The problem with the electoral college isn’t just that it produces outcomes contrary to what a majority of voters want. This year, another bug in the electoral college machinery— the preeminent role of state legislatures in choosing electors — could prove even more problematic.
The Supreme Court’s 2000 decision in Bush v. Gore made clear that state legislatures have near-absolute power to control those procedures. Just this year, the court reiterated how “far-reaching” this power is, ruling that states have the authority to prevent so-called faithless electors from ignoring the popular vote.
In other words, although voters might be under the impression that they get to choose the president, in fact, the Constitution does not mandate that role. Ordinary voters have a say in the process only as a matter of legislative grace within each state, not as a consequence of constitutional protection.
In an age of political hardball and rampant political gerrymandering, there are at least three ways in which partisan state legislatures wielding this power could create difficulties that call into question the fairness of the election.
The first is on display in a Pennsylvania case now awaiting action at the Supreme Court. The Republican-controlled Pennsylvania legislature decreed that absentee ballots must arrive at local election offices by 8 p.m. on Election Day in order to be counted.
The Pennsylvania Supreme Court, ruling in a challenge brought by the state Democratic Party, extended the deadline by three days. The court, citing the state’s constitution, said this extra time was necessary to respond to conditions caused by the novel coronavirus. Legislative leaders, as well as the Pennsylvania GOP, turned to the U.S. Supreme Court to argue that the court-ordered extension violates the legislature’s prerogative to set the rules for appointing electors.
It is understandable that the state court would want to give voters additional time given the unreliability of the U.S. Postal Service this year, yet Republicans might have a winning case. Even without a new justice, a majority of the Supreme Court is likely to find that Article II meant what it said when it unambiguously assigned the role and manner of choosing electors to the legislature.
Pennsylvania also illustrates the second, even more alarming, way that Article II might create difficulties: if the legislature steps in to exercise its authority to appoint electors directly. All states now appoint electors based on the ballots cast by their citizens. But this practice was not always the case, and a state legislature unhappy with the outcome of its popular vote could try to reassert its basic appointment power under the Constitution.
Barton Gellman recently explored this risk in the Atlantic, citing a law review article I wrote last year. But where my analysis of the issue was hypothetical, Gellman quotes key GOP figures in Pennsylvania acknowledging on the record that this option is under consideration. Last week, the Pennsylvania legislature began forming an investigatory committee, seen as the first step toward implementing such action.
Any legislative move to appoint electors contrary to the count of the popular vote surely would provoke major litigation, potentially requiring the Supreme Court to clarify just how absolute a legislature’s Article II power really is. Whatever the outcome of such a fight, it would destabilize a country already on edge and underscore the need to amend the Constitution to avoid any such subversion of the electorate’s will.
The third way that Article II might become a factor concerns President Trump’s infection with the coronavirus. Because Trump’s name is already on the ballot with no possibility of its removal at this late date, if at some point he could no longer be a candidate, a state legislature might step in and, declaring a fair election no longer possible, assert its Article II power to appoint electors itself.
This move would be controversial, whether it happened before or after Election Day. Either way, however, it would amount to a repudiation of the state’s commitment to let its own citizens determine who gets the state’s electoral college votes.
Yet it would be relying on a power that state legislatures have had since the Constitution was written. Every state legislature could have canceled the popular-vote component of presidential elections back in March, when Trump declared the coronavirus a national emergency.
No state legislature considered that step, reflecting commitment to the belief that the people should be permitted to pick their president. As the process now moves rapidly closer to Election Day, let’s hope this commitment endures — and that no state legislature tries to seize the choice from its voters.
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