President Trump has refused to accept the obvious — that he lost his bid for reelection. His campaign has pursued increasingly desperate gambits in a bid to flip the apparent election results in various swing states, and Republican leaders have generally indulged those efforts by a repeated insistence that the president was entitled to let the “process” play itself out.
But what exactly does that “process” include? For some supporters of the president, that might include Republican state legislatures refusing to seat a slate of Democratic presidential electors chosen by the voters and instead appointing a slate of GOP electors to back Trump. That was always a Hail Mary play: Not only is it a move that shouldn’t even be tried, but it is also unlikely to work.
The possibility of a state legislature end run around the outcome of the November election has been repeatedly hinted at, and Trump seems not to be giving up on the idea. Even before Election Day, the Trump campaign was laying the groundwork “to have electors named by legislators” if enough dust could be kicked up about the accuracy of the counting of ballots from the general election. As the legal battles over ballot counts and recounts have gone on since Nov. 3, Trump’s die-hard supporters haven’t yet abandoned the idea of state legislatures choosing their own slates of presidential electors. Sean Hannity has suggested that legislatures should “invalidate” election results if they believe there was fraudulent voting, and Sen. Lindsey O. Graham (R-S.C.) agreed that “everything should be on the table.” As the Trump campaign has flailed in the courts, it has decided to take a “more targeted approach towards getting the legislators engaged.” To that end, Trump has invited Republican state lawmakers from Michigan to the White House to lay out his case.
The Constitution does give state legislatures a primary role in the process of selecting a president. As the 2016 election reminded everyone, the official ballots for president are not cast by the voters in November but by the presidential electors in December (and then counted by Congress in January). The Constitution directs that each state shall appoint presidential electors “in such manner as the Legislature thereof may direct.” Early in the nation’s history, state legislatures often simply appointed presidential electors themselves, just as they appointed U.S. senators before the adoption of the 17th Amendment in 1913. It did not take long for a more democratic sensibility to take hold: State legislatures established procedures for elections in which the voters could choose electors and thus effectively choose the president, since candidates for elector pledged themselves to vote for a specific candidate for president.
Presidential electors have overwhelmingly been chosen directly by voters for most of American history. By 1796, the first presidential election without George Washington as a candidate, less than half the states were still using direct legislative selection of presidential electors. By 1832, the year Andrew Jackson was reelected, only a single state, South Carolina, still used direct selection of electors by the legislature. The last state legislature to choose electors was Colorado in 1876, and that was only because Colorado was admitted into the Union too late in the presidential election cycle to organize an election.
State legislatures have empowered the voters to choose presidential electors by statute. Michigan state law, for example, specifies that “at the general November election … electors of president and vice president of the United States shall be elected.” The governor of the state is directed by law to certify the “names of the electors chosen as electors” as soon as the canvassing board “ascertained the result of an election as to electors of president and vice-president of the United States.” Having directed this manner for appointing presidential electors, there is no further role for the state legislature to play in the process under existing law.
Congress has no role in the selection of presidential electors, either, but the Constitution does empower Congress to determine the “time of choosing the electors, and the day they shall give their votes.” The 12th Amendment directs that the votes cast by electors shall be counted by the president of the Senate, “in the presence of the Senate and the House of Representatives.” Federal law provides that members of Congress may state objections to the counting of the electoral votes from any state. The votes certified by the state governor are counted unless both chambers, by majority vote, agree to sustain the objection. Federal law specifies that election contests resolved at least six days before the vote of the electors “shall be conclusive, and shall govern in the counting of the electoral votes.” (That deadline is Dec. 8 this year.) Only if the state “has failed to make a choice” through the normal election process may the state legislature direct another manner for choosing the electors.
So for a state legislature to attempt to directly select a slate of presidential electors now, it would need to determine that the state had otherwise failed to make a choice. That could happen if the scheduled election had been canceled due to some natural disaster, or perhaps even if an election contest were still bogged down in recounts and litigation when the date arrived for the presidential electors to assemble and cast their ballots. But neither of those situations apply this year. Theoretically, a state legislature might attempt to cancel the results of a successful election by repealing its earlier statute delegating the selection of electors to the voters and replacing it with a new process. Republicans do control both chambers of the Michigan state legislature, but the Michigan governor is a Democrat and can veto legislation. And Republicans do not have a veto-proof majority.
At any rate, unlike the 2000 presidential election, the 2020 presidential election does not come down to a few dozen votes in a single state. Trump needs to flip not just one state but multiple states. Even if he were to persuade enough Republican-dominated state legislatures to go along with a plan to directly appoint presidential electors, he would still need to persuade governors, several of whom are Democrats, to accept the necessary legislation and certify new slates of presidential electors. Ultimately, those electoral votes will be counted in Congress, and the Democratic majority in the House of Representatives would play an important role in resolving any disputes over the validity of any state’s electoral votes.
Trump’s unprecedented effort to persuade state lawmakers to overturn the results of a presidential election is unlikely to succeed, but it’s still highly corrosive of American constitutional norms. Few norms are as strongly established as the one that holds that legislatures should not take such an extraordinary step except under the most extreme of circumstances, as in a situation such as that of the newly admitted Colorado. Abandoning that norm would open up every presidential election to manipulation by partisan politicians and shake the faith of the citizenry in the integrity of future elections.
When state legislatures have threatened to play such games in the past, they courted the wrath of their constituents and the possibility of a constitutional amendment stripping them of any role in presidential elections. That would be one way to force change in the electoral college.
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