This is from a piece by an attorney, writing under the pseudonym Adam Mill, on the American Greatness blog, which is a reliable Trumpy website I often read.
I don’t think the pseudonym diminishes his argument. I’m sure he’s just trying to keep his day job.
I don’t think the scenario outlined is going to happen. But this is the mechanism for President Trump winning if there is any chance for it. I think the Trump team is trying generally to create a suspicion of widespread fraud in order to get the state legislatures to step in and say the election cannot be trusted.
This is an abridged version of what “Mill” writes:
Let’s start with the assumption that the state legislatures of four or five states become convinced that voting irregularities have so compromised the true outcome of the popular vote that it cannot be determined using the rules established by the legislature. This could take the form of an assessment of outright fraud. But it could also mean election officials commingled so many illegal votes into the final tally that the real outcome can no longer be reconstructed after a thousand recounts.
In many of these states, courts and election officials changed ballot eligibility rules without the permission of their legislatures. As noted by the Wall Street Journal, “Democrats and their allies have been bringing [hundreds of] cases for months, many aimed at giving voters more flexibility in submitting ballots by mail during the pandemic—and counteracting what they say are Republican efforts to limit voting rights.”
But it’s not up to courts to change voting rules. The Constitution gives state legislatures the right to direct the manner in which electors will be chosen in their states. In the 1892 case of McPherson v. Blacker, the Supreme Court ruled,
The constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that the majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object.
The 2020 Supreme Court appears eager to have the state legislatures take the lead on resolving challenges to the final vote count.
Thus, the real audience for these fraud and irregularity allegations are the legislatures of Michigan, Pennsylvania, Georgia, Wisconsin, Nevada, and Arizona. Ignore Attorney General Wiliam Barr . . . Ignore the media. Stop trying to follow the whack-a-mole patchwork of post-election court cases.
If such irregularities were sufficient to have subverted the state legislature’s right to establish the manner of picking the electors, then direct appointment is the only effective remedy to protect that constitutional role.
Voiding popular election results in an individual state is an extreme remedy that might not hold up in the absence of convincing evidence of irregularity sufficient to invalidate the popular vote within the state. Absent a state legislature’s vote to set aside a compromised result, I do not foresee the U.S. Supreme Court ruling to change the results.
Republicans control the legislatures in Arizona, Michigan, Pennsylvania, Georgia, and Wisconsin. The obscure members of these state houses will soon come under intense pressure by the Left to stay out of the election litigation.