The Law is Clear: If An Election Is Stolen, State Legislatures Can Restore The Will Of The People – Here’s How

Without disagreeing with the conventional wisdom about the final tally when all the legal votes are counted, I believe the current consensus is missing the fact that Trump has a second, viable stealthy road to victory. I’m reluctantly betting that the debate about who won will continue until at least January 6 when slates of electoral college members are opened in Washington, and most likely beyond that as whatever is decided then is appealed by the loser to the Supreme Court. My conclusion reflects the analysis of my colleague from Revolver News which is below.

State legislators in Pennsylvania, Georgia, Wisconsin, and other disputed states should declare openly, right now, that they will only accept a Joe Biden victory after a thorough and complete investigation of all potential voter fraud in every state where the electoral outcome is contested. If these investigations are obstructed by the left, then they can and must exercise their Constitutional power to choose electors that restore the will of the people.

This is not only a moral necessity to restore dignity and legitimacy to our nation’s electoral system — it is entirely constitutional. Having state lawmakers choose electors is not a new concept. Federal law already gives legislatures the exact power to do this.

As most Americans know, the U.S. president is not elected directly by the public but is instead chosen by the Electoral College. Few people, though, know the exact manner in which the Electoral College chooses the president.

The actual Electoral College election is governed by the Electoral Count Act, an 1887 law amended in 1948. Among other things, this law sets the exact day that the Electoral College meets: The Monday after the second Wednesday of December. On that day (December 14 in 2020) the chosen electors will assemble in each state and formally cast their votes.

This day is a hard deadline, fixed by federal law. States must have their electors chosen by then. In fact, the Electoral Count Act explicitly accounts for what to do if a disputed election or other problem means electors cannot be chosen by voters:

Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct. [Legal Information Institute]

In other words, federal law explicitly empowers state legislators to decide how a state’s electoral votes should be awarded, even after election day, if that election “failed to make a choice.” Certainly, such a “failure” would include a fraud-ridden election whose outcome cannot be trusted.

It’s a precedent the Supreme Court has endorsed relatively recently. In 2000’s Bush v. Gore ruling, a Court majority affirmed that:

 

…the State legislature’s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself. … The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35 (“[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated”)  [Legal Information Institute]

Princeton political science professor Keith Whittington, who otherwise opposes state legislatures intervening in the 2020 election, admits in a recent piece that “The Constitution arguably gives state legislatures the power to appoint presidential electors right up until the day the electors meet to cast their ballots.”

In the case of a stolen election, Republican lawmakers, then, should not feel ashamed or hide away from what the law plainly empowers them to do. This would not be an act of usurping the will of the people, it would instead be a noble and heroic act of restoring the will of the people that was viciously taken away from them in the dead of night.

When enough fraud is found in lesser races to throw the entire outcome into doubt, courts have ordered entirely new elections to be held. But with an office as critical as president, such an option is not feasible. Not only would another presidential election cost too much and take too long, but the Constitution simply does not allow for it. The Constitution explicitly requires a president to be chosen by the Electoral College prior to January 20.

If the 2020 election was stolen, then, only one recourse will remain: Republican-controlled state legislatures must act, and vote to choose Donald Trump’s electors for their Electoral College delegation. They cannot be passive. They cannot simply sit around and let the Trump campaign do all the work, or wait for some state court to tell everyone how things will be. State lawmakers must start setting the agenda right now. They must relentlessly drive forward investigations, and refuse to accept propaganda from the press and ass-covering excuses from left-aligned bureaucrats.

This stealthy road follows in the footsteps of a number of previous contested American elections, especially the 1876 election that pitted Tilden v. Hayes. Then as now, each state must decide on a group of electors to meet with a joint session of Congress on January 6 where the winner of the presidential election is declared. The normal practice in a state where Biden won the popular-vote total would be for state election officials to certify the results and send a slate of electors to Congress. But state legislatures have the constitutional authority to conclude that the popular vote has been corrupted and thus send a competing slate of electors on behalf of their state. The 12th Amendment to the Constitution specifies that the “President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” That means that in the case of disputes about competing electoral slates, the President of the Senate—Vice President Pence—would appear to have the ultimate authority to decide which to accept and which to reject. Pence would choose Trump. Democrats would appeal to the Supreme Court.

Alternatively, if at that point, no candidate has the required 270 electoral votes, the 12th Amendment stipulates, “the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote.” Currently, Republicans have a state delegation majority with 26 of the 50 states and they appear almost certain to keep that majority in the new Congress. A vote of the states would then elect President Trump for a second term. And again, Democrats would appeal that outcome to the Supreme Court.

As the analysis below notes, these issues are even more complex. But to repeat the bottom line: both the words of the 12th Amendment, and historical precedent offer a credible, stealthy, winding road that could lead to Trump’s victory and a second term. Or as the saying goes: the opera ain’t over till the fat lady sings.