THE CONSTITUTIONAL DUTY OF STATE LEGISLATURES IN A CONTESTED PRESIDENTIAL ELECTION
William J. Olson, William J. Olson, P.C., Vienna, Virginia
Patrick M. McSweeney, McSweeney, Cynkar & Kachouroff, Powhatan, Virginia
The American People deserve lawful presidential elections: “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders, 376 U.S. 1, 10 (1964).
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 administrative irregularities on Election Day. People deserve an honest accounting of who won. Many Americans voted via a process – absentee ballots, including mail in ballots – that the bipartisan Jimmy Carter-James Baker commission identified as “the largest source of potential voter fraud” in the wake of the contested 2000 election. BUILDING CONFIDENCE IN U.S. ELECTIONS: REPORT OF THE COMMISSION ON FEDERAL ELECTION REFORM, at 46 (Sept. 2005).
With respect to identifying and remediating fraudulent or mistaken results, it is now or never, whatever can be done must be done.
Examining the Assumptions of Andrew McCarthy
This analysis was inspired, indeed provoked, by an article written by Andrew McCarthy appearing in the historically Never-Trump National Review. Andrew C. McCarthy, “No, State Legislatures May Not Reverse the Result of the Election,” National Review (Nov. 21, 2020). Mr. McCarthy completely mischaracterizes the issue, establishing a straw man for him to set on fire.
He says: “The idea would be to appeal to Republican-controlled legislatures in states where presumptive president-elect Joe Biden won the popular vote — Pennsylvania, Michigan, Georgia, and Arizona — and persuade them to appoint slates of Republican electors who would cast each state’s Electoral College votes for Trump rather than Biden.” Well, if Biden actually was the presumptive president-elect, and if Biden had won the popular vote, Mr. McCarthy’s analysis would make sense. But he is assuming facts not in evidence.
Suppose that the Trump Campaign follows up on the “Opening Statement” that was outlined by Rudy Giuliani, Sidney Powell, and Jenna Ellis on November 19, with 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. What then is a state legislator to do, particularly if the hard evidence of pervasive electoral fraud comes in after the vote is “certified” in accordance with election laws that presuppose that only a brief time is required to detect and remove fraud, and the number of votes directly challenged is not outcome determinative?
Mr. McCarthy objects to the “president’s team … taking its case public in order to pressure Republican state legislators.” Mr. McCarthy would prefer if President Trump conceded and simply rode off into the sunset. Would he do that if as a candidate he thought that he had lost in a dishonest vote? Taking the case to the public makes all the sense in the world — after all, the President is the one official who represents all the People. And, a prima facie case has been made that there was substantial computerized election fraud.
For every legal argument Mr. McCarthy makes, there is a stronger argument on the other side. He would ignore the language of Article I, Section 2 which vests in state legislatures the authority to determine the Manner of electing electors. Mr. 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.
The U.S. Constitution vests the total authority to select electors in state legislators, not Governors, Secretaries of State, or pundits. Mr. McCarthy would believe that laws enacted by states can diminish that authority. But they cannot. And if the counting of the votes from the November 3 election demonstrates foreign meddling, then state legislatures absolutely will be required to carry out the mission assigned them by Alexander Hamilton in Federalist 68 by exercising their authority, as the Constitution states, to “appoint” electors. Inspired by Mr. McCarthy, and in a desire to defend the process established by the Framers, this paper was written.
A Prima Facie Case for Election Fraud Has been Made Out
Although the principals involved apply to all states, we focus one state — Arizona. As of November 21, 2020, the website of the Arizona Secretary of State shows the following razor thin difference in the reported vote for President and Vice President:
Biden 1,672,143 49.39 percent
Trump 1,661,686 49.08 percent
Difference 10,457 0.31 percent
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. But the reported margin could also be the result of a relatively new types of computer-based election fraud.
At a 96 minute press conference on November 19, 2020, Trump campaign counsel Rudy Giuliani, Sidney Powell, and Jenna Ellis presented what they described as their “Opening Statement,” in the Trump Campaign’s effort to demonstrate various types of election fraud. That Opening Statement outlined details of election fraud that has occurred in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin. Election fraud in New Mexico and Virginia was also briefly addressed. That press conference was covered by Fox and Newsmax (and by The Western Journal — Ed. note), but largely ignored by the other networks. The consensus mainstream media terms used to describe charges of election fraud continue to be “baseless” and “unproven.”
There is good reason to believe that significant election fraud occurred, and the source of this alleged fraud was not just the “run-of-the-mill” Big City Democrat election fraud. The briefing by the Trump attorneys asserts there is significant evidence that this election fraud that been aided and abetted by three particularly disturbing sources: (i) the Deep State and elements of the Intelligence Community [footnote 1]; (ii) foreign governments; and even (iii) some Republican office holders who benefited from the election systems that have been put in place.
read more here: TWJ Exclusive: The Viral Memo Changing the Trump Legal Strategy (westernjournal.com)
Replies
Any election fraud is unacceptable, our very long inability to make elections fraud-proof shows we have given too much power to the elected, and now for decades they just take it
Very informative article.
Here is the problem. We all know that State Legislators are themselves elected, and the majority of them in all States are elected by political party endorsement. They are bought and paid for before even taking a seat in the House or Senate of their respective States. Most are loyal to their party, not the public, but to those who financed their campaigns via contributions of cash and endorsements. Poltics is ready made for corruption, thievery, skulduggery, and all sorts of criminal acts. Constitutional adherence is not a priority at all, nothing more than a slogan, an empty promise in a campaign speech.
State Legislators are tied to the Governor of the same party. Does anyone honestly believe that they will select electorates that are opposed to their own party?
Look at it this way. First, name one other president who has done more for his country in his first term than President Trump has. And all of it under the most absurd and dire circumstances that corrupted crooks could possibly conceive of. When it all failed it was guaranteed months in advance that Trump would lose reelection, and one notorious criminal publicly told Biden so (as if Basement Biden needed reminding, and dementedly he did) to not concede under any circumstance, meaning the fix is in.
The Fraud was planned, executed, and the DNC partnered in the effort along with Democrat controlled State Legislators in key, so-called 'battle ground' States. Everybody that has a functioning brain knows it was fraud from the get go. There is no excuse for not knowing. It is as plain as the nose on your face.
President Trump lifted this Nation up like it never has experienced with the possible exception of victory in WWII. His rallies were attended by thousands, in every State where they were held, in support and appreciation for his accomplishments.
And He loses to dementia? A lying old demented braggadocious boob hiding in his basement? And this wasn't the result of fraud? How stupid is America. How corrupt are the courts.
We are gong to find out. And if the truth does not prevail for all to see, then there is no salvaging what remains of this Republic.