Electoral College

State Legislatures Should Stay Out of the Presidential Contest

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One of the most disconcerting developments of the 2000 presidential contest in Florida was the prospect that the Republican state legislature might attempt to settle the dispute by selecting its own slate of presidential electors. Some supporters of President Donald Trump have suggested that a similar call is in the playbook this time. That would be a huge mistake, and elected leaders in Republican states should make clear that they would not support such a plan.

Radio host Mark Levin has urged state legislatures to "do your constitutional duty" and appoint a slate of Republican presidential electors. Donald Trump Jr. has endorsed that plan, as have some Republican politicians. The Republican leader of the Pennsylvania senate has dismissed the possibility. As Joe Biden's apparent Electoral College lead grows, such state interventions become more futile and thus hopefully less likely.

We have all become more familiar with the unusual features of the Electoral College. The divergence between the electoral vote formula in the Constitution and the national popular vote has received the lion's share of the attention recently. As partisans have maneuvered over the rules that would govern voting during a pandemic, the highly decentralized nature of our presidential election system has been made obvious. But some aspects of the Electoral College remain obscure, and the role of the state legislatures in the process is among them.

In the years after the American Revolution there was little agreement in the states of the Union about how democratic elections should be conducted and government officials should be chosen. The would-be constitutional framers who met in Philadelphia in the summer of 1787 knew that state politicians, and state electorates, were jealous of their own authority to set the rules of the political game. As a result, the Constitution does not attempt to create a system of federal election rules nor does it entrust the entire power to write such rules to federal officials. The "Times, Places, and Manner" of federal elections are to be set "in each State by the Legislature thereof." State control is the default setting, unless and until Congress takes control through duly enacted statutes.

The system for choosing the presidential electors who will actually cast the official ballots for president in December is even more firmly entrusted to the states. 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 the presidential electors themselves, just as they appointed the U.S. senator before the adoption of the Seventeenth Amendment. 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 the presidential electors, and thus effectively choose the president since the candidates for presidential elector in turn 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. 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.

The history of state legislatures intervening to displace the voters in order to choose presidential electors has not been a good one. Some members of the Federalist Party simply did not trust elections and generally believed that legislatures should make such important decisions. But sometimes partisans were just looking for an angle to secure victory for their side. In 1800, Alexander Hamilton tried to persuade the New York Federalists to scuttle the presidential election so that Thomas Jefferson would not win the state's slate of electors. In 1812, the New Jersey legislature did cancel the presidential election, days before it was to take place, in order to appoint a slate of Federalist presidential electors. The public outcry generated by such episodes nearly spurred Congress to amend the Constitution to cut state legislatures out of the process.

Americans did not like the idea of state legislatures pushing aside voters in the early republic, and they would not like it today. Few things would be more destabilizing to the American political system than for legislatures to try to change the rules of the electoral game after the fact and announce that legally cast ballots will no longer be counted. The Constitution arguably gives state legislatures the power to appoint presidential electors right up until the day the electors meet to cast their ballots, even if legislatures had previously put some other system in place for selecting electors. But few constitutional norms are as strongly established as the one that holds that state legislatures should not take such an extraordinary step except under the most extreme of circumstances, as in situations like that of the newly-admitted Colorado.

For a legislature to attempt to settle an ongoing election dispute by imposing its own partisan solution would not only undermine the legitimacy of the particular presidential candidate the legislature was trying to help but it would be subversive of American faith in democratic elections generally. The political backlash could be expected to be severe.

Partisans can be expected to fight hard for their favored candidates, but at the end of the day the stability of a democracy depends on the willingness of all sides to live by the results of the election. We might not always be happy with the results of the election, or even with the process by which the election was run, but we live with such disappointments and imperfections and come back to campaign another day. State officials should make clear that their legislatures will not be partisan tools for weakening democracy.

NEXT: November 7 as Victims of Communism Day - 2020

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  1. To their strong credit, Pennsylvania’s Republican legislative leaders have announced unqualified rejection of any ‘legislative rescue’ effort.

    1. PA counties are ignoring Alito’s order.

      He had to issue a second one.

      Totally legit election.

      1. I think what you mean is: Republicans brought yet another frivolous lawsuit to “stop the count”; the PA electoral officials had already been setting aside ballots received after Election Day, anticipating this; Alito denied the Republicans’ requested relief to stop counting, but granted their order more or less reinforcing the status quo on the ground.

