The Founding Fathers Vested State Legislatures With Authority to Decide Presidential Electors for Good Reason

November 29, 2020 Updated: December 1, 2020

Commentary

The Founding Fathers vested exclusively within the legislatures of the respective states the power—and solemn duty—to decide the manner in which its presidential electors are chosen (U.S. Const. Article II, Sect. 1, Cl 2.).

By contrast, Article III vests in the judicial branch—the federal courts—the power to decide actual “cases and controversies” between litigants who come before the courts. The “cases and controversies” requirement to invocation of a court’s jurisdiction is universal in Anglo-Saxon jurisprudence, and applies to all state courts as well.

This fundamental distinction is crucial to understanding the very different roles to be played by the swing state legislatures, on the one hand, and the state and federal courts, on the other, in the electoral fraud charges now gripping the nation.

Case or Controversy

So far, several court cases have been brought, mostly by private parties (not President Donald Trump), including voters and the Trump-pledged electors of a given state, on the one hand, against the board of elections, governor, or secretary of state, on the other.

These “cases” bring up specific allegations of fraud, and the courts, whether federal or state, must decide solely the issues before them, not whether, more broadly, the electoral process was infected with fraud such as to bring into serious question the integrity of the election.

For example, in the president’s case in the federal court system in Pennsylvania, allegations were made about how Republican poll observers were routinely denied meaningful access, and that hundreds of thousands of ballots—including many received after the 8 p.m. Election Day deadline set by the Pennsylvania legislature—were counted outside their view. In addition, allegations were made of a denial of “Equal Protection” (as guaranteed by the 14th Amendment to the U.S. Constitution), because only voters in predominantly Democratic precincts were afforded “cure” rights with respect to their defectively filled-out ballots.

Given the severe time constraints, evidence of voter fraud is constantly emerging, but court complaints lag, alleging only the frauds known when they were drafted.

The recent federal 3rd Circuit Court of Appeals decision the president lost concerned the narrow issue of whether the trial judge erred in denying the president permission to amend his complaint to assert additional fraud allegations learned after the complaint was drafted. That narrow issue was the only “case or controversy” before the federal appellate court, which simply ruled that the trial judge hadn’t “abused his discretion” in denying the president permission to amend his complaint (though such leave to amend is required to be freely given under law).

Similarly, in Georgia, Attorney L. Lin Woods’s federal court complaint raised predominantly the question of whether a previous court settlement imposing a cumbersome and time-consuming three-clerk panel to perform “signature checks” on mailed ballots unconstitutionally overrode Georgia’s legislative scheme, which unambiguously required a single clerk to determine if the signature on the ballot matched the signature of the voter on the state’s voter registration card. Signature matches weren’t verified by the Georgia recount.

Though independent attorney Sidney Powell’s more recent federal suit in Georgia involves broader allegations of fraud, it, too, like all lawsuits, presents the court hearing it with a particular case or controversy. The contours of that case or controversy strictly limit what any court hearing the case—even the U.S. Supreme Court—can do.

For example, while I’m convinced—based on U.S. Supreme Court Justice Samuel Alito’s earlier order compelling Pennsylvania’s secretary of state to segregate ballots received after the 8 p.m. Election Day deadline—that a majority of the U.S. Supreme Court justices have already concluded that the Pennsylvania Supreme Court’s split 4–3 decision extending the Pennsylvania legislature’s deadline for mailed ballots by three days itself violated the U.S. Constitution’s vesting of the power to decide electors in the state legislatures, it remains unclear whether that crucial but narrow issue will be brought up for review by the president’s appeal of the 3rd Circuit’s order affirming the trial court’s denial of leave to amend.

Legislative Hearings

Apart from the many court cases, legislative hearings are now underway in Pennsylvania, Michigan, and Arizona. Other swing states will hopefully follow suit.

The legislative hearings are far broader and fundamentally different in character than the court hearings. While the sole purpose of any court hearing is to decide the particular case or controversy brought before the court by the litigants, the state legislatures are acting in an investigative, rather than a juridical, capacity: Their function is to reach out and investigate all voter fraud issues to ensure the integrity of the election, and to avert disenfranchisement of their constituents who voted lawfully by virtue of the counting of fraudulent or otherwise unlawful votes.

Instead of being limited to the case or controversy brought before them by private litigants, and to hear the experts and witnesses called by the litigants’ attorneys, the lawmakers decide what issues they want to be addressed and who they want to hear from and to call to testify under oath, including by subpoena if necessary.

Thus, far from the circumscribed approach that must be taken by the courts, who act in a strictly reactive manner, responding to whatever the litigants bring before them, the state lawmakers proactively decide what issues they want to be addressed, and call such witnesses as they deem fit to assist them in assessing those issues.

