How Do We Protect Future Election Certification Processes?

I hope everyone was able to review at least some of the findings released by the January 6 Committee last week, on the anniversary of the “Attack on the Capitol”. The Committee released some of the documents they have received from senior officials of the last Administration, revealing some of the communications and planning documents that were taking place between the election on November 3 and the election certification and Capitol attack on January 6.

The powerful thing about these findings is their authenticity: they came from the documents and transcripts of cell phones of senior officials from the last Administration, in their own words. There can be no concern that someone’s partisan opinion has been inserted. The language is in quotes and documented as coming from those officials themselves.

I came away concluding that the physical attack on the Capitol, in an attempt to stop the official vote count, is NOT the key issue challenging the future of our Constitutional Republic. The real danger is the use of a lie, a false claim not justified by evidence or by multiple recounts and audits, including audits performed by partisan entities without bi-partisan participation, or confirmed in a court hearing, to justify unconstitutional actions to overturn an election and keep former President Trump in power illegally. Quite simply, it is hard to label that activity as anything but an attempted COUP.

I was shocked by the number of senior officials in the previous Administration, and prominent people outside the Administration on January 6, who were revealed in these documents to not only have supported the lie and illegal actions, they actively worked behind the scenes (until now) to try and build support for the multiple paths they were pursuing in the COUP attempt. That activity probably adds CONSPIRACY to the basic acts themselves. This group harassed state election officials, Secretaries of State and Governors, to change the confirmed vote totals between former President Trump and President Biden, without any evidence, on the basis that the mere statement by former President Trump that there was significant fraud that invalidated the election results in key swing states he lost was sufficient justification for illegal actions, additional lies and finally the violent and deadly attack on the Capitol on January 6. They pressured the Vice President to take an unconstitutional act upon himself on January 6 to reject some of the certified votes. And when all that failed over 2 months, in a last desperate act former President Trump directed the crowd on January 6 to march to the Capitol, telling them he would be with them (a last lie), and that they needed to “fight like hell or you won’t have a country.”

In my book, American Turning Point: Repairing and Restoring Our Constitutional Republic, I provide several suggested changes to the Constitution that are designed to forever prevent a similar approach to invalidate an election, or even a new approach that might be supported by partisan officials being placed in these key state positions, who have indicated they would overturn a future election based on the mere claim of voter fraud or election irregularities without evidence, without validation in a recount or audit, and without a court judgement.

Citizen Rules #8, #10 and #12 would change the election and voting processes in key ways:

1. Changing the Allocation of Electoral College Votes in Each State.

The Electoral College votes would be allocated in each state to candidates based on the proportion of the popular vote that each candidate received in the state. This eliminates the “winner take all” aspect of Electoral College vote allocations.

Now, a candidate who wins 50.1% of the state’s popular vote is awarded 100% of the Electoral College votes, and a candidate who wins 49.9% of the popular vote is awarded 0% of the Electoral College votes. Does that seem like the election process consistent with the principles and values of a democratic republic?

Under the new Citizen Rules, a candidate who wins 50.1% of the popular vote would be awarded 50.1% of the Electoral College votes for that state, and the candidate who wins 49.9% of the popular vote would be awarded 49.9% of the Electoral College votes.

This change would make every state a “battleground” state, where the candidates from both parties would need to compete for votes, instead of having only about 12 of the 50 states considered to be states where the preference for the candidate from a given party is almost assured to yield a majority of the popular vote and 100% of the Electoral College votes. This also would likely increase citizen participation in elections in every state, because no one would live in a state where if you were in the minority, your vote essentially cannot impact the number of Electoral College votes the candidate you favor can be awarded.

2. Defining a New Process for Converting Popular Votes in each State to Electoral College Votes and Certifying the Vote in Congress.

Once the popular vote in each state is finalized and certified by the State Election Board, including the proportion of the popular vote won by each candidate and the simple mathematical allocation of Electoral College votes based on these results, there is a period of 6 weeks before the date of the final certification by the Secretary of State and Governor. During this time, all challenges to the results via recounts, audits and/or Court reviews of any evidence of fraud or irregularities must take place. By the date in mid-December that the States are required to send their certified vote totals to Congress, for popular vote, popular vote percentages, and Electoral College votes for each candidate, all challenges must be resolved.

The State’s legislature is specifically removed from having any role in challenging the results. That role is reserved to the party, the candidates themselves, or a citizen-led group. There is also no appointment of human electors, no certification of or challenge to the human electors, and no ceremonial vote of the electors in each State. A simple mathematic allocation based on the share of the popular vote, certified by the Secretary of State and Governor, determines the allocation of Electoral College votes. These changes remove the opportunities for partisan shenanigans to illegally impact the election results after the people’s choice has been certified.

Finally, the role of Congress and the Vice President in the first week of January is solely to open, read and count the total Electoral College votes awarded to each candidate. These officials are specifically removed form having any role at this point in challenging the election results, removing the current Senate rules on state-by-state challenges. The approach detailed in the attempted COUP plans that were tried in 2021 would therefore be forever prevented.

3. Campaign and election messages must be truthful and honest.

This change establishes a Federal Election Message Oversight Board with the authority to review campaign messages by candidates, parties and special issue action groups, including Political Action Committees, to ensure they are truthful and honest. This “truthfulness” review simply requires the speaker, writer or distributor of messages to be able to present evidence indicating the messages can be supported by evidence. This approach is based on following the requirements that commercial speech in advertising, promotion and marketing be “truthful and non-misleading” as the Federal Trade Commission and voluntary industry advertising review boards have guaranteed for decades.

Why is this important? Is it Constitutional? We require commercial speech to be based on supportable evidence of truth, to protect consumers from being defrauded, and to protect companies who invest in making better products from unfairly having their business hurt by fraudulent claims or promises by competitors. These limits on absolute free speech have for a long time been considered as Constitutional … that the First Amendment doesn’t protect illegal, fraudulent speech in business.

So I ask, which is more critical to the success of our country? Protecting the choice of a detergent or toothpaste from fraud, or protecting the choice of a President or other elected officials from fraud? If the First Amendment doesn’t protect lies or fraudulent speech in business, why should we allow lies and fraudulent speech in campaigns and elections? Modeling this review process after the proven-effective commercial speech review process, by requiring that the speaker, writer or distributor have evidence that the message is truthful, places the responsibility to provide evidence of truthfulness where it belongs: on the speaker, writer or distributor, as exists in the commercial speech process.

I ask readers to consider how these practical, unbiased and non-partisan changes would act in concert to protect our elections from future illegal manipulation by extreme partisan elements in either or any party. If you agree these changes would help protect our democratic republic processes in the future, and would be key elements to provide more confidence in all our citizens that our elections were meaningful, fair and free from partisan influences, then I hope you will consider sharing this post within your network.

A summary of all 16 Citizen Rules, and the road map to implementing these changes, can be found on the book’s website at www.citizenrules.org. There is also a Contact page there to share comments and a button to “Buy the Book” on the home page, to read the details.