Experts Scorch Doug Mastriano’s Call for New Electors | Law & Crime
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Experts Scorch Pennsylvania Senator’s ‘Nakedly, Indefensibly Anti-Democratic’ Attempt to Replace State’s Electoral College Voters

Pennsylvania State Sen. Doug Mastriano (R).

Pennsylvania State Sen. Doug Mastriano, a Republican whose district surrounds Gettysburg, on Saturday announced that he and his colleagues in the GOP-led state legislature have planned to introduce a resolution to appoint a new slate of electors to cast the state’s Electoral College votes next month — in essence an attempt to undo the certified results of the 2020 election in his state.  Mastriano cited what he believes to be “mounting evidence” that the 2020 election was “compromised.”  Legal experts, who for weeks have noted that such an approach would violate the U.S. Constitution, immediately castigated Mastriano for continuing to back President Donald Trump’s baseless claim that he won Pennsylvania and somehow has a miraculous, viable path to electoral victory.

“There is mounting evidence that the PA presidential election was compromised. If this is the case, under Article II, Section 1.2 of the US Constitution, the state legislature has the sole authority to direct the manner of selecting delegates to the Electoral College,” Mastriano tweeted Saturday morning.

“This power was given to the state legislature for the purpose of safeguarding the appointment of our President, specifically contemplating corruption and ensuring that the people are not disenfranchised through a corrupt election process. Therefore, we are introducing a Resolution to exercise our obligation and authority to appoint delegates to the Electoral College.”

Mastriano made similar comments Friday evening during an interview with the now-indicted former White House Strategist Steve Bannon.

“We’re going to take our power back; we’re going to seat the electors,” Mastriano said, claiming without evidence that Joe Biden only won the state by more than 80,000 votes because Democrats “cheated.”

President Donald Trump reacted directly and favorably to Mastriano’s plans with a favorable mention and a retweet which made clear his support:

Pennsylvania’s election website says Biden won 50.02% of the votes (3,459,923 total, including 1,409,341 case on election day, 1,995,691 cast by mail, and 53,168 cast provisionally).  Trump won 48.84% of the vote (3,378,263 total, including 2,731,230 cast on election day, 595,538 cast by mail, and 50,874 cast provisionally).  Libertarian Jo Jorgensen won 1.15% of the votes (79,397 total).  The “totals do not include any votes from mail ballots received between 8 p.m. on election day and 5 p.m. the following Friday,” the state’s website proclaims.  To sum up the state’s numbers, Trump voters mostly cast ballots in person; Biden voters largely voted by mail.  (The same ballots indicated that a Democrat won election as state attorney general, but Republicans won races for auditor general and state treasurer.)

Despite the fact that switching Pennsylvania’s 20 electoral votes from Biden to Trump would not change the outcome of the election, legal experts have already said Mastriano’s plan is “exceedingly unlikely to work.”

As previously reported by Law&Crime, Mastriano’s assertion that there is “growing evidence” to suggest voting irregularities was unanimously rejected Friday by three Republican-appointed judges on the Third Circuit Court of Appeals.

“Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here,” U.S. Circuit Judge Stephanos Bibas—an appointee of President Trump—wrote for the court.  He further stated:

The Trump Presidential Campaign asserts that Pennsylvania’s 2020 election was unfair. But as lawyer Rudolph Giuliani stressed, the Campaign ‘doesn’t plead fraud. . . … [T]his is not a fraud case.’ … Instead, it objects that Pennsylvania’s Secretary of State and some counties restricted poll watchers and let voters fix technical defects in their mail-in ballots. It offers nothing more.

Additionally, under Pennsylvania law, Gov. Tom Wolf, a Democrat, maintains the authority to appoint electors based on the state’s popular vote. Pennsylvania Attorney General Josh Shapiro, also a Democrat, on Tuesday reiterated that the state’s electors had already been chosen and certified in accordance Joe Biden’s popular vote victory.

Mastriano’s efforts would also be a violation of the U.S. Constitution, which provides that Congress set the date on which electors are to be chosen.

“That day this year was Nov. 3,” wrote Harvard Law professor Lawrence Lessig in a USA Today op-ed outright rejecting the theory. “And if any state selected its slate of electors on a day other than Nov. 3, it would violate federal law, and that slate could therefore not be counted.”

University of Texas School of Law professor Steve Vladeck, a constitutional law expert, said Mastriano’s “insane” comments were simply lies.

“Never in my life did I think that I’d see elected officials in the United States acting in such nakedly, indefensibly anti-democratic ways — and blatantly lying about why. It’s not going to matter, but this is insane — and anyone not condemning this nonsense is complicit in it,” he wrote.

“The problem with this fraud nonsense—and Republicans’ refusal to denounce it—is not that it’s going to *succeed* this time; it’s that it’s going to normalize all kinds of anti-democratic behavior that will make it more likely to work in the future, especially in a close election,” he added.

Professor Jonathan H. Adler of Case Western Reserve University School of Law called Mastriano’s tweets “factually and morally wrong.”

Loyola University Chicago School of Law professor Sam Brunson similarly condemned Mastriano.

“Counterpoint: there is no evidence, mounting or otherwise, that there was material fraud in the election. There is, however, mounting evidence that some Republicans* want to ignore the vote and steal the election,” he wrote, adding, “Like you.”

Aaron Keller contributed to this report.

Editor’s note:  This report has been updated since its initial publication to include Trump’s tweets in affirmation of Mastriano’s plans.

[image via screengrab/YouTube]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.