Elector Shenanigans

By Kevin D. Williamson

Tuesday, December 15, 2020

 

Republicans stung by President Donald Trump’s humiliating defenestration at the tremulous and senescent hands of purported rutabaga-mafioso Joe Biden have made a lot of noise about the supremacy of state legislatures in the matter of choosing presidential electors.

 

They may soon wish that they hadn’t — that expansive legislative power is precisely the basis upon which Democrats intend to effectively abolish the Electoral College.

 

According to the Constitution, presidential elections work like this: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” Those who believe that the state legislatures can — and should — invalidate some of the state elections and hand a second term to Trump argue that, with the exception of the minor limitations imposed immediately thereafter in the text (“but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector”) the power of state legislatures to appoint electors is effectively unlimited. Texas’s asinine lawsuit challenging the election outcomes in four swing states was based partly on claims that interventions in the elections by non-legislative actors — governors and secretaries of state, and, most notably, the Pennsylvania supreme court — rendered those elections unconstitutional.

 

(The dispute between the Pennsylvania legislature and the state’s supreme court is a genuine constitutional question that should have been settled in the legislature’s favor before the election.)

 

According to this suddenly ubiquitous view, state legislatures can choose electors in any way they might dream up: a coin-toss in Arkansas, choosing the taller candidate in Texas, an alligator-rasslin’ competition in Alabama, etc. Under this understanding, if the state legislature of Georgia should, for example, conclude (with or without persuasive evidence) that the election there had been thrown by fraud, then it could name pro-Trump electors rather than pro-Biden electors, based only on its own judgment and answerable to no one except next year’s voters.

 

Legislators could mandate a statewide vote. Or legislators could consult a psychic, an haruspex, or Taylor Swift for guidance, and proceed according to that advice.

 

This is shocking to the modern American imagination, conditioned as Americans are to excessive respect for democratic majorities, but it is not exactly without precedent. State legislatures relied on a variety of means to choose U.S. senators before the unhappy passing of the 17th Amendment and its mandate of popular elections, and presidential elections in the early days of the republic were nothing at all like the campaigns we now endure, as documented by the fact that George Washington was twice elected unanimously without so much as a CNN town hall. (The original electoral system, under which the runner-up in the Electoral College became vice president, was bonkers, and was rightly done away with after President John Adams and Vice President Thomas Jefferson found themselves in effect on opposite sides of a war.) The United States of America is not and never has been an Athenian democracy or anything like one. Senator Mike Lee (R., Utah) was savaged for his insistence on this in his statements on “rank democracy”: “We’re not a democracy,” he wrote. “Democracy isn’t the objective; liberty, peace, and prosperity are. We want the human condition to flourish. Rank democracy can thwart that.”

 

Democrats howled, but the senator is, or course, exactly right.

 

So was John Adams when he made the same point 200 years ago. The United States has all sorts anti-democratic features in its government, not least of them the Bill of Rights. These counter-majoritarian institutions, like the design of the representative republic as a whole, are explicitly anti-democratic in that they either limit citizens’ ability to work certain kinds of changes in government or, as in the case of the First Amendment or the 13th Amendment, take certain courses of action off the table entirely, irrespective of how large a majority there is demanding them.

 

I am not here offering a disquisition on constitutional interpretation, and I am confident that our usual model of conducting such discussions — each side picks its preferred outcome and then reverse-engineers an airtight constitutional case for it — will proceed with its usual intelligence and prevail with its usual fruitfulness. But there are a few extraconstitutional considerations here worth considering.

 

One is that while it may be the case that state legislatures have broad authority to choose their electors as they will, it is another thing entirely to change the procedure after the fact simply because the election did not go your way. And let’s have the courtesy to admit that that is precisely what happened. (Republicans have in this matter done the double-doofus: making themselves look ridiculous and getting nothing out of it. Usually, they at least get a tax cut.) Here, the specific question of responding to election fraud is relevant, too: We know that election fraud happens fairly often in these United States, because people get convicted on election-fraud charges on a regular basis. But reformers would have a great deal more credibility if they energetically took on fraud either (1) well before the election, or (2) after winning an election. Donald Trump repeatedly claimed that there was widespread fraud in the 2016 presidential election, but neither he nor his administration really lifted a pinky finger to deal with that issue until after he had flubbed his reelection. What’s happened since Election Day is not a reform movement but a desperate — indeed, pathetic — attempt to cling to power, along with a great deal of hysterical pantomime in the broader for-profit Trump movement.

 

Similarly, if Georgia or Pennsylvania wants to change its electoral procedures, let the legislators do so prospectively rather than ex post facto. It’s not like there isn’t room for improvement. Personally, I’d be perfectly satisfied letting state legislatures appoint slates of presidential electors of their own choosing — and go back to appointing senators, too, if we could clear the way constitutionally. But that is not the system we have, and this isn’t Calvinball.

 

If conservatives really do believe that state legislatures have unlimited power to choose presidential electoral however they like, and they still believe that the day after tomorrow, then they don’t really have a principled leg to stand on when it comes to the so-called National Popular Vote (NPV) scheme, in which states agree to award their electors to whichever candidate wins the most votes nationally rather than to the candidate who wins in their state. John Koza, the grand poobah of the National Popular Vote project, insists: “At this point I think changing the system to something better is going to determine whether there’s a dictator in this country.”

 

The parallel is striking: The Trump faction’s demand that state legislatures set aside their states’ votes and award their electors in some other politically informed way is, in the rhetoric of NPV advocates, such a dire and immediate threat to democracy that . . . state legislatures must set aside their states’ votes and award their electors in some other politically informed way.

 

Koza and the NPV advocates are of course ignoring the relevant history: Majorities very often are on the side of dictators. Majorities are kind of dumb that way.

 

John Adams had it right.