In a recent episode of Sunday Morning Futures on Fox News, host Maria Bartiromo interviewed legal experts Alan Dershowitz and Ken Starr on Trump lawyer Rudi Giuliani’s claims of election fraud during the 2020 presidential election. Giuliani has alleged that there is a common pattern in the fraudulent handling of absentee ballots in some cities and that the pattern was set by someone in Washington.
Dershowitz admitted that there is enough probable cause to investigate the election. The allegations made by Giuliani are of a serious nature. However, the question is which institution has the constitutional power to look into such issues — the state legislature or the courts? Dershowitz suggested the creation of a Vote Integrity Panel (VIP) that would be made up of non-partisan former judges, justices, and so on. This panel should have the power to deal with any complaints regarding an election, whether it be before, during, or after one.
He lamented, however, that everyone else, including the media, is partisan. Dershowitz pointed out that the American public wants to know whether the accusations leveled by Giuliani are true or false. But he is concerned that there might not be enough time to explore the issue satisfactorily before the meeting of the Electoral College scheduled for Dec. 14.
Starr recounted the prediction of James Baker and Jimmy Carter back in 2000 when they suggested that absentee and mail-in voting present a huge potential for election fraud. He said that this is exactly what Giuliani is suggesting happened during the 2020 presidential election. He agreed with Giuliani on the matter of it being the legislature that has the ultimate power over the election.
Georgia legislator really troubled by evidence of election fraud
Maria pointed out that the Trump team believes their best chance of succeeding in overturning election results is in the states of Georgia and Wisconsin. Starr agreed with that assessment, and added that the Georgia legislature is really troubled by some of the evidence that clearly indicates election irregularities. In the same way, he said, the use of drop boxes in Wisconsin also raises concerns of fraud.
Maria questioned Dershowitz on whether Giuliani has provided enough evidence to convince the Supreme Court on election fraud. Giuliani has claimed that he has 1,000 affidavits supporting his case. Dershowitz said that Giuliani has presented “retail evidence that have to be determined to be true by cross-examination and witnesses.” He said that state legislatures do have the power to pick the electors before voters cast their votes.
However, the real unanswered constitutional question is whether the state legislatures can select electors after votes have been cast by the voters in an election that is known to have been fraudulent in some way. Dershowitz said that if a state legislature decides to “determine who the electors should be and changes the electors from Biden to Trump,” the Supreme Court will eventually be forced to find an answer to the question.
Giuliani explained in a video: According to Article 2, Section 1, Clause 2 of the United States Constitution to reaffirm the power of the state legislature, the state legislature shall be the sole regulator of elections for the president and the selection of electors. As shown in the case of McPhearson vs. Blacker (1892), whatever provisions may be made by statute or state constitution to choose electives by the people, the legislature has the right to resume that power at any time. The state, after granting the franchise in the special context of article two, can take back the power to appoint electors. And this is particularly true when there are indications of fraud in the election.