While we clearly recognize the need for legislative action to address the issues presented by the 2020 General Election, some of the actions requested by our residents would require us to disregard the statutes and Constitution we have fought so hard to protect during this pandemic. For instance, despite calls for the legislature to report for session in December, the General Assembly lacks the statutory authority to call itself into session between December 1, 2020 and the first Tuesday in January 2021. Any session days during this period would have to be called by the Governor.
Further, the General Assembly lacks the authority to take action to overturn the popular vote and appoint our own slate of presidential electors. It is true that under Article II, Section 1 of the United States Constitution, the state is to appoint, “in such Manner as the Legislature thereof may direct, a Number of Electors…” Very basically, that means that the General Assembly gets to choose how the electors are selected.
Under the Pennsylvania Election Code, in a provision that dates back to the Act’s adoption in 1937 and which follows a practice the Commonwealth has followed for nearly as long as we’ve been electing Presidents, the General Assembly has directed that the “manner” of appointing electors is by the popular vote. Section 1501 of the Act essentially says that when we vote for President, we are instead voting for a candidate’s slate of electors, and the slate that wins the popular vote becomes our designated electors.
We cannot take steps to appoint electors for this election given these provisions in the Election Code. Doing so would violate our Election Code and Constitution, particularly a provision that prohibits us from changing the rules for election contests of the President after the election. It would also set a precedent that a simple majority of the General Assembly can override the will of the people as evidenced by the popular vote.