        This will be a lot easier if you stop lying to yourself. And, when you realize that we haven’t just elected a president who has made attacking and bankrupting your state, city, and party an animating part of his governing policy.

        1. There are USPS workers on record as being ordered to backdate ballots.

          Who elected them to do that?

          1. Remember when you supported counting late absentee ballots with no postmark?? And you supported slaughtering babies in Iraq?? Good times. 😉

            1. Who are you confusing me with?

              How many black babies get slaughtered every year in Democrat Parenthood clinics?

              I mean stastically speaking the most dangerous place in America for a black male is in the womb. Second only to being next to another black male.

              1. Exactly, you were cheering at Fox News during shock and awe and screaming “don’t mess with Texas!!”

                1. I was? How do you know I wasn’t with Code Pink and then vanished as soon as a D started dropping bombs?

          2. Dearest Idiot Sam,

            https://www.factcheck.org/2020/11/claim-of-michigan-postal-fraud-is-moot/

            Of particular note:

            Michigan doesn’t accept ballots after 8pm on the day of the election, regardless of postmark.

            The “USPS worker on record” presents no evidence of being a USPS worker, and is most certainly not ‘on record’ when using a voice scrambler and hiding their identity.

            Kindly fuck off now, thanks.

            1. Fact check org established by leftists confirms leftist lies. Surprise!

              1. Idiot unable to corroborate any aspects of an idiotic conspiracy theory is actually true still believes in conspiracy.

                Surprise!

            2. “Michigan doesn’t accept ballots after 8pm on the day of the election, regardless of postmark.”

              Neither does Pennsylvania, either. Legally speaking. We’re way beyond what’s actually legal at this point.

              1. Brett,

                At some point you need to actually use some critical thinking skills.

                NOTHING he alleges is corroborated by anyone. Not his employment. Not the order given. Not that any ballots were in fact postmarked with an earlier date. Not that any ballots so postmarked were delivered illegally, or accepted illegally.

                For once, don’t be a twit.

          3. There are USPS workers on record as being ordered to backdate ballots.

            Strictly speaking, there are no USPS workers on any sort of record and no orders, and of course the USPS doesn’t date ballots anyway. But other than that, spot on.

            1. USPS doesn’t postmark mail that’s sent through the USPS?

              I wonder how does?

              1. Actually, they frequently don’t bother postmarking mail that’s pre-paid.

              2. You know that envelopes and ballots are different things, right?

          4. Let’s start with the 7 wards in Millwalkee with over 100% voter turnout and the Detroit voter born in 1823 — yes, 197 years old.

            But 320 lawsuits threw out any myth of legitimacy on this election.

            1. Dr. Ed is lying again — or, more likely, is gullibly repeating what a stupid person told him. There were no wards in Milwaukee with over 100% voter turnout. The fake news site — actually fake news – that created this idea didn’t understand (or deliberately lied) that Wisconsin has same day voter registration; it was comparing the number of people who voted to outdated registration data.

              And the old people voting stories are all clerical errors with misinput birthdates. As should be obvious to anyone with more than half a brain, which Dr. Ed doesn’t have. Nobody born in 1823 would be on the voter rolls in the first place.

    2. And so Pennsylvania’s republican “legislative leaders” would do exactly what to regain the confidence of the electorate? Understand there currently is ZERO confidence in federal elections presently, as plain as day for every deplorable, not-very-nice chump to see. That leads to insurrection.
      We’ll take a look at the evidence in the suit(s) that will be filed Monday. But, the PA republican “legislative leaders” may be facing a choice between having their Sec. of State enjoined from certifying their election results while he hems-and-haws trying to explain what cannot be explained honestly, and fixing the problem themselves.

      1. It’s clear you’re a keen student of Pennsylvania politics if you think the Secretary of the Commonwealth is male.

      2. Understand there currently is ZERO confidence in federal elections presently

        It eludes me how “the state legislature invalidating the election in its entirety and just awarding the electors to whichever party has a majority in the legislative chambers” will increase confidence in federal elections.

      3. Open rebellion is a very real possibility here — another is that people simply stop voting in the future as they will lack faith in the system.

        Of the two, I think the latter is a far greater threat to the Republic.

  2. Few things would be more destabilizing to the American political system than for legislatures to try to change the rules of the electoral game after the fact and announce that legally cast ballots will no longer be counted.

