State Legislatures and Presidential Electors

Trump's hope that state legislatures will replace Democratic presidential electors with Republican electors will be dashed.

New from me at the Washington Post on the law and politics of Donald Trump's bid to persuade Republican state legislators to ignore the results of the November election and directly designate a slate of presidential electors pledged to vote for Trump's reelection. It is a mad scheme that is doomed to failure and Republican leaders should denounce it. This is how you build support for a constitutional amendment to eliminate the Electoral College.

A taste:

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.

Read the whole thing here.

Comments

[TwelveInchPianist]

And, importantly, states can require the electors to respect the state's choice. I'll bet people who were hoping that the case would come out the other way are happy that it didn't.

[jb]

It's not like the electors are chosen at random and then told to vote for one candidate or the other. Presumably most of the time the slates are pretty loyal to the candidate that they're supposed to represent.

[Brett Bellmore]

They're generally chosen by the party as a kind of minor reward for loyal members, so, yes, they're pretty hard to suborn most of the time.

[VinniUSMC]

"This is how you build support for a constitutional amendment to eliminate the Electoral College."

/tinfoil hat

But, what if that is the point? Trump wasn't supposed to win. He was supposed to ensure the win for Hillary.

/hat

[Krayt]

The EC is going nowhere for a long time. Good luck convincing the many small flyover states, much mocked, that the problem with the country is the giant coastal concrete canyons don't have enough power already.

[Brophy]

California has the same power in the Senate as Wyoming even though they have 70 times more people. If socialists in California and New York were smart, they'd secede. Instead, they cling to the hope that electing Democratic Presidents will allow them to rob Republicans.

[Krychek_2]

You mean the giant coastal concrete canyons whose tax dollars keep the red states from completely imploding economically? Those flyover states mostly run on federal money, which largely comes from the coasts.

You are correct that flyover won't give up political power, because why would it. But maybe it should sneer just a little less at those regions of the country that make its sneering possible.

[Brett Bellmore]

"he would still need to persuade governors, several of whom are Democrats, to accept the necessary legislation and certify new slates of presidential electors."

Not by the theory of plenary legislative power the Supreme court asserted in Bush v Gore. Per that theory choosing the method by which electors are chosen is exclusively a legislative power. And thus the relevant legislation, unlike legislation any other topic, would NOT need the approval of any other branch of state government, because the legislature in this one area is exercising a federal role specifically and exclusively granted it.

Mind, I have been persuaded that section 2 of the 14th amendment might apply here, especially since there already has been an election this year.

"But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state."

This wouldn't prevent the state legislatures from appointing their own slate of electors in place of the one the election produced, but the consequences for apportionment would be pretty dire.

[TwelveInchPianist]

Interesting. That's a good point.

[M L]

Yeah, the conclusion that governors would have veto power over the legislature's constitutional authority here seems wrong. Likewise the idea that federal legislation has limited this state legislative power.

[Bob from Ohio]

No right to vote would be denied. They already voted.

There is no right to cast a winning vote.

[Brett Bellmore]

Yes, that's the obvious counter-argument.

[TwelveInchPianist]

If they voted in an election that doesn't determine the choice of electors for the president, it's not covered. If, next week, a 100 member state legislator votes to choose electors for the president, then the basis for that state's representation gets reduced by 100/the population of the state. Makes sense to me.

[TwelveInchPianist]

*legislature

[Dilan Esper]

Bush v. Palm Beach, the case that adopted that theory (in Bush v. Gore, it didn't carry 5 votes), involved a COURT interpreting the state legislature's act through the lens of the state constitution.

That's VERY distinguishable. In Bush v. Palm Beach, the state law WAS signed by the governor. Indeed, nobody claimed you could go back and find laws that were NOT signed by the state governor and give them effect.

It would be a new rule of law if the state legislatures could do this over the veto of a governor. And I doubt the Court would want to go there- remember, even the Bush v. Palm Beach theory was rejected with respect to Arizona initiatives on redistricting.

[Dilan Esper]

Additionally, there's actually an on point Supreme Court case on this, Smiley v. Holm:

"It clearly follows that there is nothing in Article I, § 4, which precludes a state from providing that legislative action in districting the state for congressional elections shall be subject to the veto power of the governor as in other cases of the exercise of the lawmaking power."

