How Trump Gets Justice for Election Irregularities

“Just nonsense,” CNN quoted an anonymous former senior U.S. intelligence official responding to Donald Trump’s “baseless” allegation that Obama had candidate Trump’s “wires tapped” during the 2016 presidential campaign. A more careful look at the CNN article revealed hints of the truth peeking through from behind the carefully worded denials. 

Kevin Lewis, a spokesman for Obama “denied” Trump’s allegation, stating, “no White House official ever interfered with any independent investigation led by the Department of Justice . . . neither President Obama nor any White House official ever ordered surveillance on any U.S. citizen.” 

Now we know that the Department of Justice was indeed surveilling the Trump campaign with the knowledge of President Obama. Did Obama ever “order” it? Probably not in so many words. But the substance of what Trump said in that fateful March 2017 tweet was true.

Trump gets things wrong. He exaggerates. He makes mistakes. But it’s wrong to characterize him as an out-and-out liar. When you unwrap his sometimes inartful declarations, you usually find a kernel of nuanced truth behind the bombast. Nobody cares when Biden lies because the lies follow the tide of the elite’s approved narrative. Trump is hated precisely because he sometimes correctly challenges official “truths.” He upsets the doublespeak and says the quiet part out loud.

Because of that history, I’m hesitant to dismiss his election fraud claims. And we’re seeing some familiar parsing by the mainstream media. 

“There’s no voter fraud,” has been amended to “there’s no widespread voter fraud.” So should we all accept non-widespread fraud, whatever that means? I’ll leave it to other authors to inventory and assess the mosaic of statistical anomalies and anecdotal irregularities. Maybe these are just the product of wishful thinking by a sore loser. Our tech overlords, who so vigorously censor and undermine the pinpricks of election doubts, might be right. But if Trump is right, does he still have a path to victory in the 2020 election? 

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.

In 2000, the Supreme Court cited the McPherson precedent noting that, “the state legislature’s power to select the manner for appointing electors is plenary,” and that, “it may, if it so chooses, select the electors itself.” The word, “plenary,” means, “full, complete, covering all matters.” This suggests that the state governor would not have the authority to veto direct action by the legislature directly picking the electors and setting aside the tainted results of a popular election. 

The 2020 Supreme Court appears eager to have the state legislatures take the lead on resolving challenges to the final vote count. In July, the justices ruled, “Nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion.” The ruling concerned a state law that imposed a $1,000 fine on “faithless electors,” i.e. electors who did not vote for the candidate who won the popular vote in the state. While it did not strictly approve an after-the-fact intervention by the legislature, the precedent can certainly be read to permit that approach.

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. From his perch in Washington D.C., he can’t possibly assess state election shenanigans as well as the state itself. Ignore the media. Stop trying to follow the whack-a-mole patchwork of post-election court cases. A state legislature, not a federal court, is in the best position to craft a remedy to widespread fraud or irregularities. 

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. This is consistent with federal law which provides, “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.” 

Without that failsafe remedy, courts and election officials can simply ignore legislated election procedures. Further, state legislatures are accountable to voters and have the democratic authority that courts lack. Trump will have won nothing by convincing a rogue federal judge to award Electoral College votes against the will of a state’s legislature. 

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. 

If, as Tucker Carlson complained, Sidney Powell and Rudy Giulliani can’t back-up their allegations of sweeping election fraud or irregularities, we can reasonably anticipate that Trump’s path through the court system will reach a dead end and Biden will be president in January. But if the Election Day shenanigans amount to a clear subversion of the results, Trump has a path to a remedy through the state legislatures of the relevant states.

About Adam Mill

Adam Mill is a pen name. He works in Kansas City, Missouri as an attorney specializing in labor and employment and public administration law. He graduated from the University of Kansas and has been admitted to practice in Kansas and Missouri. Mill has contributed to The Federalist, American Greatness, and The Daily Caller.

Photo: Drew Angerer/Getty Images

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