State Legislatures Have Absolute Authority To Select Electors

Legislators have a vital constitutional role to play and must respond to voting irregularities and fraud

The public has begun to appreciate the extent of election irregularities and vote fraud in the Nov. 3 election. The riveting testimony by eyewitnesses to these illegal activities during legislative hearings in Pennsylvania, Michigan, Georgia, Nevada and Arizona has prompted a serious reexamination of the results of the election.

Legislators are learning that they have a vital constitutional role in responding to the irregularities and fraud. They have the authority to appoint electors who will ultimately cast votes that elect the president. (We documented that authority in our recent paper: “The Constitutional Duty of State Legislators in Contested Presidential Elections.”)

In Federalist No. 68, Alexander Hamilton explained that the electors Clause giving state legislatures this plenary authority was intended to put an “obstacle” in the path of those who would use “intrigue” and “corruption” to elect the president. Now more than ever before in our history, state legislators must exercise that authority.

Opponents of such legislative action have raised numerous objections. Two stand out:

First, opponents urge legislators to ignore the evidence of irregularities and fraud because the election results have been certified and that should put an end to the controversy. Legislators are not bound by the election processes that led to these certifications. If they conclude that the certifications were unwarranted because of the illegalities that have been exposed, they have the authority and the obligation to correct the certified results.

Second, opponents argue that legislators are powerless to act because governors are not willing to call them into special session. Under the Constitution, legislators are not dependent on the governors’ call for special sessions in the states involved. They can act on their own, as the United States Constitution specifically empowers them to do. The Electors Clause, Article II, § 1, Clause 2, makes this clear:

Read the rest from William J. Olson and Patrick M. McSweeney HERE

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