So unless Legislature in Section 2 means something different than it means in Section 4, Brett's conclusion is precluded by Supreme Court authority.

[Brett Bellmore]

Article 1 section 4 makes state legislative power subject to the power of Congress:

"The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."

While Article 2, section 1 includes no such qualification:

"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: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector."

So you can see already that Presidential elections are treated differently from Congressional elections.

And Bush v Palm Beach was specific to Presidential elections.

But, again, I'm not arguing that this is a slam dunk, just that it's not frivolous. My main point was actually about the consequences for apportionment.

I don't expect any state to legislatively pick electors unless enough fraud can be proven that the genuine outcome of that state's election is thrown into doubt.

[Dilan Esper]

If you are arguing up against a Supreme Court opinion that says legislature includes the governor's veto, your argument is basically an almost certain loser.

[Lee Moore]

I don't think that's actually what SCOTUS held in Smiley v. Holm.

I think what they actually held was that in prescribing the method of elections as per Article 1 Section 4, the State legislature was necessarily performing a legislative function. And so by infererence a State legislative function, and one which, as a State legislative function must be subject to the State constitution as to the manner of state lawmaking.

(It is obviously possible for a Legislature to perform a non legislative function - eg consenting to nominations, impeachment etc. )

I don't think SCOTUS's reasoning here is rock solid, but the decision is still obviously binding on all courts except SCOTUS itself.

In favor of the holding in Smiley v Holm is :

(1) that it gives a good account of why we should treat Article 1 Section 4 prescribing as lawmaking (references to prescribing and regulating) and
(2) that it allows us to infer a rationale for regarding the lawmaking as State lawmaking rather then any other kind of lawmaking (avoiding federal commandeering of States)

Generally, it's not obvious how the State legislature's prescribing could result in actual State officials leaping to and implementing the prescription unless the prescription takes the form of State law.

[Lee Moore]

A contrary view is that we should not regard the State legislature's prescribing as necessarily an example of state lawmaking (unless the state legislature chooses to do it that way.) It may be an example of federal lawmaking or regulation making.

What ? Shirley, only the federal Congress can do that ? Well, not exactly. Congress sometimes delegates regulation making power to the Executive. We might mutter "non delegation" in such cases but it happens. Quite a lot. But more fundamentally if Congress can delegate some regulation making to the Executive, the Constitution can surely delegate some federal regulation making to State legislatures (without any corresponding non delegation issues.)

But surely this leaves us with actual federal laws / regulations that haven't been passed by Congress, nor by some body to whom the Congress has delegated a regulation making power. But again this isn't novel. What about treaties ? The Senate gets asked for its view, but the Congress not.

So if the Article 1 Section 4 power is a direct grant of regulation making power by the Constitution to State Legislatures, what about federal commandeering of States ?

Well, if it's the federal Constitution doing the commandering, not the President or the federal Congress, so what ?

[Brett Bellmore]

Yes, it's true that in Bush v Palm Beach, the state law in question was signed by the governor. But this wasn't relevant to the argument that the state judiciary couldn't change the law because the legislature alone had authority in this area, not the state as a whole. The Governor is no more the legislature than the state Supreme court is.

"even the Bush v. Palm Beach theory was rejected with respect to Arizona initiatives on redistricting."

Distinguishable right back at you. The reasoning in Bush v Palm Beach was specific to the details of how electors are chosen. Redistricting has nothing to do with that unless you're talking one of the states like Maine that hand out the electors on the basis of performance in specific districts.

Mind, I would not say this reasoning is a guaranteed win, just that it's not frivolous.

[David Nieporent]

Not by the theory of plenary legislative power the Supreme court asserted in Bush v Gore. Per that theory choosing the method by which electors are chosen is exclusively a legislative power. And thus the relevant legislation, unlike legislation any other topic, would NOT need the approval of any other branch of state government, because the legislature in this one area is exercising a federal role specifically and exclusively granted it.

The Supreme Court said no such thing in Bush v. Gore. The Supreme Court has never said any such thing. The Supreme Court expressly rejected that interpretation in the Arizona redistricting case. And no state's election laws were issued by the legislature without gubernatorial approval. It's a fringe position safely restricted to the pages of law reviews and not the real world.

