this clear majority of 270. Then it triggers this House vote, one vote per state. But you’re saying that this could actually be the way it’s done after these objections come up in the House itself, and the Senate?
Rick Green: Correct. In fact, that’s one of the things that Gohmert is asking for in his lawsuit is to get a ruling on that, so that it would guide the House on how they would vote in this situation. What Congressman Brooks has been saying from the beginning is if we try to follow the 1887 law, then we absolutely have the right to object and we’re going to end up having to debate this issue. Gohmert’s suit is the first time I’ve seen anybody raise the issue of—OK, if we do that, then how do we actually vote? And when we do, it should be one vote per state.
Mo Brooks may have already been onto that, in fact. He and Gohmert have probably been talking about this. I’m sure they have. But that would really change what happens over there. And there’s no guidance in the Constitution itself, other than how they would vote if it was actually choosing the president, if we had less than 270.
I hate to keep going down rabbit trails, but this issue of 270 is even in question, because what the 12th Amendment says, is that you’ve got to have a majority of the electors chosen. Well, if we throw out seven of these states, and you have 82 less electors, is 538 no longer the whole number of electors chosen? Therefore, if all seven states are thrown out, or even if six of the seven were thrown out, then Donald Trump would have a slight majority in the electoral college and win without even going to the House for a vote. But if you say the whole number of electors is still 538, because those states tried to choose electors, then nobody gets 270.
That’s when it goes to the House. And I hate to keep doing this. It’s happened both ways. It has! We’ve actually had times where an elector was thrown out, and that vote was still in the whole number, so it was still part of the denominator. We’ve had times where electors were thrown out, and they actually reduced the whole number of electors. That’s why everything is literally up for grabs. That’s why it’s so important to get a ruling, because I think it’s not likely that the House and Senate would agree on how to count, how to move forward. They couldn’t do it in 1876. That’s why they created that commission, because they couldn’t agree on what the outcome would be. So it’d be nice if we had a rule in here to at least dictate the rules of how this process will play out.
Mr. Jekielek: This is now really fascinating, because you’re basically suggesting, because of different political inclinations, the House and the Senate could have different approaches, and that will force some kind of ruling.
Rick Green: Yes, exactly. What happens if the Senate—and I don’t put a lot of faith in this because I don’t think we have a lot of Republican Senators with enough backbone to really fight this battle as it should be fought—but if they did, right now, it’s 50-48. If Loeffler and Perdue win in Georgia, and they are somehow seated that fast, then it would be 52-48. If somehow they lose, and the others are seated that fast, then it’s a 50-50 tie, and Mike Pence is breaking the tie every time.
But under any of those scenarios, you’ve got to have some real cohesion among the Republican Senators, which I don’t think is likely. But if that happened, and they dug in and said, “Hey, we’re going to follow the Constitution here, and we’re going to object to these states, and we’re not going to approve them.” But then the House did approve them, well, then what happens? Are they approved or not approved?
The 1887 law is literally interpreted under all three scenarios. It’s literally interpreted by some people to say, “Well, if the Senate objects, it’s not received. If the House objects is not received.” Some say both have to agree to the objection for it not to be received. Then there are those of us that say, “The 1887 law is unconstitutional, you can’t strip the power from the vice president. He’s the one that decides whether or not those votes will be accepted, or rejected.” So, there’s literally multiple scenarios that could happen here, which is why having that ruling could be very important.
Mr. Jekielek: Going back to Senator Hawley now. He’s indicated that he’s objecting to Pennsylvania, certainly. Both a Senator and a House member would need to object to each state to basically trigger this debate on each state, is that how it works?
Rick Green: Yes, based on the 1887 laws, if we try to follow that crazy wording in there, then most people agree you got to have an objector from each chamber. If you’re going to follow that, and it’s not going to be the vice president making the decisions, that makes sense anyway, right? Because if no one in the Senate is going to object, then you’re probably not going to win that battle anyway. You need at least one to object just to get into that debate.
I tell you what I think should happen. I’ve given you a lot of scenarios on what could happen, depending on the interpretation of the 1887 law, depending on Louie Gohmert’s suit and whether the vice president has that power. What should happen is, the Vice President when he gets to the first state to which there are two sets of electors, he could say, “Let’s accept evidence. We’re all here. Let’s see what actually happened. If we’re going to make a decision, we have to have evidence to make that decision on.”
