Under the U.S. Constitution, state legislatures have power over presidential elections. They may have to use it.
Over the past week, allegations of widespread election fraud have been made in several crucial 2020 swing states. Lawsuits filed by the Trump campaign contain sworn affidavits from election officials who claim they were directed to ignore or violate state elections law in both Michigan and Nevada, with campaign lawyers claiming there are more lawsuits to come.
What recourse is there when the outcome of an election is so disputed? Recounts and recanvasses, with representatives from both parties present, can identify and correct some discrepancies — such as the one in Antrim County, Michigan, where officials discovered 6,000 votes cast for Trump had been incorrectly recorded as Biden votes. But what about the allegations reported by Detroit News, local Nevada news, and other sources that indicate hundreds or even thousands of ballots have been cast illegally, by those who are ineligible on account of age, residence, or even being dead? What about absentee ballots received after a state’s deadline, as reported in Pennsylvania?
Litigation is ongoing in several states regarding just those things. The courts will have to decide if these claims have enough evidence to warrant legal action, and if they do, what the remedy may be. There are several available options, including the throwing out of ballots received after original deadlines, or those counted without proper poll challengers. Officials may also examine and recount absentee ballots, or, in an unlikely remedy, some states could even call for a revote, if the actual impact of alleged voter fraud on the outcome cannot be accurately determined.
Fortunately, there is another possible avenue to address such discrepancies. Article II, Section I, Clause II of the U.S. Constitution states: “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.” The Founders made it explicit that the state legislatures, and not any other body, would be responsible for determining the process for choosing presidential electors. This clause grants state legislatures the ultimate authority over how electors in their state are chosen, meaning a state legislature has the ability to pick a slate of electors that is independent from what the vote in their state indicated.
But should the state legislatures actually take this step? To do so, certainly at this stage, would be dangerous, both in terms of the precedent it would set and the practical consequences in the short term, for there would likely be more riots in cities and distrust in the system. However, conducting a thorough investigation may also be the option most likely to restore trust in the system in the long term. Much of what is being alleged would be in violation of state election laws, which are the original way state legislatures had chosen for the appointment of electors. If these were indeed violated, state legislatures would have grounds to intervene, as the manner they used for choosing electors was not followed.
The course for state legislatures to take, then, would be to follow the litigation and recanvasses now occurring, as well as begin their own parallel investigations, using their subpoena powers to try to determine whether state election laws were violated. If state election laws has been violated, the next step will be to determine to what extent these violations affected the final results. If it is found that there were election violations that could have changed the outcome, and there is no other relief, then state legislatures must use their constitutional authority to rectify the matter and determine which electors would have most likely been chosen had their manner of choosing electors been followed.
This is, admittedly, a drastic step, but one that, given the circumstances detailed above, may be taken under the U.S. Constitution. This must be a measured process, undertaken only as a last resort, not as a measure to guarantee a result, but once all possible remedies and alternative explanations have been exhausted. To have a state legislature choose separate electors through this process might set a dangerous precedent, but allowing voter fraud and election law violations in direct contravention of the U.S. Constitution to determine the outcome of the presidential election would be more dangerous still.
Gabriel Powell is a sophomore studying politics.