The Founding Fathers Vested State Legislatures With Authority to Decide Presidential Electors for Good Reason

The Found­ing Fathers vest­ed exclu­sive­ly with­in the leg­is­la­tures of the respec­tive states the power—and solemn duty—to decide the man­ner in which its pres­i­den­tial elec­tors are cho­sen (U.S. Con­st. Arti­cle II, Sect. 1, Cl 2.).

In con­trast, Arti­cle III vests in the judi­cial branch—the fed­er­al courts—the pow­er to decide actu­al “cas­es and con­tro­ver­sies” between lit­i­gants who come before the courts. The “cas­es and con­tro­ver­sies” require­ment to invo­ca­tion of a court’s juris­dic­tion is uni­ver­sal in Anglo-Sax­on jurispru­dence, and applies to all state courts as well.

This fun­da­men­tal dis­tinc­tion is cru­cial to under­stand­ing the very dif­fer­ent roles to be played by the swing state leg­is­la­tures, on the one hand, and the state and fed­er­al courts, on the oth­er, in the elec­toral fraud charges now grip­ping the nation.

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