He could drag that out for several days, and the whole country could see what very few in the country have seen so far, in terms of the evidence that was presented in these individual state hearings. There’s no reason he couldn’t do that. That would at least give the Congress and the vice president and frankly, the courts the opportunity to have the evidence shown so that they can make an informed decision and not just make a partisan decision, instead of just digging in on partisan lines. How about looking at the facts and making a decision based on that?
Mr. Jekielek: That’s obviously very interesting, it also suggests a longer timeline than perhaps a lot of people are expecting.
Rick Green: Yes, it does. There is time there, that’s January 6, when they would start that process. So they could have a full week of hearings on that, and then make a decision and have plenty of time to do it. And again, historical precedent—when we go back to close elections like this, sometimes it wasn’t known for months before they actually had the decision made.
I don’t think we should be afraid of that, even if it means on January 20 there’s no president or vice president and Nancy Pelosi gets to be the acting president for a few weeks. I would rather have that scenario, and actually get to an outcome that we know is based on fact, and based on legal votes, than have a scenario where we rush this through, just because nobody wants to deal with the problem and they want to sweep it under the rug. That’s really bad for our constitutional republic. I truly believe the Republic is at stake here.
I’m not saying that we’re going to fall apart completely dependent on a particular outcome on January 6th, but it weakens our republic in a serious, serious way, if you have half the country not trusting in the election process. It’s one thing to say people violated the law, people were fraudulent. We’ve always had people trying to cheat, that’s the nature of man, right?
But we’ve always said, “Look, if there’s transparency, we can discover that and we can have verification of the process. We can have legal remedies. We can work this thing out.” I had a recount in my first election. I used to be a state rep in Texas, and we had a very close race, I lost by 20 votes. We had a recount, I won by 36 votes. My opponent and I looked at every single one of those 30,000 ballots. When it was all said and done, I won by 36.
I looked at him and I said, “Look, the law allows you to have a second recount to make sure we got it right.” He said, “Rick, why would we do that? We’ve looked at every ballot. You won, it was close, but you won. Nobody claimed cheating, nobody claimed the process was broken. That’s what we need in our election process in every state; transparency, verification and legal remedies to see it through so that the people can have faith in the process. If we lose faith in the electoral process, we will not have a constitutional republic anymore. This is that important. January 6 is going to be a time to find out if we have leaders in Washington willing to fight for respect and faith in that election process.
Mr. Jekielek: Based on everything you know about the irregularities and some of the machine-related voting—I’m well aware that in many countries, there isn’t machine voting. It’s just not accepted because it complicates the system significantly. What would you imagine would be the simplest way to simplify this mess in terms of the actual voting.
Rick Green: There’s a couple of things and I think we’re going to see this in maybe every state come January in these legislative sessions that are going to be happening across the country. I encourage citizens all over the country to be involved in this. Call your state rep and your state senator. Get together with other citizens and go testify in committee and say you want election integrity, you want ways to verify this.
In terms of how to do that, there’s several things that need to be done. You have to clean up the voter rolls, you have to get the dead people off of the voter rolls. They’ve already proven how many voted in these battleground states. You have to clean up the voter rolls, you have to stop dragging out the election process for months at a time with the early voting and now even voting after the election. Then when you vote, there has to be a paper trail.
It’s crazy to me that we would say we’re going to have an electronic voting system, where you can’t even go back and look at how every individual voted on paper. The only reason we were able to have confidence in my election 20 years ago, was because we were able to look at every single ballot. So all sides had faith in the process at that point. We need that in every state.
There needs to be a paper ballot that you can go back to, and actually have a recount, whenever there’s a close election. I hope that every state will choose to do that. They’re not going to unless the citizens demand it, because it’s easier on the government, it’s easier on the election officials to just do electronic. So hopefully, in that case, according to them [you can] have a result that night. Everybody wants to know immediately. It’s not worth knowing immediately. We need to have the paper ballots to make sure that we can verify the election.
Mr. Jekielek: I heard recently that in Pennsylvania, there’s actually five different systems of collecting ballots and counting. If you know anything about this can you list it? It seems bizarre to me
Rick Green: You’re hitting on a very important point. I forgot to mention that—equal protection. States obviously have different methods. The Constitution gives them the power to do that, let their citizens decide what that will be. But then it should be uniform across that state, so that there’s equal protection. So that not only every vote counts the same, but the process of voting is the same. So it’s not harder in one area of the state to vote than it is in another area of a state to vote. So there’s not a different standard for reviewing signatures and all of those different things.