[Sam Gompers]

The Republican legislatures should not ignore the rampant fraud. Its their duty to represent the people and not the crooks.

Cobb County is currently shredding ballots.

[dwshelf]

I'm surprised to see such nuttiness being taken seriously on VC.

[Shamie Ervin iv]

Have you seen the amazing Russ Ramsland YT video? Ramsland is a Harvard grad with a sonorous Texas accent. Now watch this short clip as Russ shows in vivid detail using screenshots from CNN how 560 votes cast for Biven (R) in the KY governor race were flipped from Biven, i. e., stolen, and awarded to his opponent Beshear (D)?

https://www.youtube.com/watch?v=ficae6x1Q5A&feature=youtu.be&t=1994

[David Nieporent]

You mean the guy who doesn't know the difference between Minnesota and Michigan?

[Dan Schiavetta]

Republicans have been so servile to Trump on outrage after outrage that I'm not confident that Republican state legislators will resist him on this one.

[Jason Cavanaugh]

There is nothing the GOP or Trump can do to legally steal the election.

https://youtu.be/I6sVow9l8H4

[Brett Bellmore]

By definition. If they do it legally, it's not "stealing".

[M L]

Exactly.

[Jason Cavanaugh]

Next time watch the video before commenting. It's quite clear that you didn't.

There is nothing the GOP can do to legally steal this election. Period.

If you think sending it to the House will solve your bullshit problems, I've some news for you:

Pelosi is the Speaker, and she can simply refuse to swear in the GOP Representatives. No GOP Representatives = contingent election for Biden.

Your tinfoil idiocy lost. Get over it.

[StellaLink]

Or, the Democrats can simply prevent the required quorum in both the house and senate. Nancy Pelosi becomes president, or acting president. I see no reason to believe that the Democrats would allow the Republicans in the house to steal the presidency , nor the Republicans in the Senate to steal the VP.

[Lee Moore]

Not that this is ever going to happen, but while the Ds (or Rs) could prevent a quorum in the Senate, neither Ds nor Rs could prevent a quorum in the House for the vote on the President.

This is because the House quorum for this purpose is specified in the Constitution as a member from two thirds of the States. Since both Rs and Ds have at least on member in 40+ states, either party can make the quorum on their own.

[StellaLink]

Correct, you are. My reading of the 12th had not been sufficiently careful.

[Jason Cavanaugh]

The video addresses this.

The Speaker of the House is the first person sworn in, and then the Speaker swears in the rest of the House. All Pelosi has to do is refuse to swear in GOP members.

[David Nieporent]

The Speaker of the House is the first person sworn in, and then the Speaker swears in the rest of the House. All Pelosi has to do is refuse to swear in GOP members.

No. See Powell v. McCormack.

[Lee Moore]

As I understand it, the logic is that if GOP members aren't sworn in, they don't get to exercise their votes. And the procedure is :

1. Members vote to elect a Speaker
2. The Speaker gets sworn in
3. So she then gets her vote
4. The Speaker then swears in the members she likes
5. And so they get their votes
6. But she doesn't swear in the members she doesn't like
7. And so the members she doesn't like don't get their votes
8. Nah nah nah nah nah !

But how do we do number 1, before we've done number 3 and number 5 ?

[Jmaie]

Non-snarky question, I really don't know 'cause I've been ignoring as much of the blather as I can. The only discussions of republican-led legislatures appointing a different slate of electors in order to throw the election to Trump (that I've seen) have been by law professors and various lefty partisans. Has anyone from the republican establishment and/or the Trump campaign suggested such a thing? Not thinking right-wing fringe types (i.e. Mark Levin).

[MollyGodiva]

Yes. They have, many times. And not just talked about it, but are actively trying to do it.

[jb]

Trump just had the Michigan legislative leaders over to discuss his very topic.

[arpiniant1]

State legislatures did create a method of choosing electors

An election

To change the method of selection after the election, would seem problematic
Also, one should go back to the enabling legislation that created that election. If it was signed by the governor, one would think it means the governor indeed has veto power.

Or that all the elections have been illegal or such for how many years

Accepting only the election results you like is not a long term recipe for success

[Black Richard]

And we should trust anything from the _Washington Post_ why?