    Judges changing the rules while people are voting are just fine. Fuck you.

    1. The Bush legal recount team included three future Supreme Court justices.

      The Trump legal recount team includes Rudy Giuliani, Pam Bondi, Phill Kline, and Corey Lewandowski. (‘Wait,’ you might think, ‘Corey Lewandowski is not licensed to practice law.’ Neither is Phill Kline.)

      I have heard a number of reports that Trump 2020 is being represented not by the traditional, experienced, effective, big-firm Republican election lawyers but instead by small-town lawyers whose election law experience seems to focus on the dogcatcher and school board level.

      My preliminary observation is that the Trump 2020 lawyers are being tossed out of court promptly.

      Only the best, clingers!

      1. ^^^BINGO!! James Baker blew his shofar and the GOP’s best and brightest came out of the woodwork to restore the Bush dynasty so W Bush could slaughter Iraqi babies, ship jobs to China, and turn Mexicans into Americans!! George P Bush in 2024!! I need more Vaseline my nipples are so hard!!!

    2. Where is this guys demands that state courts stay out of elections?

      These people have their heads so far up their asses its hard to believe they were once respected as the Serious Class.

  3. KEITH E. WHITTINGTON is William Nelson Cromwell Professor of Politics at Princeton University. Isn’t that in New Jersey? Isn’t that school part of the Ivy League? Post is dismissed neo-Marxist propaganda.

      1. That looks more like a false flag attempt at impersonating a regular commenter.

        1. Michael. How much is the Cinese Commie Party paying you per comment? Answer the question.

        2. It seemed more like purposeful and transparent satire to me.

      2. It is not an ad hominem remark. It is a cultural remark. If you move to France, you will become French in a short time, even if you hate being French. People imitate, and fit in. They eat the available food, wear the available clothes, and speak the lingo to get anything done. They fit in.

        This man could not be in New Jersey and at Princeton without becoming a neo-Marxist in a short time. His bias would color all his arguments. He is a misleading liar by omission, as is the mainstream press. Your remark is at the fifth grade of critical thinking. Try moving to the high school level.

        1. “This man could not be in New Jersey and at Princeton without becoming a neo-Marxist in a short time.”

          Noted neo-Marxist Ted Cruz was not available for comment. Though that _does_ explain why his father capped Kennedy from the Grassy Knoll.

          1. No idea. What are trying to say?

            1. That you’re a complete idiot.

              Just answering your question

              1. That sounds like an ad hominem remark. It violates the Fallacy of Irrelevance.

                1. You asked what he was saying. I told you. Don’t ask questions you don’t want answered.

                2. Once again, it is impossible to violate a fallacy.

      3. A guy went to China in the Peace Corps, to teach English. He reviewed the accepted meaning of Hamlet in the usual individualist, anxiety ridden, tortured person way. The Chinese students just laughed. They loved their teacher, but he was so naive. They interpreted Hamlet as being in a class struggle against bourgeois values. No Chinese student could understand what this American was saying, let alone ever agree with it. Guy wrote about it in his book.

        https://en.wikipedia.org/wiki/Peter_Hessler#:~:text=River%20Town%3A%20Two%20Years%20on%20the%20Yangtze%20%282001%29,a%20Peace%20Corps%20volunteer%20teaching%20English%20in%20China.

      4. Every argument the left makes is exactly like that. Every study they don’t like is “funded by [bogeyman organization]” regardless of actual source of funds. Every fact or quote or idea must always be vetted to assure the racial or sexual bonafides of the speaker.

        If you take away name-calling and ad hominems, they have very little to say. They certainly almost never talk about helping Americans who need help.

        1. The mainstream media was a full time hate speech outlet. They never argued policy. They spend 24 hours a day attacking Trump, the person. The David Duke website has more ethics than the mainstream media. Duke is a self avowed hater, and not a journalist, with a Code of Ethics requiring the presentation of both sides of a subject.

          1. I agree with several liberal journalists like Greenwald and Taibi that the vilification of Trump has been counterproductive because it involved a rehabilitation of W Bush and the Bush years. So I am actually sympathetic to the policies of Trump but his signature tariffs have not worked and he is grossly incompetent…but he is still much better overall than W Bush.