That’s where you give not only opportunity for fraud, but it’s just not fair. It’s unfair to count one part of the state in an easier way than another part of the state. That’s obviously going to manipulate the outcome. So uniformity and equal protection across the state is a really important part of the reforms that I think you’ll see in a lot of these states across the country.
Mr. Jekielek: We’ve gone into a lot of, as you call them, rabbit trails. You’ve mentioned a few these things now, but very quickly, in terms of electoral reform, what are the key points summarized in your mind—things that absolutely have to happen based on what we’ve seen over the last couple of months?
Rick Green: Let’s start with the citizen involvement. I’m challenging everybody out there. If you’re a citizen, and you want to have faith in the elections, you have to get involved and have a voice in this. You can’t just leave it to the politicians. We are very, very fortunate in our country, to have “we the people” as the first three words of our Constitution. We’re the ones in charge.
You’ve got to get educated on the Constitution. Go to constitutioncoach.com. Sign up for one of our free classes and become a coach yourself. We train you for free. Host a class in your living room or at your local library, wherever you want to do that. We have 4000 coaches across the country doing that, because people are more interested in the Constitution than ever before. Then take that information and lobby your state legislature.
There’s two really important things, this spring, that have to happen if we’re going to save our constitutional republic. We’ve got to have that election integrity reform and we’ve got to have reform on these disaster acts and emergency powers. We’ve got to prevent these governors from being dictators and being able to make law on their own.
We used to believe in a republican form of government. Article Four, Section Four of the Constitution actually guarantees that we’ll have a republican form of government in every state. That hasn’t happened for nine months now. I grew up on “Schoolhouse Rock!” On Saturday morning, I learned how a bill becomes a law. It became a law because the legislature passed that law and send it over to be signed. We haven’t done that for nine months in most of these states.
We’ve got to change that. So I’m encouraging citizens to lobby their state legislature on election integrity reform, on the disaster acts, and on the emergency powers. To your point on the election integrity specifics; make it where you have a paper ballot in your state, and make sure the voter rolls are cleaned up before the election. Make sure that you tighten that election time frame, so there’s less opportunity for fraud.
It used to be day of election, that’s it, one day for the election. That’s really how it should be. I don’t see us making that big of a reform, because of what people are used to these days, but at least tighten up the early voting and no matter when you’re voting, the same rules for everybody across the state.
Mr. Jekielek: One of the things that I’ve heard is that there were a lot of legal challenges or lawsuits that were launched in the months prior to the election to change how the elections functioned in different states and in different jurisdictions. And that not all of that was on the up and up. Are you aware of this? What’s your take on that?
Rick Green: Yes, there was a concentrated effort, literally a year before the election, suits beginning to be filed. The left really understood that they could manipulate the election process by doing this. Now had the courts done their job and not allowed the changing of the election law without the legislators, I don’t think we would be in the mess that we’re in. I’m sure that some states would have gone along with these different reforms and created these problems, so the legislators might have been part of the problem had they done that, but they didn’t even get to participate and become a part of the problem.
So those lawsuits, you’re right on, those lawsuits were a concentrated plan. And it worked. They were able to create this chaos leading up to the election and after the election, so that has to be cleaned up by the legislators. I hope as well that the courts would decide in the future, that they’re not going to, like the state court did in Pennsylvania, become part of the problem. They actually helped rewrite the statutes. That is absolutely outside their purview. They should have kicked it back to the legislature there.
But you’re very wise in saying that. Those suits that most people just ignored, it was not covered by the media hardly at all. That’s what sets up this entire mess. The legislature has a chance to fix it, but we the people are gonna have to push the legislature to do that. They won’t act unless we’re screaming and hollering and making the phone calls, showing up at the legislature and letting our voices be heard. If we do that, I believe they will act.
Most people want to have a free and fair process. Democrat or Republican, you want to know that you won fair and square. You want to know that you can have faith that the election is not going to be stolen from your side on the next go around. This is some something that people can come together on. There’s only a handful of bad actors out there that tend to manipulate this process and try to skew it to their favor. Most people want it to be fair, but most people have to show up to make sure that it’s going to be fair.
Mr. Jekielek: Here’s another question. You described this whole scenario of what’s going to happen, given these competing slates of electors, and questions about election integrity. It’s a very chaotic situation, we’re not sure what’s going to happen. There’s all sorts of different precedents that could happen, rulings might be required. There may be some people out there who are saying, “This system, we should just clean it all out, and start from scratch.” We have people that are talking about eliminating the electoral college as some sort of antiquated entity. Anyway, radical remaking of the whole system would be something that in this situation would be what some people are calling for.
