Speaking to an occasionally raucous but mostly disgruntled panel of Pennsylvania Republicans, President Trump’s personal lawyer Rudy Giuliani and his campaign counsel Jenna Ellis on Wednesday floated the idea that the state Legislature could decide on its own to give Pennsylvania’s 20 Electoral College votes to Trump, despite the state’s certifying that Joe Biden won the Nov. 3 election in the state.
“It’s the state Legislature that controls this process,” Giuliani told a panel of Republican legislators. “It’s your power. It's your responsibility. And I think you know, and you have to convince the rest of your members, Republican and Democrat, [that] they owe that to the people of their state, and they owe that to the people of the United States.”
The public meeting held Wednesday afternoon by the Senate Majority Policy Committee, and run by Republican Sen. Doug Mastriano, questioned the validity of the Pennsylvania election results and cast doubt on the vote-counting process. President Trump called in to the meeting and repeated false claims that he won the election “by a lot,” and that it was stolen from him.
President-elect Joe Biden beat Trump in Pennsylvania by roughly 81,000 votes, and by about 6 million in the national popular vote.
Giuliani spent much of the hearing railing against mail-in ballots and alleging that Republican poll watchers were kept from observing the ballot-counting process, a claim that so far has not held up in court.
A number of witnesses alleged suspicious activity during the ballot-counting process, such as hundreds of thousands of ballots sitting unopened in boxes and then mysteriously disappearing. Giuliani and Ellis maintained this was evidence of a coordinated fraud that also involved officials in a half dozen other states, and said it was sufficient grounds to reverse Tuesday’s certification of Biden’s win in the state.
The session was billed as a hearing, but it took place at the Wyndham Hotel in Gettysburg, Pa., not in the state capitol in Harrisburg, and witnesses — including self-described data experts and amateur statisticians, Republican observers during the ballot-counting process, and a few voters who reported suspicious activities when they cast their ballots — were not sworn in.
When asked about a possible remedy, Ellis cited the U.S. Constitution, which says that each state appoints a number of electors based on the number of senators and representatives the state has in Congress, and empowers state legislatures to determine the manner of choosing them.
Under the law in Pennsylvania, the governor appoints electors, in accordance with the state’s popular vote returns. Pennsylvania Attorney General Josh Shapiro, a Democrat, said Tuesday that the state’s presidential electors have been chosen and certified in accordance with the popular vote in the state.
“This is exactly how the process should happen — the people vote, those votes are counted, and the electors chosen reflect the will of the people,” he said on Twitter.
What Ellis and Giuliani seemed to be pushing on Wednesday, among other potential “remedies,” was to have the Legislature reenter the process by sending its own slate of electors to the Electoral College, which would override the will of voters in Pennsylvania.
“You could call for a special election,” Ellis said. “You can direct the manner of your electors. You have a variety of constitutional options, but one option should not be to ignore it and to certify a corrupted, irredeemably compromised election.”
Ellis later acknowledged that there’s an established process for selecting electors in Pennsylvania, then seemed to suggest that because the election has been corrupted — an unsubstantiated claim — the procedure no longer applies.
“Even though you have a manner in which your electors are generally selected in Pennsylvania, and that's worked for the past presidential election,” she said, “this is an election that has been corrupted. And so you can't go through that method. The Legislature is the authorized entity in the Constitution that selects the manner. You can take that power back at any time.”
Since the election, lawyers for the Trump campaign have filed more than three dozen suits seeking to invalidate the election results in various states, and virtually none of them have prevailed, or even gotten past preliminary hearings. Notably, they have stopped short of alleging fraud or corruption in court filings, where lawyers making bad-faith claims can be subject to sanctions. Wednesday’s “hearing” included a witness who said a poll worker refused to tell him whether to insert his ballot face up or face down into the scanner, and an observer who said her Democratic counterparts gave her mean looks. Allegations that Republican observers were kept too far away to accurately scrutinize processing of ballots — which have already been raised and dismissed in court — were repeatedly aired.
One issue that kept surfacing was the allegation that some 700,000 more mail-in ballots were counted than had actually been distributed. “You sent out, in the commonwealth of Pennsylvania, one thousand, eight hundred and twenty-three, one hundred and forty-eight absentee or mail-in ballots,” Giuliani said, (presumably a slip of the tongue for 1,823,148.”)
“You received back 1.4 million, approximately. However, in the count for president, you counted 2.5 million. I don’t know what accounts for that 700,000 difference between the number of ballots you sent out, and the number of ballots in the count.”
That would be prima facie evidence of something wrong, except that Giuliani’s premise appears to be completely mistaken. On Oct. 13, the Associated Press reported that “with three weeks to go before the Nov. 3 election, more than 2.6 million registered voters have applied for a mail-in ballot in Pennsylvania.” (Emphasis added.) The day after the election, Pennsylvania Secretary of State Kathy Boockvar announced that more than 3 million mail-in ballots had been returned and were being counted.
Fact Check: The canvass of mail-in ballots in Philadelphia was live-streamed and fully open to observers from the Republican, Democratic, and Green parties.
— Commissioner Al Schmidt (@Commish_Schmidt) November 25, 2020
Giuliani, backing Ellis’s recommendation, told the panel: “Given the fact that this is your sole constitutional right and authority, you can always assume constitutional authority that you’ve delegated back.” The authority for a state to retroactively override its own procedures isn’t explicitly stated in the section of the Constitution that Ellis and Giuliani relied upon. Congress, under the Constitution, sets the date on which electors are to be chosen. This year, it was Nov. 3, which means that the electors have already been chosen.
Additionally, these assertions appear to be at odds with federal law, which gives states until Dec. 8 to determine the winner of the popular vote, a determination that must be made in accordance with the laws of the state as they existed on Election Day. On Dec. 14, the nation’s electors will cast their votes in their respective states. Those votes are sent to the newly elected Congress, which will count the votes on Jan. 6.
In previous interviews with Yahoo News, experts said that having state legislatures appoint their own electors is unlikely to succeed, especially in the absence of credible evidence of widespread fraud.
If there’s a dispute over electoral votes in Congress, the House and the Senate meet separately and vote on which set of electoral votes to count, according to elections expert Adav Noti, of the Campaign Legal Center and National Task Force on Election Crises. If they disagree, there’s a final tie-breaker provision in federal law that says the electoral votes certified by the state are the votes that get counted.
As the Trump campaign’s lawsuits continue to fail, Trump himself appears to be eyeing the elector strategy as a path toward victory. CNN reported Wednesday evening that President Trump invited the Republican lawmakers from the hearing event to the White House and is expected to meet with them.
Trump apparently tried to do this in Michigan. Last Friday he met with Michigan House Speaker Lee Chatfield and Senate Majority Leader Mike Shirkey at the White House, in what was viewed as an attempt by Trump to convince the GOP legislators to cooperate with a plan to override the will of voters in Michigan, where President-elect Joe Biden won by more than 150,000 votes.
After the meeting, the lawmakers issued a joint statement saying that they intend to “follow the law and follow the normal process regarding Michigan’s electors.”
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