In his recent column J. F. Kelly, Jr. wrote, in reference to the claims of election fraud, that “last minute changes to rules and deadlines not authorized by state legislatures as the Constitution requires, resulted in a contested election (emphasis added)”. This is simply not true and leaves the reader with the opinion that some states did something wrong in how they conducted their elections…which is also not true.
The truth is the US Constitution provides the following guidance on the conduct of elections in Article One, Section 4 (the Elections Clause), where it 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 chusing (sic) Senators.”
This section makes it clear that states have the right to prescribe the time, place and manner for holding elections (emphasis added). Those claiming otherwise typically assert only state legislatures can create and adopt the rules governing the manner in which elections are conducted and this is not correct. The constitutional delegation of the right to determine the manner in which elections are conducted (see, above) does not require that only state legislatures set the election rules for each respective state. There is nothing in this section of the US Constitution that prohibits each state legislature from in turn delegating its constitutionally derived authority to create rules governing the conduct of elections to a state office or entity charged with doing so unless the state’s own constitution does not allow it.
This is why virtually every lawsuit filed by the Trump campaign or Trump’s surrogates not only failed, but most were summarily thrown out of court, including the case that made it to the Supreme Court challenging the manner in which the Commonwealth of Pennsylvania. The Supreme Court also specifically held, in another case interpreting the Elections Clause, that a state legislature may delegate its authority under the Elections Clause to other entities or officials so long as nothing in the state constitution prohibits such action. Therefore, implying a state violated the US Constitution by allowing a state official (like the Secretary of State) or state created entity (like the Board of Elections) to adopt rules governing the conduct of an election during a global pandemic is incorrect and misleading information.
This section of the US Constitution does allow Congress to step in and create its own set of rules for the conduct of federal elections, but the fact it has not done so is further proof each state retains unfettered authority under the US Constitution to conduct all its elections as it sees fit so long as the state does not violate its own constitution when doing so.
Going forward, I hope Mr. Kelly will stick to factual information that he personally has researched and verified as the basis for his opinion pieces and stop using talking points developed by some of Trump’s seditious supporters in Congress.