Analysis reveals lawmakers have ‘total authority’ to select electors
State legislators have the constitutional authority to overrule a certified vote count in a presidential election if they believe it was fraudulent or in error and did not fulfill the will of the people, contend, constitutional attorneys, William J. Olson and Patrick M. McSweeney.
They were responding to a National Review column in which former federal prosecutor Andrew McCarthy insisted that Republican-controlled state legislatures cannot appoint slates of Republican electors to the Electoral College if the voters chose the Democratic candidate.
But Olson, a former special counsel to the U.S. Postal Service board of governors, and McSweeney, a former U.S. deputy assistant attorney general, and acting assistant attorney general, explained in their analysis how the outcome could change even after states certify their results.
“During the 2020 presidential election, many of the so-called swing states, including Arizona, saw unprecedented – and unlawful – erosions of procedural safeguards as well as administration irregularities on Election Day,” they wrote. “People deserve an honest accounting of who won. … With respect to identifying and remediating fraudulent or mistaken results, it is now or never, whatever can be done must be done.”
Olson was a member of a committee for the President’s Export Council, a member of Ronald Reagan’s transition team in 1980, and an official in the U.S. Department of Transportation. McSweeney was executive director of the Virginia Commission on State Government Management and a law clerk at the 4th U.S. Circuit Court of Appeals.
In their analysis — titled “The constitutional duty of state legislatures in a contested presidential election” — they pose the question of what should happen if there is a “case-in-chief which demonstrates the presence of rampant fraud – with votes being tabulated at overseas computers, with software designed to elect favored candidates, with stacks of ballots marked only for Biden and no down-ballot races, etc.?”
In the instance of a “prima facie case” of “substantial computerized election fraud,” they wrote, McCarthy “would have even those state legislators who become fully persuaded that the count was fraudulent to sit back and see the person that their constituents actually elected be de-throned by CNN and National Review.”
“Legislators who want to carefully examine the election process, and take action if significant election fraud is found, would be simply giving effect to the vote of the people, not denying it. They should not, as Mr. McCarthy would want them to do, avert their eyes to the Big Steal.”
They noted the U.S. Constitution “vests the total authority to select electors in state legislators, not governors, secretaries of state, or pundits.”
In Arizona, as of Nov. 21, Biden had 1,672,143 votes to President Trump’s 1,661,686, a difference of only about 10,000.
“This 10,000 vote spread is so small that it easily could be the result of the type of retail election irregularities that occur, such as persons voting twice, voting by dead persons, voting by illegal aliens, voting by persons not living in the state, etc,” they wrote. “But the reported margin could also be the result of a relatively new type of computer-based election fraud.”
Trump lawyers say they have “significant evidence” of fraud from “three particularly disturbing sources”: the Deep State, foreign governments, and Republican officeholders who benefited from the existing system.
Statistical anomalies, such as numerical patterns in “vote dumps” for Biden right after the election amount to “a prima facie case of fraud.”
Further, 70% of the Trump base believes there was widespread fraud.
And those voters also believe that unless the fraud is exposed, it’s “the end of free and fair elections in the nation.”
They expect state legislators to expose the fraud.
“No state constitution, state law, or state court can alter or constrain that grant of power,” the lawyers wrote, citing Supreme Court precedent.
Pointing to the Arizona evidence, they said the legislature “has a duty to thoroughly investigate the claims of fraud and ensure that a lawful election has taken place.”
If there was a fraud, the state lawmakers are “free to determine how to proceed.”
“The power to choose electors lies ‘absolutely and wholly with the legislatures of the several states.'”
They explain:
The question for each Arizona state legislator should be whether the vote counting system that is in place has generated an accurate reelection of the lawful voters of Arizona, or whether the system either is flawed, or was hijacked, to reach a pre-determined result. If it is believed that there was systemic election fraud in Arizona, then allowing the State Certification process to go forward unchecked would make the legislature complicit in the perpetration of a fraud upon the United States and its people.
However, there is no reason why a State Legislature could not send its own Certificate of Ascertainment, which, in this scenario, (i) could give all of the state’s electors to Trump, (ii) could split them between Trump and Biden, or (iii) could refuse to send any electors at all.
“The Founders recognized that elections could be corrupted or stolen. They established the Electoral College as a safeguard and empowered state legislatures to ensure the integrity of the election. Lawful voters expect state legislators to do their constitutional duty to ensure that the lawful votes of the people as the cast are honored — not diluted or debased by systemic fraud.”
Constitutional scholar Alan Dershowitz suggested a path for victory for Trump by challenging state certifications and causing enough to remain in question that Biden would not get the required 270 votes with the Electoral College meets.
Dershowitz, an emeritus professor of law at Harvard, noted in a column for the Gatestone Institute that Biden is not officially the president-elect.
“Let us remember that as a matter of law and constitutionality, Joe Biden is not yet the president-elect. He has been coronated by the media, by politicians and by most Americans. But to officially become president-elect requires, at the very least, certification by enough states to give him the 270 required electors. That has not yet occurred,” he explained.
The president’s road to reelection would require a “perfect storm” that now seems unlikely but not impossible, he said.
“The goal of the Trump legal team is not to get 270 electoral votes for their client. That seems beyond the realm of all possibility,” wrote Dershowitz. “The goal is to question Vice President Biden the 270 he needs for the Electoral College to select him as president. Since this is a zero-sum game, how is it possible for Biden to be denied the 270 without Trump reaching that number?”
He said that if “enough electoral votes are still being contested by mid-December, and if fewer than 270 electors are certified by their respective states by that date, then Biden could – in theory – be denied the necessary 270.”
“If that were to happen, then the election would be thrown into the House of Representatives, as it was on several occasions in the 19th century,” Dershowitz said.
“Under the Constitution, the House votes for president not by individual members, but by state delegations,” he noted. “Each state gets one vote, and so 26 states are required to elect a president. Although there are more Democrats than Republicans in the House of Representatives, there are more states with a majority of Republican representatives. Accordingly, if the election were to go to the House, the Republicans would determine the next president.”
