Counting on chaos: How census miscounts could decide 2024



What if Donald Trump narrowly loses the election due to an unnoticed form of election fraud, later confirmed by U.S. Census data? What if Republicans saw this fraud coming but took no action and haven’t even held hearings to address it?

With Ohio and Florida solidly Republican this generation, Democrats have based their electoral strategy on the “blue wall” of Pennsylvania, Michigan, and Wisconsin. Signs show that migration trends and demographic shifts may have bolstered Republican positions in Sun Belt swing states like Arizona, Nevada, Georgia, and North Carolina.

In a closely divided nation, acts of misconduct — and the GOP’s lack of a long-term strategy to counter them — will shape the course of history.

If Democrats retain the blue wall, Trump would still have 268 electoral votes — just one short of a potential win through a congressional vote. This outcome remains a real possibility. However, what if the states that Trump would likely win, based on clear population data, should actually yield more than 270 votes, even without a single Rust Belt swing state?

The Constitution mandates a census every 10 years to determine each state’s congressional representation. Article II, Section 1, Clause 2, then ties the Electoral College to that state’s congressional delegation based on census reapportionment. But if the census inflated blue state numbers and deflated red state numbers in a closely divided country, it could change the balance of power in Congress and potentially determine the next president.

Based on the census report used for reapportionment, which estimated the population as of April 1, 2020, Texas gained two congressional seats, while Colorado, Florida, Montana, North Carolina, and Oregon each gained one. Meanwhile, California, Illinois, Michigan, New York, Ohio, Pennsylvania, and West Virginia each lost a congressional seat, reducing their electoral votes for president. Although this shift benefited Republicans overall, many believed it still didn’t capture the massive migration from blue states to red states, especially in the Sun Belt.

In a bombshell 2022 report that should have sparked a fierce congressional debate, the Census Bureau admitted to overcounting in eight states and undercounting in six by unprecedented error margins. Five of the six undercounted states were red, and six of the eight overcounted states were blue, with the largest errors affecting red states on both sides. Here are the error rates:

  • Undercounted states
    Arkansas (-5.04%), Florida (-3.48%), Illinois (-1.97%), Mississippi (-4.11%), Tennessee (-4.78%), Texas (-1.92%)
  • Overcounted states
    Delaware (+5.45%), Hawaii (+6.79%), Massachusetts (+2.24%), Minnesota (+3.84%), New York (+3.44%), Ohio (+1.49%), Rhode Island (+5.05%), Utah (+2.59%)

In raw population terms, the largest errors disadvantaged red states and favored blue states:

  1. Florida (-761,094)
  2. Texas (-560,319)
  3. Tennessee (-330,628)

What was the result of these errors? As Hans von Spakovsky from the Heritage Foundation noted, “Due to these errors, Florida did not receive two additional congressional seats, Texas lost out on one seat, while Minnesota and Rhode Island each retained a seat they should have lost, and Colorado gained an undeserved new seat.”

It’s hard to predict how an accurate count would have affected congressional district boundaries, making it difficult to assess the partisan control of Congress. However, in the Electoral College, if Trump wins the Sun Belt swing states and Harris carries the Rust Belt swing states, instead of Trump losing 270-268, he would win 271-267. The data shows Trump could win with just the Sun Belt. And House control could hinge on a few districts that may have been distorted by Biden’s erroneous census certification.

Why didn’t Republicans hold hearings to investigate this error? In the previous census, there was an overcount of only 36,000 people nationwide, a negligible 0.01% that didn’t affect any state’s reapportionment. Doesn’t anyone want to understand the cause of such a significant error, especially one so favorable to Democrats?

While options for redress in 2022 were limited, Republicans had two years before the next presidential election to challenge the Biden administration’s decision. The apportionment clause grants Congress the authority to direct the census “in such manner as they shall by law direct.”

With control of Congress in 2023, House Republicans could have held hearings to clarify the correct apportionment and added legislation to budget bills mandating a compromise between the original numbers and the revised count starting in 2024.

Though a legal battle would likely follow, the Supreme Court ruled in Utah v. Evans (2002) that the census clause doesn’t forbid using statistical methods to enhance accuracy beyond a direct count.

This error isn’t the only factor giving Democrats an artificial advantage. Even before the recent surge in illegal immigration, estimates suggested California held an extra five seats in the House due to its population of illegal aliens. When Trump tried to exclude undocumented immigrants from the census count, the courts blocked his efforts. But when Biden’s inaccurate count favored blue states, officials claimed there was no legal recourse.

