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.
Case or ControversySo 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.
Legislative HearingsApart from the many court cases, legislative hearings are now underway in Pennsylvania, Michigan, and Arizona. Other swing states will hopefully follow suit.
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.
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.
Burden of ProofBesides 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).
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.
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.
Constitutional MandateThe 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.
- "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."
- "Recognizes substantial irregularities and improprieties associated with mail-in balloting, pre-canvassing, and canvassing during the November 3, 2020 election; and
- "Disapproves of the infringement on the General Assembly’s authority pursuant to the United States Constitution to regulate elections; and
- "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
- "Declares that the selection of presidential electors and other statewide electoral contest results in this Commonwealth is in dispute; and
- "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
- "Urges the United States Congress to declare the selection of presidential electors in this Commonwealth to be in dispute."
Dueling ElectorsIf 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.