“Trump Can’t Cancel the Election. But States Could Do It for Him.”

Mark Joseph Stern on the potential for state legislatures to choose presidential electors directly:

As the 2016 election reminded the country, the president is chosen by the Electoral College, not the popular vote. There are 538 electors, and a candidate needs 270 of them to win. Currently, every state assigns electors to the candidate who won the popular vote statewide. (Two states add a twist that’s irrelevant here.) But the Constitution does not require states to assign their electors on the basis of the statewide vote. It does not even require a statewide vote. Rather, it explains that each state “shall appoint” its electors “in such manner as the Legislature thereof may direct.” In other words, each state legislature gets to decide how electors are appointed—and, by extension, who gets their votes.

Today, every state legislature has delegated this task to the people. But at first, state legislatures just did it themselves. In the first presidential election, for instance, the legislatures of Connecticut, Delaware, Georgia, New Jersey, and South Carolina appointed electors directly. Eventually, every state moved toward the modern system. But the Supreme Court confirmed in 1892’s McPherson v. Blacker that states were free to revert to the old method, and in 2000’s Bush v. Gore, the court reiterated this point. The majority declared that the state legislature “may, if it so chooses, select the electors itself,” and retains authority to “take back the power to appoint electors” even after switching to a statewide vote.

Put simply, it is perfectly constitutional for a state legislature to scrap statewide elections for president and appoint electors itself. It would also be constitutional for a state legislature to disregard the winner of the statewide vote and assign electors to the loser. And because the Constitution grants legislatures the authority to pick electors this way, Congress cannot stop them.

Due in part to partisan gerrymandering, Republicans control the legislatures of 28 states. Collectively, these states have 294 electoral votes. Trump himself could not cancel the entire presidential election. But he could ask these GOP-dominated legislatures to cancel their statewide presidential elections and assign their electors to him. It’s doubtful that we will face this situation in November. But imagine a worst-case scenario: The election is approaching, and the coronavirus remains rampant in our communities. States are unsure whether they have the personnel and resources to hold an election. Congress has failed to mandate no-excuse absentee balloting, and many states have declined to implement it. Or the postal service is so hard hit that it cannot reliably carry ballots to and from voters’ residences. It’s not difficult to envision Trump’s allies in state legislatures assigning their states’ electoral votes to the president, insisting that these dire circumstances justify pulling a constitutional fire alarm.

Share

Comments are closed.