I have written this piece for Slate. It begins:
Will the Kentucky Legislature assist Matt Bevin in stealing the governor’s race from Democrat Andy Beshear, who appeared to have won Tuesday’s election by about 5,000 votes? Ordinarily, I would consider the possibility preposterous. We do not live in ordinary times, though, and on Wednesday Kentucky Senate President Robert Stivers raised the prospect that his institution, not the voters, could determine the outcome of the race. If Stivers and Republican Kentucky legislators were to make such a hardball move without good evidence that there were major problems with the vote count, the election would likely end up in federal court, where it is anyone’s guess what would happen. Either way, that we’re even discussing this potentiality one year before Donald Trump—who has repeatedly challenged the vote totals in his 2016 election victory—is set to face reelection is a wrenching sign for our already-damaged democracy….
But Bevin may be doing more than that, and here’s where things can get weird. Kentucky has a set of rules to resolve contested elections, but those rules do not apply to a governor’s race. Instead, the state constitution provides that “Contested elections for Governor and Lieutenant Governor shall be determined by both Houses of the General Assembly, according to such regulations as may be established by law.” According to the Louisville Courier-Journal, the last time the Legislature resolved a governor’s race under this procedure was 1899.
Suppose, as seems most likely, that Bevin cannot come up with evidence of voter fraud or other problems that could plausibly swing a 5,000-vote margin. Would the Republican-dominated Legislature still attempt to hand the governorship back to Bevin? If it did hand Bevin the victory—even without evidence of fraud or major error—could federal courts refuse to review the decision as an action committed by the state legislature in accordance with the state constitution?
But there’s some question about whether the normal rules apply anymore. We have already seen Republican state legislatures in places like Wisconsin and North Carolina go so far as to strip powers from incoming Democratic governors. We’ve reached the point where it is conceivable that the Kentucky Legislature could go even further and make the election loser the winner. Stivers himself expressed support for Bevin, noting that the Libertarian gubernatorial candidate got 2 percent of the vote, more than the difference between Bevin and Beshear. Stivers remarked that “most of those votes … [w]ould have gone to Bevin.”
Stivers point would be an excellent one in arguing for the adoption of ranked choice voting, which would have allocated the Libertarian Party candidate’s votes to the voters’ second choice. But it is emphatically not an argument to overturn the results of a fair election run under rules giving the plurality winner the right to the seat. I am very wary—and often critical—of claims of “stolen” elections, but if Stivers does what he is hinting at it would be a case where such a label would be justified….
It is not certain that federal courts would get involved, perhaps preferring to leave matters in the hands of political branches granted the power to resolve disputes under the state constitution. Still, Beshear would be able to raise arguments under the 14th Amendment’s equal protection and due process clauses. He could also point to the part of Bush v. Gore—the decision ending the 2000 presidential contest—that held “having once granted the right to vote on equal terms,” a state “may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” A system that declares the election loser the winner on arbitrary grounds would certainly value the votes for the loser over those of the winner.
Such an effort would also violate due process, which protects against arbitrary government treatment in elections. It calls to mind an important 1995 11th Circuit case, Roe v. Alabama, which found a due process violation when a state appeared to change the rules for conducting recounts for a state supreme court race after the election was held. If the Kentucky Legislature adopts new contest rules that deprive Beshear of fundamental fairness, that could violate due process under Roe.