By the proper power our Constitution gives them
Art. II, Sec. 1, §2 of the Constitution stipulates that "Each State shall appoint, in such Manner as the Legislature thereof may direct" the electors to vote for president. The Constitution gives Congress the authority to set the date of that vote, which, pursuant to 3 U.S.C. §7, is the Monday after the second Wednesday in December of presidential election years. This year it is Dec. 14.
Notice how the Constitution specifically gives the job of choosing electors to the legislature, and unlike with standard legislation, there is no shared jurisdiction or responsibility with the governor, much less some random state or federal judge. Charles Pinckney, one of the signers of the Constitution from South Carolina, reiterated on the Senate floor on Jan. 23, 1800, how careful the framers were to cut Congress out of the process.
"The Electors are to be appointed by each State, and the whole direction as to the manner of their appointment is given to the State Legislatures," said Pinckney during a Senate debate. "Nothing was more clear … that Congress had no right to meddle with it at all; as the whole was entrusted to the State Legislatures, they must make provision for all questions arising on the occasion."
Technically, this means that state legislatures could even appoint electors and completely avoid or cancel out popular election ballots we have today, at least for the president and vice president. This was the practice in some states in the early days of the republic. As Justice Joseph Story wrote in his 1833 "Commentaries on the Constitution," state legislatures choosing the electors themselves "has been firmly established in practice, ever since the adoption of the constitution, and does not now seem to admit of controversy, even if a suitable tribunal existed to adjudicate upon it."
Indeed, in 1892 (McPherson v. Blacker), in upholding Michigan's practice of dividing the state's electors by congressional district (as done today in Maine and Nebraska), the Supreme Court wrote, "The legislature possesses plenary authority to direct the manner of appointment, and might itself exercise the appointing power by joint ballot or concurrence of the two houses, or according to such mode as it designated." In Bush v. Gore, the high court reiterated that any state legislature "may, if it so chooses, select the electors itself."
Obviously, none of us wants to abolish popular elections, but why would the Constitution even grant state legislatures such power? Well, the framers understood that, unlike Congress, these are the bodies that are closest and most accountable to the people, and unlike judges or executives (state or federal), they are numerous in a deliberative body and won't wield unilateral authority without some degree of consensus.
By overriding the legislatures in how to properly conduct the popular elections that choose these presidential electors, the courts and governors have disenfranchised their voters. A Michigan court extended Election Day for two weeks. A Pennsylvania court, along with the Democrat secretary of state, essentially nullified signature verification for mail-in ballots.
Thus, if there is ample evidence of voter fraud that would be sufficient to alter the will of the people through this popular election, it is incumbent upon the state legislatures in those states to reclaim their authority over the Electoral College and rectify the fraud that has upended our election process.