  4. What Trump should have known (but for some reason didn’t know) is that he doesn’t have loyalists like the Bush dynasty has…so for example Kavanaugh, Roberts, and ACB are loyal to the Bush family while despising Trump for his ridicule of Jeb in 2016. So Bush loyalists are scattered throughout the Republican Party which is why in 2000 James Baker could so easily give orders with the expectation that the orders would be followed.

    1. Really?

      I thought it was The Trilateral Commission, or maybe the Illuminati

      Or the Freemasons?

      George Soros?

      Elders of Zion?

      It’s so hard to keep track.

      1. Keep thinking that when George P Bush is installed as president in a few years.

      2. Clem. Does the Deep State exist? Is there an elite class making a long series of awful mistakes? The American people wanted them fired by Trump.

        1. Great reply.

        2. The American people just fired Donald Trump.

          1. And in order to make Trump appear worse than he was the Democrats rehabilitated the image of W Bush…so get ready for George P Bush to restore the Bush dynasty and Make America Shitty Again!!

          2. The American people re-elected Trump.

          3. The American people just fired Donald Trump.

            To be fair, the American people never hired him in the first place, as he was decisively rejected by them in 2016. It was only 304 Americans who installed him in the presidency that year.

        3. What Trump calls the deep state is really just government officials deciding to be loyal to the Constitution rather than him.

          1. Actually quite a few Bush loyalists stabbed Trump in the back…Trump is such a moron he appointed Tillerson SoS based on Condi Rice’s recommendation…what could go wrong?? 😉

          2. It’s actually long term government employees being loyal to their institution and resisting any attempt to steer it.

  5. From the linked York Daily story – Senate Majority Leader Jake Corman has stated that the legislature will have no part in choosing electors.

    The quoted legal expert says, “…the legislature cannot legally ‘step in’ to appoint a new slate of electors just because an election is ‘contested’ or the results are not clear for some time after election day,”

    So if the election results are (for whatever reason) not certified by the required time, Pennsylvania will not have electors chosen and those 20 electoral votes won’t be counted?

    As to the good law prof’s statement (assuming he was quoted correctly) mentioned the legislature replacing a slate of electors whereas the rest of the article discussed choosing the initial slate. Apples to oranges, seemingly.

    1. Michigan doesn’t accept ballots after 8pm on the day of the election, regardless of postmark.
      That’s why its called voter fraud. Rules and proccesses were ignored, under order of supervisors, to keep accepting late ballots and hand postmark them for Nov.3rd, there are named employees coming forward and giving statements under oath. This is not like a NYT piece of fiction, ie, based on anonymous sources close to the investigation, quoting conversations overheard at the water cooler.

      1. Christ on a pogo stick, you people are [confused]. The allegation is that the USPS has been marking ballots as posted November 3 or earlier. What does it matter? No Michigan election location has accepted any (i.e. less than one) ballot after ballot acceptance closing time on Nov 3. It doesn’t matter if the USPS has stamped 100 million ballots with the Nov 3 date. No ballot received after the deadline is accepted or counted. To the best of my knolwedge, there is no credible claim that any has been accepted.

        1. That is not the allegation. Link your source. Eye witness statements are clear and unambiguous

          1. Fraud, no fraud – how is any of this responsive to my question?

  6. Letting Dems get away with vote fraud is a tradition.

    1. Thank Jesus Trump has been defeated…now the GOP can return to its roots of slaughtering babies in Iraq, shipping jobs to China, and turning Mexicans into Americans!! George P Bush in 2024!!! My nipples are getting hard just thinking about it!!!

      1. Why are you calling an outline of a Biden term as GOP.

        We saw the Dems as the party of war under Obama and the GOP as the party of peace under Trump.

        1. Obama added manufacturing jobs nitwit. Also illegal immigration peaked under W Bush even though 9/11 forced him to superficially secure the border. W Bush started what Trump refers to as the “dumb wars”. Trump ran against W Bush in the Republican primary and easily won and then Trump won the general election in a fluke.

          1. Those manufacturing jobs that Obama said were never coming and would require a magic wand?

            Rahm Emmanuel was just on the news telling the Poors they will need to hashtag Learn2Code. Which of course would get you banned on Twatter.

            1. They never came back you moron!! We hemorrhaged those jobs under W Bush when you were cheering on shock and awe in Iraq!! Obama added a few manufacturing jobs thanks to the fracking boom and then Trump added a few more…but nowhere near where we were in 2000 which wasn’t close to the peak in manufacturing jobs in 1979.

