Ken Blackwell: This is How We Win


Summary Points

• Article II of the Constitution makes legislatures the final authority on presidential elections: state lawmakers appoint electors, Congress accepts electors.

• Legislators can decide whether violations of election laws result in a failed election, and Article II and 3 U.S.C. § 2 empower them to devise a remedy, including directly appointing electors. Congress then votes on which elector slate to accept.

The Constitution in Article II and the Twelfth Amendment say that legislatures—not courts—are the final authority to settle election disputes for the Presidency. The Electors Clause provides, “Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors.” Legislatures do this first by adopting election laws for presidential elections. As 3 U.S.C. § 2 notes, when a state fails to choose electors on Election Day, legislatures can then determine the manner of appointing electors. In addition
to making post-election contest statutes, states have the authority to directly appoint electors. The Florida legislature used this option in 2000 declaring George W. Bush the winner, but when the Supreme Court also decided Bush v. Gore at the same time, it was not necessary to enforce the legislature’s joint resolution.

Republican legislatures should do likewise and summon Trump electors to vote on Dec. 14. On Jan. 6, Republicans in Congress should fight to count those elector certificates.

It is not necessary to prove a number of fraudulent votes that exceeds the margin. For legislators to deem the election a failed election, there need only be a sufficient number of illegal acts or irregularities to put in doubt which candidate won more legal votes.

Most 2020 voting irregularities can be explained by conventional illegal activity. No thriller-movie international conspiracies are necessary, or even deliberate fraud. Examples:

In Pennsylvania (margin 82,000), over 800,000 ballots violated one or more statutes, such as Philadelphia, where 345,000 ballots were canvassed when Trump observers were kept more than 20–150 feet away from the canvassing tables, unable to see ballots.

In Wisconsin (margin 20,000), absentee ballots are not valid unless a voter applies for it. Over 221,000 absentee ballots cast have no application on record.

In Arizona (margin 12,000), an audit of the Maricopa County machines showed a 3% tabulation error rate, which translates to 102,000 votes.

In Georgia (margin 13,000), illegal votes include: 15,700 had moved to another state, 2,600 felons, 5,000 registered in another state, 1,000 had no residential address.

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