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The Senate of the 90th Min­nesota Leg­is­lature. | Wiki­media Commons

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.