And, of course, the responsibility of the state legislatures is broad—to ensure the integrity of the election that took place in their state. There are no court pleadings frozen in time that circumscribe the lawmakers’ lines of inquiry.

As an investigative rather than a judicial body, the state legislatures must consider all issues that impact electoral integrity. These include claims of “retail fraud,” such as ballots being sent out to voters who didn’t request them, which were fraudulently “harvested” by political operatives and submitted and counted, or, conversely, legitimately mailed in ballots by resident voters that were nevertheless not counted, ballots by dead people, ballots by out-of-state residents, and fraudulently altered or completed ballots.

Also included within the scope of the state legislature’s hearings will be claims of “wholesale” fraud, such as those leveled by former federal prosecutor Sidney Powell concerning the Dominion vote-counting software, which she alleges was used to fraudulently swap votes to Biden from Trump, and to simply dump larges masses of fraudulent votes for Biden in “spikes” in the early morning hours of Nov. 4.

Burden of Proof

Besides a profoundly enlarged hearing scope, and the far more proactive role of the lawmakers (versus the reactive role of jurists), the legislative hearings will not be constrained by the strict rules of evidence applicable in court cases, and, even more important, will not be governed by the burden of proof applied in court hearings.

In court cases, the plaintiff has the burden of proof, though in civil cases, that burden is a mere preponderance of the evidence—that the fact to be proved must be proved more likely than not to be true (not beyond a reasonable doubt as in criminal cases). In legislative hearings, there’s no plaintiff (upon whom to place the burden of proof).

In the recently held legislative hearing in Gettysburg, Pennsylvania, gasps were heard from the crowd when an expert witness, retired Army Col. Phil Waldron, testified that vote spikes totaling about 570,000 votes for Biden were tabulated in a short period, and during that same time, only about 3,200 votes were counted for Trump. Obviously, everyone knows such lopsidedness is statistically impossible.

While a court may, if it so chooses (though I would disagree), dismiss this sort of evidence as insufficient “concrete proof” of voter fraud to meet a plaintiff’s burden, it’s easy to see how a group of lawmakers would come to the opposite conclusion—that such evidence irrevocably compromises the integrity of the election.

Similarly, “statistically significant sampling” data may prove persuasive to the lawmakers, while a court, conceivably (though, again, I would disagree), could find such evidence insufficient to meet a plaintiff’s burden of proof. For example, Powell, in her recent Georgia and Michigan lawsuits, relies on data from Matt Braynard, who polled voters in those states, and based on a sizable sample of his data, expert witness William M. Briggs concluded, within a 95 percent degree of certainty, a range of fraudulently harvested ballots or uncounted lawful mailed in ballots. Similarly, in Michigan, evidence has been adduced that tens of thousands of out-of-state residents submitted ballots that were counted.

Again, this sort of statistical evidence may prove very persuasive to the lawmakers in assessing overall election integrity, while perhaps not being deemed by a given judge to constitute “concrete proof” of specific voter fraud sufficient to meet the plaintiff’s burden.

Similarly, state lawmakers are likely to be moved by “statistical anomalies”—voter turnouts exceeding 100 percent or even 350 percent and the counting of voting spikes in the early morning hours of Nov. 4, which all went for Biden, and were, we are told, beyond the physical capacities of the voting machines to tabulate in the time periods allotted. Ditto for U.S. Postal Service change of address forms establishing that tens of thousands of nonresidents cast ballots. All these issues shred election integrity and disenfranchise the constituents of the lawmakers who lawfully cast ballots.

Constitutional Mandate

The Founders understood all this, which is precisely why they explicitly and exclusively vested in the state legislatures the power to decide upon a state’s presidential electors. Add into the equation, in the states now holding legislative hearings—Pennsylvania, Michigan, and Arizona—that their legislative bodies are GOP controlled, while the election officials are Democratic operatives who insist on ignoring the vast body of evidence of fraud and irregularities, and it’s easy to see that the lawmakers must “reclaim” their constitutional mandate of deciding presidential electors.

Now, there may be some parliamentary hoops for the lawmakers to jump through, calling a special legislative session to certify presidential electors or possibly to certify an irredeemably corrupted vote. And time is critical. The Electoral College will be held in the respective states on Dec. 14.

