No, State Legislatures May Not Reverse the Result of the Election

By Andrew C. McCarthy

Saturday, November 21, 2020

 

Is President Trump plotting to circumvent the popular election in order to stay in power? I spent the better part of two weeks assuring people that this notion was too inconceivable to worry about. Shows what I know. At this point, there are reasons to worry. Undeniably.

 

The idea would be to appeal to Republican-controlled legislatures in states where presumptive president-elect Joe Biden won the popular vote — Pennsylvania, Michigan, Georgia, and Arizona — and persuade them to appoint slates of Republican electors who would cast each state’s Electoral College votes for Trump rather than Biden.

 

As Rich Lowry wrote last week, this daft notion has been making the rounds for a while. We discussed it on The McCarthy Report podcast last week, but I’ve pooh-poohed it because, beyond being farfetched and dangerous, I believe it would be impossible to implement under long-established state laws, making it a nonstarter.

 

Yet we now have to confront it for a few reasons.

 

First, Reuters is reporting, based on three anonymous sources said to be “familiar” with the president’s “strategy for retaining power,” that Trump is “focused increasingly on persuading Republican legislators to intervene on his behalf in battleground states” won by Biden. Second, the president invited top Michigan legislators to meet with him at the White House on Friday afternoon.

 

Third is the Trump campaign’s legal strategy. As I detailed in a column on Friday, after paring down the federal lawsuit they filed in Pennsylvania, the president’s lawyers on Wednesday night filed a last-gasp amended complaint, reinstating and expanding on the vote-fraud allegations they had inexplicably abandoned days earlier. I say “inexplicably” not because the fraud claims were supported by strong evidence — so far, the proof is not compelling. The paring down made no sense because Biden currently leads Trump in the Commonwealth by 83,000 votes; the allegations left after the original complaint was narrowed would not have contested nearly enough ballots to make up that deficit; the fraud allegations — which put up to 1.5 million votes in play — must be included if the suit is to have even a remote chance of success.

 

In the new complaint (which, as we go to press, Judge Matthew Brann has not yet agreed to entertain), the Trump campaign concedes that the will of the voters should decide the outcome of elections in almost all circumstances. That’s why the lawyers are struggling to invalidate ballots — so they can say Trump wins when legitimate votes are counted and illegitimate ones are discounted. But they add a caveat: If it is not possible at this late stage to particularize which tens of thousands of ballots must be voided, then “[a]lternatively,… this Court should enter an order … that the results of the 2020 general election are defective and providing for the Pennsylvania General Assembly to choose Pennsylvania’s electors” (p. 85, emphasis added).

 

There is no doubt that the president’s plan expressly contemplates the possibility of seeking to disenfranchise the voters of Pennsylvania and transfer to the Republican-controlled legislature the task of appointing electors — who, of course, would be expected to cast the Commonwealth’s 20 Electoral College votes for Trump.

 

Moreover, there is a transparent political dimension to the Trump legal strategy, elucidated by Thursday’s startling press conference, in which the Trump lawyers claimed a massive, criminal fraud conspiracy to steal the election. The president’s team is taking its case public in order to pressure Republican state legislators. Many of them may fear that their political futures could be at risk if Trump and his avid supporters turn against them. Perhaps the legislators could be persuaded to refuse to appoint Biden slates of electors, in defiance of the state popular election results that the campaign insists are fraudulent.

 

Needless to say, such a strategy to retain the presidency would be radical and perilous. It could make the riotous demonstrations that followed George Floyd’s death seem tame by comparison. My purpose here, though, is to contend that it is not legally viable.

 

The strategy is based on a superficial reading of the Constitution’s Article II, Section 2, which states in pertinent part:

 

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.

 

Stripped of historical context, the idea sounds plausible: Our founding law leaves it to state legislatures, not the people, to appoint electors.

 

But of course, there is a rich historical context, in which the state legislatures have already directed the manner of appointing electors. They have enacted laws that empower the public to vote in an election which, once certified in the manner also prescribed by law, dictates that the state’s electoral votes are cast for the winner of the state’s popular vote.

 

Could a state legislature claw back from the citizens it represents the right to decide a presidential election? Theoretically, I suppose it could. As the Supreme Court pointed out in Bush v. Gore (2000), the Constitution provides neither an individual right to vote nor a right to have the president elected by popular vote. The power to decide how presidents are elected belongs to state lawmakers.

 

That said, though, once a state legislature has enacted laws giving that power to the people and prescribing how presidential elections are to be administered, the state — including its legislature — must follow that law. If lawmakers want to change the law they have made, they must repeal it. They may not simply ignore it.

 

Mike Shirkey, the Republican senate majority leader in Michigan, has thus stated, through a spokeswoman, “Michigan law does not include a provision for the legislature to directly select electors or to award electors to anyone other than the person who received the most votes.” Shirkey is one of the legislators President Trump met with Friday.

 

If asked, the senator will presumably explain that Michigan has been conducting popular elections for president since it entered the Union in 1837. Under law enacted by the legislature, the state’s secretary of state is given supervisory control over popular elections and the local officials who oversee them. She manages the canvassing process from precinct to county to state level. Once the result is ascertained, the governor — not the state legislature — must certify to the United States secretary of state the names of the electors the state has chosen. They are the electors nominated by the party of the candidate who has won the popular vote. By statute, the electors must vote for the candidate of the party that nominated them.

 

The law is essentially the same in each state.

 

If state legislators wished to end or disregard popular elections, they would have to repeal current law. That would be unfathomable. Regardless of partisan control, there would not be majorities willing to carry out such a scheme. Even if we pretend that it could happen, governors in such states would not sign the legislation — certainly not Democratic governors in Pennsylvania and Michigan, but I don’t believe any governor would sign legislation that disenfranchised the people of his or her state.

 

For the president to float this idea causes great unease in a country that is already deeply divided. There is no upside in it because it is neither legally viable nor politically plausible. He should stop.