The Western Journal is presenting this memorandum, written by two prominent conservative legal scholars, essentially verbatim, with only enough editing to format it for the Op-Ed section of our website. Because of the importance of the subject matter and its potential to impact the results of the 2020 presidential election, we felt it was even more important than usual to allow these newsworthy authors their own voice, with as light a touch from our editorial staff as possible. — Ed. note
THE CONSTITUTIONAL DUTY OF STATE LEGISLATURES IN A CONTESTED PRESIDENTIAL ELECTION
William J. Olson, William J. Olson, P.C., Vienna, Virginia
Patrick M. McSweeney, McSweeney, Cynkar & Kachouroff, Powhatan, Virginia
The American People deserve lawful presidential elections: “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders, 376 U.S. 1, 10 (1964).
During the 2020 Presidential Election, many of the so-called swing states, including Arizona, saw unprecedented — and unlawful — erosions of procedural safeguards as well as administrative irregularities on Election Day. People deserve an honest accounting of who won. Many Americans voted via a process – absentee ballots, including mail in ballots – that the bipartisan Jimmy Carter-James Baker commission identified as “the largest source of potential voter fraud” in the wake of the contested 2000 election. BUILDING CONFIDENCE IN U.S. ELECTIONS: REPORT OF THE COMMISSION ON FEDERAL ELECTION REFORM, at 46 (Sept. 2005).
With respect to identifying and remediating fraudulent or mistaken results, it is now or never, whatever can be done must be done.
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Examining the Assumptions of Andrew McCarthy
This analysis was inspired, indeed provoked, by an article written by Andrew McCarthy appearing in the historically Never-Trump National Review. Andrew C. McCarthy, “No, State Legislatures May Not Reverse the Result of the Election,” National Review (Nov. 21, 2020). Mr. McCarthy completely mischaracterizes the issue, establishing a straw man for him to set on fire.
He says: “The idea would be to appeal to Republican-controlled legislatures in states where presumptive president-elect Joe Biden won the popular vote — Pennsylvania, Michigan, Georgia, and Arizona — and persuade them to appoint slates of Republican electors who would cast each state’s Electoral College votes for Trump rather than Biden.” Well, if Biden actually was the presumptive president-elect, and if Biden had won the popular vote, Mr. McCarthy’s analysis would make sense. But he is assuming facts not in evidence.
Suppose that the Trump Campaign follows up on the “Opening Statement” that was outlined by Rudy Giuliani, Sidney Powell, and Jenna Ellis on November 19, with a case-in-chief which demonstrates the presence of rampant fraud — with votes being tabulated at overseas computers, with software designed to elect favored candidates, with stacks of ballots marked only for Biden and no down-ballot races, etc. What then is a state legislator to do, particularly if the hard evidence of pervasive electoral fraud comes in after the vote is “certified” in accordance with election laws that presuppose that only a brief time is required to detect and remove fraud, and the number of votes directly challenged is not outcome determinative?
Mr. McCarthy objects to the “president’s team … taking its case public in order to pressure Republican state legislators.” Mr. McCarthy would prefer if President Trump conceded and simply rode off into the sunset. Would he do that if as a candidate he thought that he had lost in a dishonest vote? Taking the case to the public makes all the sense in the world — after all, the President is the one official who represents all the People. And, a prima faciecase has been made that there was substantial computerized election fraud.
For every legal argument Mr. McCarthy makes, there is a stronger argument on the other side. He would ignore the language of Article I, Section 2 which vests in state legislatures the authority to determine the Manner of electing electors. Mr. McCarthy would have even those state legislators who become fully persuaded that the count was fraudulent to sit back and see the person that their constituents actually elected be de-throned by CNN and National Review. Legislators who want to carefully examine the election process, and take action if significant election fraud is found, would be simply giving effect to the vote of the People, not denying it. They should not, as Mr. McCarthy would want them to do, avert their eyes to the Big Steal.
The U.S. Constitution vests the total authority to select electors in state legislators, not Governors, Secretaries of State, or pundits. Mr. McCarthy would believe that laws enacted by states can diminish that authority. But they cannot. And if the counting of the votes from the November 3 election demonstrates foreign meddling, then state legislatures absolutely will be required to carry out the mission assigned them by Alexander Hamilton in Federalist 68 by exercising their authority, as the Constitution states, to “appoint” electors. Inspired by Mr. McCarthy, and in a desire to defend the process established by the Framers, this paper was written.
lot more,,,,,,,,,,,
http://www.westernjournal.com/twj-exclusive-viral-memo-changing-trump-legal-strategy/
Realist - Everybody in America is soft, and hates conflict. The cure for this, both in politics and social life, is the same -- hardihood. Give them raw truth.
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