Indeed, the brave and righteous lawmakers at the Pennsylvania General Assembly have already begun to act. A series of House members led by Republican state Rep. Russ Diamond have proposed a resolution. The resolution condemns the “partisan” actions taken by Pennsylvania’s notoriously liberal governor and Pennsylvania Supreme Court (by split decision) to override the act and will of the General Assembly in regards to the election, including the following findings:

  • “Officials in the Executive and Judicial Branches of the Commonwealth infringed upon the General Assembly’s authority under the United States Constitution by unlawfully changing the rules governing the November 3, 2020 election in the Commonwealth;
  • “On September 17, 2020, less than seven weeks before the November 3, 2020 election, the partisan majority on the Supreme Court of the Commonwealth of Pennsylvania unlawfully and unilaterally extended the deadline for mail-in ballots to be received, mandated that ballots mailed without a postmark would be presumed to be received timely, and could be accepted without a verified voter signature;
  • “On October 23, 2020, less than two weeks before the November 3, 2020 election and upon a petition from the Secretary of the Commonwealth, the Supreme Court of the Commonwealth of Pennsylvania ruled that mail-in ballots need not authenticate signatures for mail-in ballots, thereby treating in-person and mail-in voters dissimilarly and eliminating a critical safeguard against potential election crime;
  • “On November 2, 2020, the night before the November 3, 2020 election and prior to the prescribed time for pre-canvassing mail-in ballots, the office of the Secretary of the Commonwealth encouraged certain counties to notify party and candidate representatives of mail-in voters whose ballots contained defects;
  • “Heavily Democrat counties permitted mail-in voters to cure ballot defects while heavily Republican counties followed the law and invalidated defective ballots;
  • “In certain counties in the Commonwealth, watchers were not allowed to meaningfully observe the pre-canvassing and canvassing activities relating to absentee and mail-in ballots; and
  • “In other parts of the Commonwealth, watchers observed irregularities concerning the pre-canvassing and canvassing of absentee and mail-in ballots.”

The resolution also finds that “postal employees in Pennsylvania have reported anomalies relating to mail-in ballots, including multiple ballots delivered to a single address with unfamiliar addressees, ballots mailed to vacant homes, empty lots, and addresses that did not exist.”

Ultimately, the resolution:

  1. “Recognizes substantial irregularities and improprieties associated with mail-in balloting, pre-canvassing, and canvassing during the November 3, 2020 election; and
  2. “Disapproves of the infringement on the General Assembly’s authority pursuant to the United States Constitution to regulate elections; and
  3. “Disapproves of and disagrees with the Secretary of the Commonwealth’s premature certification of the results of the November 3, 2020 election regarding presidential electors; and
  4. “Declares that the selection of presidential electors and other statewide electoral contest results in this Commonwealth is in dispute; and
  5. “Urges the Secretary of the Commonwealth and the Governor to withdraw or vacate the certification of presidential electors and to delay certification of results in other statewide electoral contests voted on at the 2020 General Election; and
  6. “Urges the United States Congress to declare the selection of presidential electors in this Commonwealth to be in dispute.”

We are better than this, much better. This isn’t the United States of America.

Dueling Electors

If dueling electors are sent by the election official and governor of any of the six swing states, on the one hand, and the lawmakers of the state, on the other, it will be up to the U.S. House and Senate to decide, at the joint session on Jan. 6, which group of electors to count or whether to count neither.

If, due to noncounted electors, neither candidate achieves the requisite 270 electoral vote majority, a “contingent election” will be decided by the House, under the 12th Amendment, but with each state only casting one vote. President Donald Trump would handily win a “contingent election” because, though a majority of the representatives are Democrats, far more individual states have Republican majorities.

The Founding Fathers made a wise and prescient choice in setting up the Electoral College and vesting the state legislatures with exclusive authority to decide upon a state’s presidential electors. The multifaceted fraud issues that infect national elections (especially this one) aren’t easily and timely raised within the tight contours of a judicial “case or controversy.”

The six swing states in dispute—Michigan, Pennsylvania, Georgia, Arizona, Nevada, and Wisconsin—were all won by Trump on Election Day, yet somehow all of them miraculously shifted to Biden in a remarkably consistent, among those six states, post-Election Day “Blue-shift” (even though the other 44 states, including Florida and Ohio, which were won by Trump, saw no post-Election Day Blue-shift).

For those who don’t believe in conspiracy theories, let me suggest that you shouldn’t believe in across-the-board coincidences either. They’re even more implausible and tin-foil-hat-ish.

State lawmakers form the last line of defense against the Democrats’ seemingly brazen and abhorrent mass effort to destroy the greatest democracy the world has ever known. It’s not an overstatement to say our very republic hangs in the balance. Pennsylvania’s lawmakers should be lauded for their patriotic and courageous insistence on reclaiming their constitutional mandate. Their brethren in the remaining five swing states should follow suit.

Stephen B. Meister is a lawyer and an opinion writer. Twitter @StephenMeister. Opinions expressed here are his own, not his firm’s.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.