Previously, I have laid out that the Constitution in Article II firmly places the selection of electors from a state in the hands of the state legislature. I have linked to an article that explains that the power of the state legislature is so absolute that a state legislature can call itself into session to address problems with the selection of electors even if the governor of the state refuses to call them into session. Here, I dive a bit deeper into different scenarios of how the endgame of selection of electors and the next president of the United States might play out.
At this writing, the evidence being marshalled by the various legal teams challenging the results in the six in-play states of Pennsylvania, Michigan, Georgia, Arizona, Wisconsin, and Nevada is sufficient to persuade the unbiased final decision makers in the state legislatures that the elections in those states have been hopelessly corrupted in a way that makes it clear that they cannot be accepted or certified. But the evidence is also that the corruption has been done in such a way that the actual results cannot be ascertained exactly anymore. The corrupt has been so hopelessly intermixed with the honest ballots both in the mail-in process and in the electronic process, that the actual results can never be known.
There are so many reports on the evidence being marshalled, that it is far beyond the scope of this piece to detail it. For a sampling check out this summary of a press conference by Rudy Guiliani or this one snippet of testimony before Pennsylvania legislators. Those do not even address the attack on the electronic manipulation by Dominion being pursued by Sidney Powell and Lin Wood and being discussed by Michael Flynn.
As one Supreme Court case (United States v Throckmorton) has said, “There is no question of the general doctrine that fraud vitiates the most solemn contracts, documents, and even judgments.” Surely fraud demonstrated in a timely manner throws out election results, too, if only the right state legislatures will step up and use their power to declare it so.
As a review, Art. II, Sec. 1, §2 of the Constitution directs that "Each State shall appoint, in such Manner as the Legislature thereof may direct" the electors to vote for president.
Before I address scenarios, let’s look at a few other factors at play. First, a federal law (3 U.S.C. §§ 1-21) exists which seeks to define various potential problems with the selection of electors and how they are to be resolved. One way the statute in sections 5 and 6 seek to resolve disputes within a state over who the electors are is to claim that when there are two slates of electors claiming to represent the state, that if the governor of the state has sent a certificate of ascertainment of a slate of electors to the U.S. Archivist more than 6 days before the date for the electors to vote, then the Congress should use what the governor certified. (3 U.S.C. §§ 5-6). (This year, elector voting day is Tuesday, December 14. According to the Congressional Research Service, that would make the deadline for a certificate of ascertainment from a state’s governor to be Tuesday, December 8.)
If a state legislature were to pick a different slate of electors than certified by the governor as specified in the statute, I believe that the plain text of Article II as well the precedents of McPherson v. Blacker and Bush v. Gore make it clear that the statutory default of using the governor’s certified electors over the state legislature’s selected electors is unconstitutional. To avoid getting to the point where the constitutionality of 3 U.S.C. §§ 5-6 is challenged, a state legislature needs to pick its slate of electors by December 8 and persuade the governor of the state to certify that slate. If the governor refuses to certify the state legislature’s slate, then there will be a case, probably decided by the U.S. Supreme Court, on whose slate should be counted. If the state legislature picks a new slate of electors between December 8 and before December 14 after their governor has certified otherwise, their power to make the final choice will have to litigated, but will likely prevail.
The other major factor to consider in the end game is what the Twelfth Amendment says is the trigger to putting the decision for who will be president in the hands of the U.S. House. Here is what the Twelfth Amendment specifies as to process:
“the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; -- The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; . . .”
The important words to be looked at here are “a majority of the . . . Electors appointed”. We see in Article II above is that states appoint electors. If every state and the District of Columbia (see the 23rd Amendment) appoints electors, the magic number of electoral votes needed to avoid kicking the decision to Congress is 270. But what if as I have seen some pundits urge, a state legislature, because of the massive fraud, declares that no electors should be certified (i.e., appointed) by their state, doing nothing to directly appoint their own slate of electors. That means they take the state out of the game completely. And THAT changes the number elector votes necessary (“a majority . . . appointed”) to pick the president without going to Congress.
Let’s do the math on one scenario. Assume that all five of the GOP controlled legislatures out of the six states in play (or a court) stop their governor from certifying any electors and do not appoint a slate of electors directly. And assume that the Democrat-controlled legislature and the courts in Nevada allows its governor to certify the Biden electors. That would mean that the total electors appointed would be 465 instead of the expected 538. A majority for picking the president would then be 233. Before counting the six states in play, Trump leads Biden by 232 to 227. If Nevada is added to that array for Biden and if the 5 other states have walked off the field by refusing to appoint electors, Biden wins 233 to 232 without going to Congress.
The point is that state legislatures refusing to certify and stopping certification of the corrupted election results in their state alone, without directly appointing electors will not stop a Biden victory.
Because courts don’t pick electors, and at most can stop the certification of an election in a state or direct that counting of ballots be in compliance with state law, I think it highly unlikely that a court decision in Nevada where Democrats control both the legislature and the governorship, will actually pick the Trump electors. At best it might produce no appointment of electors from Nevada. That would reduce the magic majority number to 267. And it would mean that any three or the right two of PA, MI, GA, AZ, or WI legislatures picking Trump electors after rejecting a corrupted process in their state would produce a Trump win. (Pennsylvania’s 20 votes plus one of either Michigan or Georgia’s 16 votes would produce 36 votes that would surpass the 35 needed to get to a majority of 267 should Nevada not appoint electors.)
Absent faithless electors voting in sufficient numbers for neither Trump nor Biden, I do not see a way that the decision gets kicked to the Congress.
Bottom line, the battle for the presidency is now solidly in the five in-play state legislatures controlled by the GOP in PA, GA, MI, AZ, and WI. If the right three of those legislatures not only refuse to accept the corrupted and completely untrustworthy counts for president in their state, but also appoint their own slates of electors that in their judgment best remedy the fraud, Trump will win. If they do that by next Tuesday, December 8 and persuade their governor to send in a certificate of ascertainment to that effect on that day, the rest of the election will play out as it normally does with a Trump victory.
If the right three state legislatures reject the corrupted results in their state and select their own electors after December 8, but before December 14, the constitutional fact that the state legislature’s decision prevails in cases of disputes will have to be settled, but Trump will likely win.
This is like the second-day battle for the high ground at Little Round Top at Gettysburg. If the right three state legislatures determine that the manner for selecting electors that they directed has not been followed, that the results are so hopelessly corrupted that nothing from the process can be trusted or certified, AND they do what two Supreme Court cases and the Constitution says they have “plenary authority”, the unquestioned power and duty to do - directly pick a slate of Trump electors – the die will be cast for the remainder of the process.
Those who care about rule of law, election integrity, constitutional government, and liberty should be contacting the GOP legislators in Pennsylvania, Michigan, Georgia, Arizona, and Wisconsin this week urging them to use the power delegated to them on behalf of the people of their states to reject corrupted elections and directly appoint electors for Trump.
Tom Glass lives in Northwest Harris County. Click here to reach his email. He is also on Facebook as Tom G Glass. He leads a group called Texas Constitutional Enforcement which can be explored at its website or Facebook group. And given the recent Facebook censorship, there are now Texas Constitutional Enforcement groups on Texan owned and operated Freedom Lake and Blabbook, as well as MeWe and Wimkin.