Since Election Day, three distinct concerns have called into question the legitimacy of the 2020 presidential election: fraud, the security of voting machines and software, and violations of state election codes. A series of court cases filed by President Donald Trump and his voters seek judicial intervention to true the vote, but with limited success.
Republican legislators in several swing states have also requested the secretary of state audit the results before they are certified. As the recount in Georgia is proving, however, allowing election officials to oversee the process is providing no more confidence in the outcome.
There is a solution to this mess, but it requires state legislators to remember that we are a republic and that, under our constitutional system, they have the ultimate and exclusive authority to appoint electors however they best see fit. The plain language of the so-called Electors Clause of the Constitution, Article II, Section 1, Clause 2, establishes this authority by providing: “Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.”
While all state legislatures have currently opted to appoint electors based on the popular vote of the state (or districts in the case of Nebraska and Maine), the Constitution does not provide for the appointment of elector by popular vote, leaving instead the manner of selection to the legislatures of each state.
The Supreme Court stressed this fundamental of our constitutional republic more than a century ago in McPherson v. Blacker, writing: “The question before us is not one of policy but of power, and while public opinion had gradually brought all the States as matter of fact to the pursuit of a uniform system of popular election by general ticket, that fact does not tend to weaken” the reality that previously, state legislatures chose electors by a variety of methods, including appointment by legislative vote.
For instance, as McPherson summarized, “At the first presidential election, the appointment of electors was made by the legislatures of Connecticut, Delaware, Georgia, New Jersey, and South Carolina.” State legislatures also chose electors in the second presidential election. Over the years, the McPherson court explained, the states moved to the selection of electors by popular vote, and by 1832, electors were “chosen by general ticket in all the states excepting South Carolina, where the legislature chose them up to and including 1860.”
This Year, Legislators Should Choose the Electors
Another 100-plus years have passed since McPherson, but as the Supreme Court stressed then, “the prescription of the written law cannot be overthrown because the States have latterly exercised in a particular way a power which they might have exercised in some other way.” Or, more simply stated, the states’ use of popular vote to select electors in recent years does not alter the plain meaning of the Electors Clause, which grants the state legislature the exclusive authority to select electors.
That is exactly what the state legislatures should do this year in those several states with serious issues of voting integrity — not based on the partisan control of the legislative branch, however, but based on the legislators’ considered judgment after they conduct an independent investigation into the claims of fraud, computer hardware and software malfeasance, and violations of the state election code.
While claimed violations of the state election code seem the most vanilla of the attacks on the integrity of the 2020 election, they are but cheating by another name. Further, state legislatures should care deeply if election officials — whether at the local levels or as high as the secretary of state — ignored the mandates the lawmaking arm of government established to ensure the legitimacy of elections.
Election Officials Ignored State Laws
The situation in Pennsylvania provides a perfect example of election officials blatantly ignoring the statutes passed by the legislature. Section 13808(g)(1.1) of the Pennsylvania Election Code prohibits the inspection of absentee and mail-in ballots before 7:00 a.m. on Election Day. Election officials in Philadelphia and elsewhere, however, inspected the ballots early to determine if voters had included the interior secrecy sleeve required under state law.
The election code likewise provided that “no person observing, attending or participating in a pre-canvass meeting may disclose the results of any portion of any pre-canvass meeting prior to the close of the polls.” Yet at 8:38 p.m. on the eve of Election Day, the deputy secretary for elections and commissions emailed county election directors “guidance” to “provide information to party and candidate representatives during the pre-canvass that identifies the voters whose ballots have been rejected,” to allow those voters to “cure” the mistakes. Significantly, the election code also does not provide for the curing of absentee and mail-in ballots.
Notwithstanding the guidance from the Pennsylvania deputy secretary, some local election officials stayed true to the mandates of the Election Code, refusing to inspect the mail-in ballots prior to Election Day and refusing to share voters’ information with party representatives. As a result, voters in Pennsylvania faced disparate rules, with some votes counting and other not, implicating the Equal Protection Clause of the Constitution as well as the Electors Clause.
While federal courts have the authority to adjudicate violations of Article II, Section 1, Clause 2, as well as the Equal Protection Clause, Pennsylvania’s legislature should not leave the matter to the courts but take ownership of the issue. After all, it was the legislature that passed the election code that election officials ignored. Let the legislators demand an accounting to assess how the disregard for their rules affected the popular vote.
