It’s this last point that presents a way to gauge Trump’s chances of executing some version of his corrupt designs.
The short version is this. At Amy Coney Barrett’s confirmation hearing, Democrats can press a line of questioning that might illuminate whether Trump can pull off one of his most-discussed means for rigging the election: getting a GOP state legislature to appoint substitute pro-Trump electors to the electoral college, regardless of the popular vote in that state.
Trump is telegraphing his scheme
At the debate, Trump said he “can’t go along” with a result tallied up from millions of mail-in ballots, which will mean “fraud like you’ve never seen.” He urged supporters to “watch” the voting “very carefully,” i.e., to engage in voter intimidation.
And asked what he expects of the high court and Barrett, Trump said: “I’m counting on them to look at the ballots.”
Trump did also say he might not “need” the court to settle “the election itself.” But that only inadvertently confirms that he believes the court is at his beck and call on this matter.
As far-fetched as it seems that a state legislature might appoint pro-Trump electors, it’s important to note that some Republicans are already claiming that the fictional mass fraud in large-scale mail balloting could serve as the justification for doing just this.
As one Trump legal adviser told the Atlantic, they might say: “We don’t think the results of our own state are accurate, so here’s our slate of electors that we think properly reflect the results of our state.”
And so, when Trump casts doubt on the legitimacy of a prolonged count after Election Day — as he did at the debate — he’s opening the possibility of using exactly this justification for precisely this endgame.
As Edward Foley outlined in a prescient 2019 article, if Trump were ahead in the Election Day count, he’d likely put this scheme in motion while claiming “machine politicians in Philadelphia” are trying to steal the election with fabricated mail votes.
Could this work?
To be clear, it shouldn’t.
The Constitution does assign to each state the authority to “appoint” its electors, in a “manner” that the legislature “may direct.”
But in a terrific piece, three legal scholars — Grace Brosofsky, Michael Dorf and Laurence Tribe — explain that precedent shows this means the legislature must “direct” how the state appoints its electors by making laws that create and define the process for doing so.
Virtually all states have made laws that provide for electors to be appointed in accordance with the popular vote outcome in them. (Maine and Nebraska do this by congressional district.) Thus, those scholars argue, legislatures can’t appoint pro-Trump electors without making a new law providing for appointment of electors based on legislators’ own will, not that of the voters.
Such a new law would require the governor’s signature. And in three states where this appears most likely to be tried — Pennsylvania, Michigan and Wisconsin — Democratic governors would veto any such effort by GOP-controlled legislatures.
The Supreme Court has upheld the principle that a governor can veto such an effort, those scholars note. In the 1932 case Smiley v. Holm, the court ruled that the Minnesota state legislature could not change election rules unilaterally in the face of such a veto.
This ruling confirmed that for the court, “state legislatures cannot alter” laws governing the selection of electors “except through their ordinary state lawmaking procedures,” which would require a gubernatorial signature and be subject to veto, the scholars argue.
So friendly legislatures can’t do this on Trump’s whim without a new law, no matter how loudly they scream that ongoing counting of mail ballots is fraudulent.
Such a case might again find its way to the Supreme Court. But how would it rule?
The question for Barrett
Democratic senators can press Trump’s nominee on this question — by asking whether she believes Smiley is settled law, and on whether she believes the Constitution does or does not allow state legislatures to appoint electors outside the lawmaking process.
Dorf, a professor at Cornell Law School, told me Barrett would likely evade this question, by merely promising to “respect precedent” while declining comment on a question that might soon be before the court.
Still, this might be worth trying. Given that Trump has explicitly said he expects the court — and Barrett — to help him pull off something like this, we’re in an extraordinary situation. By confirming that Smiley is settled law, Barrett could strongly suggest that such an effort will fail, sparing the country from it.
“She could certainly throw cold water on it,” Dorf told me. “She could make it clear that she’s not likely to be receptive to an argument” that legislators can appoint electors without a new law.
As for other justices — such as John G. Roberts Jr. and Neil M. Gorsuch — they might also look askance at such an effort. In Bush v. Gore, the court described the process for appointing electors as a “legislative” scheme. Dorf says they might see this as invalidating any effort to appoint them outside the lawmaking process.
To be clear, Trump’s disastrous debate performance makes it more likely Biden will win the “blue wall” states by a comfortable enough margin that Trump won’t even try such a scheme.
But Trump also made it clear at the debate that he’s unhinged enough to try anything — and is perfectly happy to rile up millions of supporters behind an effort to overturn a legitimate loss. So if there’s any way to take this off the table now, we should try it.