              1. Obama is to credit for the fracking boom?

                lol

                1. No, it happened under Obama and Obama couldn’t stop it because it is regulated at the state level.

    2. Quit being a whiny, conspiratorial bitch and put up evidence of your claims.

      1. Tons of evidence out there for people who are actually against fraud. People who are in favor of fraud will always claim there’s none.

        No point in citing anything to someone like you.

        1. People who insist that there’s fraud will always play fast and loose with whatever “evidence” they think they’ve found.

          Here’s a list of 3000 people in Nevada who may have voted illegally! Well, no, it’s a list of people who have moved out of the state – for example, students, members of the military – who may have every legal right to vote in the state. *mumble mumble*

          Our poll watchers aren’t in the room! Except that they are. I guess they’re not as close as they’d like to be? *mumble mumble*

          And then there oddities about tabulation to chalk up to data entry quirks, camera feeds that campaigns can’t access, and on and on. Just not a lot of there, there.

          Meanwhile the Trump campaign itself has this whole legal strategy that is trying to “stop the count” by hoisting state elections officials into court on a series of unrelated poll rule violations. That flurry of activity is probably contributing to your sense of there being “fraud,” though the claims themselves don’t really venture so far. It’s more a matter of, “There could be fraud, but we don’t properly know, and that’s why we’re suing, so in any event please grant this tenuously-related form of injunctive relief that we have fabricated from whole cloth.”

          It’s been speculated that he “voter fraud” claims is more about getting chumps like you to pony up some pocket change to help the Trump campaign clear out its debt. One last con before he’s out, Trump is probably figuring.

          1. At least two USPS workers have gone on record saying they were ordered to back date ballots.

            Being 40ft away from the counters or having counters behind cardboard or forklifts is not observing the count.

            Telling the observers the pipes burst then sending them home just to continue the count is not observing the count.

            Having a governor send in health inspectors to eject only GOP observers to the cheers of the Democrat counters is not observing the count.

            Stopping the count when your guy is losing just to magically find statistically impossible ballots at 4am is not observing the count.

            Have a 30x lower ballot rejection rate is not observing the count.

            Having provisional ballots increase 12 fold for single county (60,000 people in Clark County were told they had to vote provisional because they allegedly had already voted. Last election that was only 5000.) Is not observing the vote.

            Finding thousands of dead people requesting absentee ballots and voting in MI and PA is not observing the vote. I’ve heard claims that the great Joe Frazier himself voted this year in PA.

            1. The problem is, all of the things you said are fictional. The problem is, you aren’t smart enough to discern actual news — which comes from actual news sources — from things you saw on twitter.

        2. You keep dancing away from the real issue, which is that you have no evidence whatsoever to prove any of your bullshit is actually true.

          You *could* post evidence, if you had any, and then we could debate the merits of that evidence and what it does or does not indicate, but you’re too much of a little bitch to try.

          Are you Donald Trump Jr.? Is this just your pen-name where you spread idiocy and lies without proof of any of your conspiracies, and just hope someone believes you enough to keep spreading it?

          You’re fucking pathetic, dude. Multiple times you’ve been asked to provide evidence, and multiple times your response is “there’s tons” and yet you continue to be unable to provide ANY.

          1. I refer to evidence below. Someone who had some integrity could go and look and stop claiming nO eViDeNsE. I expect you will do the exact opposite.

            1. You’re a fucking tool.

              https://www.factcheck.org/2020/11/claim-of-michigan-postal-fraud-is-moot/

              Your only ‘evidence’ is a voice-scrambled, identity-hidden video of someone who claims to be a postal worker (also without evidence), claiming ballots were supposed to be post-dated in Michigan, with the order to do so supposedly coming on the morning of November 4th.

              That’s your ‘evidence’ of Democrats stealing an election. In a state where postmarks don’t matter, because ballots are only accepted if they are in possession of the county clerks by 8pm on election day, regardless of postmark.

              So you’re not just a fucking tool – you’re a fucking idiot also. That’s what your evidence demonstrates.

              LOL. Are you really this stupid, or are you playing some kind of long game at being a troll?

              1. Thanks for acknowledging the evidence exists.

                1. Thanks for not refuting the fact that your ‘evidence’ lacks any semblance of credibility, or that you’re dumb enough to believe it anyway.