States Should Check Ballot Rejection Rates
Similarly, in other states where officials have ignored the election code by allowing the unauthorized curing of ballots, failing to enforce statutes requiring verification of signatures, or excluding poll watchers during the counting process, the legislative branch should intervene and determine the effect — if any — the election-code violations had on the results.
One angle here for legislators to consider is whether 2020 presented an anomaly in the number of rejected ballots, as that would indicate local election officials ignored the mandates of the election code. Rep. Doug Collins, the Georgia Republican who is leading the Trump recount effort in his home state, highlighted just such a disparity in rejection rates, from 3.5 percent in 2018 to 0.3 percent in 2020.
This significant decrease in rejection rates caused Collins to question in a letter to the secretary of state whether an adequate (or any) signature verification, as required by Georgia law, occurred. It shouldn’t be Trump or Collins to whom the secretary of state must answer, however, but to the Georgia legislature.
A similar disparity exists in Pennsylvania, according to a court filing in Trump’s lawsuit there. The rejection rate for mail-in ballots in 2018 was 4.4 percent but only .04 percent for the 2020 general election, and that difference alone could change the outcome of the Pennsylvania race, according to the expert’s declaration. While a court is considering these claims, the legislative branch holds a higher authority and should question whether election officials followed the mandates of the election code.
Likewise, the Michigan legislature should question whether rejection rates of the mail-in ballots matched the trend of past years or even the presidential primary. In Michigan, 10,694 votes were disqualified from the primary, and at the time, Michigan’s Secretary of State Jocelyn Benson predicted that number could double in the general election. Whether it did and how it compares to 2016 will provide the legislative branch some sense of the seriousness election officials held in applying the election code.
State legislatures should likewise investigate claims of fraud, such as in Michigan where witnesses have made two distinct allegations of fraud, both involving the TCF Center in downtown Detroit where mail-in ballots were processed.
The first report is that in the wee hours of the night, unknown sources dropped off ballots, suggesting illegal ballot harvesting had occurred. While it might be difficult for the legislative branch to assess the validity of this charge, it has the power and resources necessary to investigate, including by, if available, obtaining security-camera footage of the area. The public has a right to know whether these claims are spurious or genuine, and if the legislative branch is unable to answer the question, it needs to confess that fact to Michiganders and enact safeguards for future elections.
The second charge of fraud comes in the form of a sworn affidavit from IT contractor Melissa Carone, who worked at the TCF Center on Election Day. According to Carone, multiple times throughout the day she observed election workers at the Detroit location scan the same 50-ballot batches of votes, resulting in the same ballots being counted four or five times. Unlike the claims of a late-night ballot drop, Carone’s sworn statement can be easily proved or disproved with a hand recount of ballots from the TCF Center. The Michigan legislature should demand such a recount take place and oversee the process.
We Must Ensure Election Integrity
A more thorough audit of the voting tallies by the legislatures in Michigan and other states is also warranted, given the growing concerns about the security of the hardware and software used to determine the winner of the 2020 election. While since Election Day, the mainstream media has portrayed concerns over the security of computers systems as conspiracy-theorizing, many of the same outlets had previously done in-depth reporting on the vulnerabilities of the system.
We now have an affidavit filed in court proceedings by attorney Sidney Powell of an individual claiming to be a “direct witness to the creation and operation of an electronic voting system,” called Smartmatic, that “could change the votes in elections.” We also have an affidavit attesting that in Pennsylvania, the data on a live feed for each county revealed an update that reported an increase of 90,022 absentee votes, but total votes increased by only 9,534. “That means in-person votes had to have declined by 80,488,” which is impossible.
These claims might seem unbelievable, but they become more plausible with every proved instance of computer “glitches.” In Michigan, for instance, the failure of one county to update software caused approximately 6,500 Trump votes to be tallied to Biden until the error was discovered. While the secretary of state claims the mistake was a one-off, the citizens of the Midwest battleground state deserve assurances that that is true. Similarly, a hand-count in one Georgia county revealed a computer problem that cost Trump a net 800 votes.
The state legislatures should not leave these concerns to the secretary of state but should instead initiate and oversee their own audit of the election hardware and software, along with a probe of election-law violations and other claims of fraud. Anything less will leave half of America questioning the legitimacy of the 2020 election.
Following an investigation of these concerns, the state legislatures should vote to directly appoint electors as they see fit. That vote might, or might not, coincide with the preferred outcome of those seeking an audit of the election.
Given that the Founding Fathers granted the state legislatures the ultimate authority to appoint electors, however, by directly appointing the electors, the legislatures will render either outcome constitutionally legitimate. Then when those legislators are up for reelection, we will have a feel for the true will of the people.