They would accomplish this undemocratic feat with the electoral college version of the nuclear option. The ordinary practice in a state where Biden won the popular-vote total would be that state officials certify the election results and send a slate of electors pledged to Biden to Congress for its formal approval.
But state legislatures that conclude the popular-vote total has somehow been corrupted could claim the constitutional authority to submit competing slates of pro-Trump electors and ask Congress to accept that result instead. That radical move would set up a potential clash between the House, with its Democratic majority, and the Senate, which is likely to remain in Republican hands. This bicameral breakdown would create electoral chaos and a constitutional crisis.
On Thursday, as Trump’s electoral college prospects dimmed, Donald Trump Jr. retweeted conservative commentator Mark Levin: "REMINDER TO THE REPUBLICAN STATE LEGISLATURES, YOU HAVE THE FINAL SAY OVER THE CHOOSING OF ELECTORS.” Sen. Lindsey O. Graham (R-S.C.) signaled potential support in an appearance on Fox News’s Sean Hannity. “Everything should be on the table,” Graham said.
This is a horrible idea, one that should be morally repugnant to every American. It is a direct repudiation of the well-settled principle that each state’s electoral votes should be based on ballots cast by its citizens.
Yes, the Constitution gives state legislatures the technical power to appoint electors. But no state legislature has exercised this mechanism since the 19th century. The long-standing practice has been that legislatures have ceded that authority to the voters in their state and allowed the president to be chosen by popular vote.
For a state legislature to reclaim this power after voters have already cast their own ballots would be an even more egregious intrusion into the democratic process. Federal law does not permit a state legislature to take this extreme step unless it declares that the popular vote “failed to make a choice.”
There is no such evidence in any state in the current election. It hardly qualifies as a “failure” if the voters made a choice different from the legislature’s preference. If the pretext is that the legislature must step in to declare the state’s popular vote a “failure” because of some unproven and likely nonexistent fraud, this ruse is as shameful as it is preposterous.
Here’s how it would play out. Democrats would not acquiesce in what they would rightly perceive as a GOP theft of the election. In each applicable state, they would have their electors meet and vote for Biden on Dec. 14, claiming their authority based on the state’s administratively certified popular vote. The rival legislatively appointed electors would meet and vote for Trump.
This kind of fight has happened only once before, in the disputed election of 1876, between Rutherford B. Hayes and Samuel Tilden. No one familiar with that history would wish to see it replicated.
Congress convenes in a joint session on Jan. 6 to count the electoral votes, ordinarily a routine formality that proceeds state by state, in alphabetical order. If there is a dispute over electors, each house would make its decision based on majority vote. But it isn’t clear what happens in the case of a standoff between the House and Senate over which electors to recognize. Biden and Trump could mount competing claims to the presidency, and no one knows how that would be resolved.
On Jan. 6, when the roll call arrives at a state with dueling slates of electors, House Democrats would insist on certifying those pledged to Biden. They would point first to the “safe harbor” provision set out in federal law, which provides that a state’s “final determination" of its popular vote is “conclusive” — in other words, that it is entitled to no second-guessing by Congress — if it has been made by Dec. 8.
As a backup position, Democrats would argue that the Electoral Count Act requires accepting whichever submission of electoral votes is signed by the state’s governor in the event that the House and Senate disagree over which slate to accept.
Senate Republicans could seek to validate the Trump electors. One possibility is that Vice President Pence would assert his prerogative, as president of the Senate, to control the counting of electoral votes and determine which slate is valid. This is a dubious argument based on a strained reading of the 12th Amendment, which envisions an essentially ceremonial role for the vice president in the electoral counting.
If that were to occur, Democrats presumably would attempt to shut down the entire process until Republicans acquiesced. The Electoral Count Act explicitly states there is no moving on to the next state in line until any dispute is resolved, so Democrats can derail the process.
Pence might try to continue with the vote, but the House could then refuse to participate in the joint session any further, which would shut down the counting. While the stalemate persisted, House Speaker Nancy Pelosi (D-Calif.) could claim the right to serve as acting president starting on Jan. 20 for as long as Senate Republicans fail to recognize Biden’s status as president-elect based on the popular vote in the relevant states.
No patriotic American should wish this kind of disruptive nightmare on the country. Republican leaders — in particular, Republican senators — must puncture this trial balloon, quickly and decisively, and let the people, not state legislatures, decide who will be their next president.
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