                  Of course, it doesn’t prove that Dems get away with election fraud. It doesn’t even prove that Democrats had anything to do with the allegations. It literally only proves that you’re a dipshit.

                  Congratulations on the brilliant self-burn!

              2. This is a postal employee, coming forward exposing evidence of fraud.

                If you have evidence to contradict in person allegations, produce that evidence.

                1. No, it’s not a postal employee. No, he hasn’t exposed evidence of anything.

                  1. Oh great. You almost got there. You “know” it is not an usps employee, that means you know who that person is. Please share a link so I can educated myself.
                    (That should shut up the troll)

          2. I have no evidence that anyone was breaking the speed limit on my street today. And yet, so.

      2. The real fraud is happening right in front of us with the no id elections, universal ballot mailouts, ballot harvesting, late ballots etc concentrated in Dem districts. A technician voting for a senior here and an activist turning in a late ballot there adds up across millions into turning states. No coordination or gotcha moment of a man literally dumping a bag labeled fraudulent votes in a machine needed. These cases when caught and they are caught as you can google yourself are simply dismissed as isolated uncoordinated incidents which they are (in the actual fraud) but they still have their intended effect.

        The Dems themselves know deep down they benefit from voter fraud. Or you can believe they fight tooth and nail against any voter security for no reason.

        1. You can go on Project Veritas web site for eyewitness accounts of fraud. Eyewitness accounts are, and have always been, “evidence”.

          No point in mentioning it to people unless they care at least a little bit about integrity — and let’s face it, this is America, integrity has been out of fashion for decades. Hence “no evidence”.

          1. The dude bought ballots and bragged about it his snapchat and they still pretend Veritas manipulated it.

            1. no evidence though. Because cults will just redefine and make up whatever is necessary so cult doctrine is always right.

          2. Project Veritas is well-known for manipulating and editing its “evidence” in order to drive a particular narrative.

            WHAT IS THIS PERSON THROWING AWAY???? Really, you’ve got to do a bit better than this.

            1. So you agree that it’s evidence then. Glad that was so easily settled.

            2. I heard a story from the bastion of neutrality HUFFPOO that Project Veritas did something bad so I will automatically dismiss everything that doesn’t fit my narrative or always defer to the ruling of the MSM like a zombie rather than take in stories and patterns one by one and evaluate them critically.

            3. He replayed an original video from some dudes snapchat where he says he buys ballots, has him buying a ballot, and has his car full of ballots.

              He has someone on video admitting what they are doing is illegal in Houston.

              nO EviDeNCe

            4. No, they are well known for being accused by leftwing media of “manipulating” things to drive a narrative, while at the same time being far less guilty of that charge than the mainstream media itself.

            5. Project veritas always puts up the entire uncut version of their work. The edit versions are out there, but the entire video is alway available, and none of the work has been accused of false editing.

    3. Funny how Dems always seem to come up at the 11th hour and win. No riots from the right of course. I hope my fellow poker players can be as understanding as the American people apparently are the 50th time I pull a straight flush and win the pot in the very last hand of the game.

      1. No riots from the right? Well, I’m not sure what you’d call the NYPD’s nightly beat-downs of protesters in NYC, but it sure looks a lot like some Trumpers letting off some steam.

        1. Wow…thats…quite a stretch there.

      2. So is the theory that since the late ballots in Arizona are trending towards Trump that those are fraudulent pro-Trump votes? What you’re observing is that because Trump decided to politicize method of voting, that you see wild variance between types of ballots and they get counted in different orders so you get different patterns depending on the order states count their votes.

        To the extent that you think that some window for fraud was created, it’s 100% on the Republican legislatures that refuse to allow mail-in ballot counting before election day. Florida did away with that nonsense after 2000 and basically everything was counted on election night so we didn’t have to worry about what ballots were being counted in what order.

  7. Fortunately, the Supreme Court has already ruled on the question (at least twice) of what the term “legislature” means in the context of Art. 1, Sec. 4.

  8. Assuming the State Legislatures would interfere on Trump’s behalf (which they won’t its just dumb clickbait) how would this be any different from ignoring your citizens votes for the National Popular Vote Compact schemes?

    1. The difference is that the the National Popular Vote Compact the rules are set before the election, not after.

      1. So if I rob your house you’d feel better if I just committed to it regardless rather than wait to see if I needed money for a new car.

