The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Former Senator Timothy Wirth, writing with Tom Rogers, yesterday published what is perhaps the most plausible account of how President Trump could lose the election and remain President. The essence: Trump makes unfounded claims that China interfered in the election, the Justice Department investigates, the legislatures of four swing states Biden appeared to win decide to refuse to certify the Electoral College slate pending the investigation, the Supreme Court rules that the Electoral College must be held without those states, and Trump wins when the election is thrown to the House of Representatives voting by state.
Enhancing the argument's superficial appeal is that states don't have to use popular elections at all to choose the electors for President. Under Article II, § 1, cl. 2, "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors." As a legal matter, a state almost certainly could decide to cancel its popular election and name specific electors. Whether those electors could be bound to vote for a particular candidate is yet to be decided, but reasonably safe electors presumably could be found, even given the possibility of attempts to bribe or unduly influence electors. There does not, however, appear to be any movement in any state to eliminate popular voting for President. (I place aside the National Popular Vote Interstate Compact, which is based on the principle that the national popular vote rather than state popular votes should control.) The public does not want to abandon popular voting for a state's electoral votes in favor of the decisions of state legislators. I would be surprised if more than a very small portion of voters in a state would support this, even if there is a high probability that the state popular vote will be different from what legislators would decide.
Could a state retroactively cancel a popular vote and substitute the will of legislatures? Maybe, in theory. It isn't clear "as the Legislature therefore may direct" implies that the direction must be in advance of the election. But as in the federal government, state legislatures may "direct" outcomes only by passing legislation, which requires governors' signatures. (Jason Harrow noted this in March in explaining why red state legislatures would be unlikely to use coronavirus as an excuse to cancel elections in advance.) Three of the four states in the Wirth-Rogers scenario have Democratic governors.
But could a state refuse to certify electors after the fact, with the goal of depriving Biden of a majority? Perhaps this seems more likely, in that it might occur as a result of executive or judicial action in a particular state. But with so many Democratic governors in the relevant states, executive action does not seem likely here. Meanwhile, the Pennsylvania Supreme Court is majority-Democratic and the Wisconsin Supreme Court consists of elected Justices who would thus seem unlikely to nullify the actions of voters in their states.
It's not even clear that a state could decide not to certify a slate of electors. "The Electors shall meet in their respective states, and vote by ballot for President and Vice-President," the Twelfth Amendment commands. In Bush v. Gore (2000), the Court emphasized the importance of a definitive resolution so that the Electoral College could meet on schedule. This provides a strong precedent for the Court to resolve a disputed election in some way.
My ultimate disagreement with Wirth and Rogers, however, not a difference in legal interpretation. They are more cynical than I am–even more cynical, I should say, as I am pretty cynical. Their cynicism starts with the assumption that President Trump would do anything he could do to stay in office. Let's assume that they are right about that. Their cynicism becomes too much when they assume that everyone else, particularly state legislators and Supreme Court Justices, will do whatever it takes to achieve their preferred outcome in the election. I disagree. I believe that Supreme Court Justices will not support actions transparently designed to thwart the will of voters, and state legislators will not either. Any such action would meet the strong disapproval, at the least, not only of Biden supporters but also of many Trump supporters. Polarization notwithstanding, Americans still believe in elections.
Some might say that the true lesson of Bush v. Gore is that Supreme Court Justices will do whatever it takes to have their preferred party win presidential elections. Indeed, Maxwell Stearns and I opened an article on Bush v. Gore with a prescient quote from Jeffrey Segal and Harold Spaeth: "If a case on the outcome of a presidential election should reach the Supreme Court, … the Court's decision might well turn on the personal preferences of the justices." I do not think it a coincidence that the Court in Bush v. Gore was split on partisan lines (at least on the question of remedy for the Equal Protection violation found by seven Justices). But Segal and Spaeth qualified their statement by noting that this would happen only "if" a case reached the court and by noting that it "might well turn" on justices' preferences. Even ardent attitudinalists do not believe that the Supreme Court will use just any manufactured excuse to overturn a clear election. After all, the Supreme Court hasn't resolved any other election.
Sure, the 2016 election could be resolved in courts, legislatures, or the Supreme Court if there is genuine doubt about how to count the results in a particular state. If it emerged that a foreign power really did stuff ballot boxes with mail-in votes, there would be a legitimate dilemma about how to proceed. But the claim that state legislatures and the Supreme Court would disingenuously overturn a clear election result with a bogus interference theory (even if the President were to invite such action) is fanciful.