Rick Green: They are, and I would disagree with them, and say, “Look at the totality of the electoral college over all of these years, it served us incredibly well, the founders were wise and creating the electoral college so that all the states would have a voice so that you wouldn’t be ruled by just the big cities or just the big states. It works incredibly well, they considered popular vote, they knew that would be a bad idea that moves too close to democracy.”
They said, “Democracy is Mob-o-cracy.” That it’s a great evil, in fact. That’s why we’re not a democracy and we are a republic. We’re a special form of a republic; we’re a constitutional republic, with a special form of federalism. The electoral college really embodies that. I would definitely be against throwing it out and starting all over.
But this one scenario where the election is so close, and you have states that have had their process literally taken over and manipulated in such a bad way, we need a clearer outcome for how to deal with that. We’ve known that from day one. They debated that, as I mentioned earlier, even in those early joint sessions, where they were trying to count the electoral ballots. They chose not to fix it and make it more clear in the 12th amendment.
Even after Thomas Jefferson had to deal with that in 1800, he had to count Georgia, and didn’t even take input from the members of Congress. Everybody knew there were real problems there, so that was a known factor when they passed the 12th amendment just a couple of years later, I think we need a new amendment here. We can tighten up this one area and give people more faith because we’ll remove the uncertainty of how you deal with this scenario that’s only happened a couple of times in our history.
Mr. Jekielek: Rick, I want to finish up touching on this very interesting point, which is, to me as a Canadian, is always been super fascinating to me. A few people have mentioned this to me. In a sense, the idea of having a republic, a constitutional republic, is actually kind of to protect from democracy. Whereas typically we say we’re a democracy, we’re promoting democratic rule, rule of law, all the things that come with liberal democracy. If you had democracy as you described, full democracy, as you described it, basically these large centers would dominate the decision making and that’s something the founders didn’t want. So, does the republic actually kind of protect from democracy? That’s a fascinating question and issue that I think is just lost on a lot of people. I don’t think a lot of people have considered this.
Rick Green: It does. And that’s certainly why they set the system up the way that they did. The reason people don’t think about this or talk about it anymore is because we don’t teach civics anymore. All the problems we’ve seen in 2020, are the result of the underlying problem has been festering for decades; we’re not teaching civics. We have total civic ignorance in our country. 74 percent can’t even name the three branches of government, let alone how the process would work in a situation like this.
I was one of those people. I mean, ignorance is curable. I was ignorant about these things. Even as a legislator, I didn’t know how the constitution worked. I didn’t know the freedoms in the First Amendment by heart. I didn’t know any of those things, either. I became passionate about it whenever I saw some of those areas break down, whenever I saw the attacks on these liberties and not knowing how to fight back.
Chief Justice John Jay said—he was one of the framers of the Constitution and one of the authors of the Federalist Papers, that’s our instruction manual on the Constitution—he said that every citizen ought to read and study the Constitution so that we’ll know our rights. We’ll perceive when they’ve been violated, and be better prepared to defend and assert them. We’re in the mess we’re in because we didn’t perceive the violation of our rights. We didn’t properly and peacefully defend and assert those rights.
So being a republic— absolutely, you’re right. It’s a great way to put it—defends against a Mob-o-cracy, a democracy. If you don’t have it on paper, if you don’t respect the Constitution itself, then you’re not a constitutional republic. For too long we’ve ignored the document itself. It’s part of why I keep saying this is not about Trump. This is not about Biden.
This is about the Constitution itself. Are we going to uphold the rule of law, and then whoever wins under the rule of law? We should all be willing to accept that. We need to come back to that respect for the Constitution itself, and not give into these crazy ideas of being a pure democracy. National popular vote does that. It empowers the big cities to make the decisions at that point.
By the way, what happens when you do that? You encourage more fraud because now one city can run up the vote and not only win the electoral votes in that state, but actually skew the whole election for the entire nation. The founders knew that. Benjamin Rush talked about how the cities were a problem. You needed to make sure that you put them in check. So you nailed it. I think being a constitutional republic does protect us from becoming what the founders called a Mob-o-cracy.
Mr. Jekielek: Rick Green, such a pleasure to have you on.
Rick Green: Really enjoyed being with you. I hope people will continue to be interested in the Constitution, as bad as 2020 has been. I’ve been encouraged by how much people are interested in studying these things. They’re asking the right questions. So hopefully in 2021, we can get educated about these things and we can make these corrections to make our constitutional republic work better.
This interview has been edited for clarity and brevity.