    2. Because under the compact, the guy who actually got the most votes wins.

      1. I’m not a big fan of mob rule. ymmv

        1. I’m not a big fan of insulting the voters by comparing them to a mob. Or for that matter wolves, should you prefer that other stupid analogy.

          1. Our constitution is intentionally structured to lock “democracy”. ie majority rule, ie mob rule, out of governing decisions. Dress it up or dress it down depending on the emotional response you are after, but the founders only found failure in democracies.
            I use “mob rule” because we see what happens when the mob makes any decision. Anarchy. Ignoring history goes nowhere in promoting your theory.

            1. If you honestly can’t tell the difference between majority rule and mob rule I can’t help you. Calling the voters a mob is nothing more than inflammatory rhetoric, and deserves to be roundly rejected by the voters it insults.

              Is there any actual evidence that the minority makes better political choices than the majority? The right to self governance is a pretty significant right, and if you’re going to deny it to the majority of voters I think at bare minimum you need to show that the minority has wisdom the majority lacks.

          2. Oh, and your “voters” are voting for representation, to carry out their desires, Not directly to write laws. Because that would be mob rule. That our voters lack simple civics concept is a direct result of education “experts” telling parents they dont know anything about how, or what to educate.

  9. With a due respect, author please think about and expand upon “results of an election.”
    Your results?
    Voters’ results?
    Election officials results?
    Results determined by a few precincts in a few precincts in democratic cities with a long history of corruption?

    I am very surprised that this piece was published by this website. It lacks any thought, analysis, recognition of what occurred, it reads like an advertorial.

    1. It’s hard to believe that this needs to be said, but results are not in fact determined by a few precincts in a few precincts in democratic cities. The votes from those precincts are added to the votes from all other precincts, including deep red precincts in the country and the exurbs, and they, together, determine the results for the state.

  10. Oh I see, the author is not a lawyer but a social science prof.

    1. Are you a lawyer, Ruqt?

      1. Rev., Happy to answer your questions, my fee is $900 per hour, three hour minimum, paid in advance. Please confirm your continued interest.

        Best regards,

        1. I’m interested.

          I’ll pay you appropriately based on your actual value. So far, you owe me money.

          Please confirm your internet accolades and fake degrees.

        2. I don’t blame you for trying. How many days would you be able to score the handful of street pills you need to try to make it though another desolate, deplorable day with $2700?

          But I can’t see you as a lawyer. Or a college graduate. So please keep ladling your legal insights for us, scant thimbleful by scant thimbleful.

  11. How downscale has the Republican Party become?

    When the Republican presidential nominee announces ‘big press conference in Philadelphia at Four Seasons,’ the Four Seasons Hotel Philadelphia at Comcast Center immediately clarifies by tweeting:

    “To clarify, President Trump’s press conference will NOT be held at Four Seasons Hotel Philadelphia. It will be held at Four Seasons Total Landscaping— no relation with the hotel.”

    Carry on, clingers.

    1. Fake reverend, fake lawyer, fake poll watcher, with multiple sock accounts here.

      1. Disaffected bigot, superstitious loser, culture war casualty, and nearly perfect embodiment of a white, male, movement conservative blog’s carefully cultivated class of followers.

        Obsolete, poorly educated, anti-social Volokh Conspiracy fans are among my favorite culture war casualties.

  12. President-elect Biden will address the nation at 8 p.m. (eastern).

    President-eject Trump will tweet impotently until he is removed from the White House on January 20, 2021.

    #PresidentEject

  13. It’s nice that Republican state legislators aren’t actually entertaining these shenanigans. These shenanigans are only possible, however, because we have an electoral college.

  14. Wouldn’t 3 USC 1 prevent this from happening anyway? (Since the date on which the presidential electors are to be appointed has already passed.)

    1. No:

      Failure to make choice on prescribed day

      Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.

      3 U.S.C. §  2.

      1. Why do you think that applies? Elections were held in all 50 states, and a choice was made in the manner prescribed by law in all 50 states. The fact that they’re still counting doesn’t change that.

        1. …since every state allows for counting of ballots after election day, and all of the ballots are never actually counted on election day. Arguing that this constitutes a “Failure to make a choice” means that no state has ever managed to successfully make a choice under existing law.