It’s disheartening and ironic to reflect on our founding and see how the framers believed the census would be one of the least politicized issues. In Federalist No. 36, Alexander Hamilton wrote, “An actual census or enumeration of the people must furnish the rule, a circumstance which effectually shuts the door to partiality or oppression.”

Today, self-evident truths are often distorted, making it easy for the government to manipulate data with bias and unfairness. In a closely divided nation, these acts of misconduct — and the GOP’s lack of a long-term strategy to counter them — will shape the course of history.

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Horowitz: Yes, state legislatures do indeed have the final say over this election



It's not like the framers of our Constitution or the crafters of federal election law never envisioned the challenge of contested elections and prepared a method for resolution. In fact, they did prepare for this scenario, and they clearly intended for the state legislatures to have the most power to resolve any conflict over the validity of election results.

Last week, I wrote an article reminding Republican-controlled legislative bodies in states with widespread concerns of voter fraud that the Constitution vests in them the ultimate authority to appoint presidential electors. I noted that, because the Constitution allows them to completely bypass a popular vote when selecting those electors, they can certainly decide, if the preponderance of evidence indicates the results are tainted, how they wish to choose those who ultimately cast the ballot for the president.

Several state legislators in key states have reached out to me expressing interest in reclaiming their authority rather than allowing the courts (or worse, the media) to have the final say. However, some have expressed concerns about limitations on their power, given delegated authority that has already passed out of their chambers years ago.

In some states, the legislature cannot convene a special session outside the regular session (typically in January) without the consent of the governor. Lawmakers from these states are concerned that they might not be able to convene without the green light from a Democrat governor who clearly has no interest in further investigating election fraud.

Other legislators have raised questions about whether they can reclaim their constitutional power to select the electors after they have already delegated the authority to the political parties based on the winner of the popular election.

The answer to both of these concerns lies in federal law. 3 U.S.C. §2 states clearly: "Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct."

Thus, even if we accept the argument that legislators cannot abolish popular elections and return to the original practice without passing a new statute (which would require the signature of the governor), that is not what they would be doing here. There has already been a popular election. And assuming the results remain contested and unclear, federal law dictates they alone are responsible for resolving it. Given the existing plenary power to select electors, plus the power of Congress to set the time for voting on them (and Congress gave the authority to the legislators to control that process), it's hard to see how any other state law would supersede such power in this case – at least as it relates to the presidential election.

The fact that any state statute would not supersede the legislature's plenary power of selection of the electors seems clear from the language in the landmark Supreme Court case McPherson v. Blacker (1892). In the unanimous opinion, the court cited an 1874 Senate report, which explained the power as follows:

"The appointment of these electors is thus placed absolutely and wholly with the legislatures of the several states. They may be chosen by the legislature, or the legislature may provide that they shall be elected by the people of the state at large, or in districts, as are members of Congress, which was the case formerly in many states; and it is, no doubt, competent for the legislature to authorize the governor, or the supreme court of the state, or any other agent of its will, to appoint these electors. This power is conferred upon the legislatures of the states by the Constitution of the United States, and cannot be taken from them or modified by their state constitutions any more than can their power to elect senators of the United States. Whatever provisions may be made by statute, or by the state constitution, to choose electors by the people, there is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated."

Accordingly, we see that even without the federal law, it's clear that such a degree of plenary power cannot be abdicated by state statutes. Therefore, there is never a scenario when they would need the consent of the governor – either to convene or to pass a new statute.

Nobody is saying to rush into this final result. It's the Biden camp that is rushing to short-circuit a count on a style of balloting that necessarily takes several weeks to verify and that he pushed for. What I am suggesting is that the legislatures must convene hearings and investigations to shadow the litigation in court.

Just reading through some of the allegations asserted in a sworn affidavit from GOP poll challenger and former assistant attorney general for Michigan Zachary Larsen, on the alleged fraud he observed in Detroit, is enough to convene a special session in the state of Michigan. Then we have the supposed glitches in numerous states from faulty software. U.S. District Judge Amy Totenberg in Georgia already agreed last month that the new voting system, which is used in many other states, "presents serious security vulnerability and operational issues" caused by "fundamental deficits and exposure. ... These risks are neither hypothetical nor remote under the current circumstances"

It's the job of the legislatures to investigate all of this information. If they determine that the fraud is sufficient to negate the unofficial results of the election, then they should demand that the governor hold a new election without mail-in ballots. If the governors in those states refuse, then it would be time for the legislatures to exercise their constitutional power. The only people who see no fraud are those who refuse to investigate. Any Republican who is elected to state office in Michigan, Wisconsin, Pennsylvania, and Georgia who refuse to join such an investigation are clearly unworthy of their office.