          Some states, like Alaska, don’t even allow the counting of big chunks of ballots until next week (which is why it’s stuck at 56% of the vote reported). That doesn’t make the Alaska vote invalid, it just means you have to wait a while to get the results back. Similarly, states allow overseas military ballots to be received after election day. Until this year, basically everyone thought this was good, but now it’s being used as a pretext to attack the credibility of the election.

        2. §1 requires electors to be appointed on election day which is set by Congress (“The Congress may determine the Time of chusing the Electors”).

          But §2 exempts states from that deadline if they “held an election for the purpose of choosing electors”. They only need to appoint electors in time for them to cast their votes on Dec. 14.

          A state might argue that the exemption is in effect as long as it held an election intended to select electors, even if it subsequently chooses to ignore the vote counts and appoint the electors directly.

  15. Correct me if I’m wrong – the post should have gone into this – but suppose there are two rival sets of electors (one Dem, one Rep) in a state, doesn’t the governor decide which is the *real* set of electors? In Pennsylvania, wouldn’t this mean Democratic Governor Wolf, if there should be a dispute like this? And Wolf’s decision – again, please note any point I may have missed, using profanity if you like – could only be overruled by *both* houses of Congress – if only one house overrules him, that’s not enough.

    At least one (perhaps two) houses of Congress are Dem. So a Dem gov plus at least one Dem chamber in Congress = the Dem electors are officially certified as against a hypothetical rival slate of Rep electors.

    1. And I observe that Michigan, with a Republican legislature, has a Democratic governor. So, same deal.

      1. Of course, this assumes the Electoral Count Act which provides for all of this, is constitutional.

    2. Federalism
      If both DC legislators reject the electors who would be President? The constitution does not call for a federal solution.
      The states decide. How the states decide, is defined by the constitution. Federalism demands the States sort this out.

    3. Does the state constitution give the governor the power to overrule the enumerated power of the state House of Representatives

      Looking at the federal constitution, mob rule is always shut down by representative government. The intent of the constitution is to have electors selected by the people. If a vote fails, the stop gap protection is to default to representative government. The house, not the senate, not the executive and surely, not the judicial. The govt closest to the people, without wandering into mob rule.

      1. Not a single person has advocated not counting legal votes. Lying to support your position is a bad tactic of persuasion.

        1. “Lying to support your position is a bad tactic of persuasion.”

          Perhaps you could quote the purported lie.

          1. I think your mistake is you’re venting your frustration at the messenger who brings bad news.

            Again, if there’s two slates of electors in a state, one Rep and one Dem, then which slate gets certified depends on whether there’s a Rep or Dem governor, and the certification of Dem electors by a Dem governor could only be overruled in Congress with at least some Dem support. Possible, but not likely.

            This is an issue of the political affiliation of those making the key distinctions. Or perhaps you think Democratic governors and Congress members would weigh the evidence impartially and recognize vote fraud in which their own party is implicated?

            I, like you, would prefer that Michigan and Pennsylvania had Rep governors, but simply acknowledging that reality is different from *your* preference, isn’t lying.

            1. Cal, what are you asking here?

              There are always at least two slates of electors, one nominated by each party, and state law determines how the selection is made. So if state law left it up to the governor then yes, they would be able to make that decision, but as far as I know no state does that. Are you claiming otherwise?

              1. Correct me if I’m wrong, but look up the statute and decide for yourself – I wouldn’t be surprised if I missed something, so I sincerely meant correct me if I’m wrong –

                https://www.law.cornell.edu/uscode/text/3/chapter-1

                1. The Constitution says the states appoint their electors, but how they will do it is left to state law. Congress gets to set the date for choosing the electors (that is the statute you linked to), and the date when the electors cast their votes, but neither the Constitution nor Congress dictates how they will be chosen.
                  Today the states all hold an election, but the Constitution doesn’t demand that they do and originally more than half the states didn’t. Instead their legislatures appointed the electors, and they could do so again if they first changed state law to enable it.

  16. Few things would be more destabilizing to the American political system than for legislatures to try to change the rules of the electoral game after the fact and announce that legally cast ballots will no longer be counted. The Constitution arguably gives state legislatures the power to appoint presidential electors right up until the day the electors meet to cast their ballots, even if legislatures had previously put some other system in place for selecting electors

    Cheating on elections seems destabilizing to me. Using the resources of the federal govt to spy on a rival political campaign is very destabilizing.

    The fact remains the popular vote was, by constitution forbidden, when electing the president, and there has never been a federal election.

    Federalism, learn to love it.

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