On Wednesday, the House will hold hearings to address the risk of electoral subversion. In light of that, I’m re-upping this NYT piece of mine, titled “There’s Still a Loaded Weapon Lying Around in Our Election System.” The piece identifies a critical provision in federal election law that could well become the route through which state legislatures would subvert the presidential election. Congress needs to fix this provision before 2024. An excerpt:
The 2020 election revealed longstanding fractures in the foundation of our system for conducting presidential elections. Before these lead to an earthquake in a subsequent presidential election, we need to shore up that foundation.
The single most dangerous threat the election exposed was the prospect of legislatures directly appointing a state’s electors and overriding the vote of the people in that state. No state legislature has attempted to do this since at least the Civil War. But in the run-up to the 2020 election, this seemed the most likely means that might circumvent the voters and subvert the election. This concern has been proven warranted: After the Trump campaign’s postelection lawsuits failed around the country, its strategy was precisely to get state legislatures in key swing states to appoint the electors themselves….
This provision, known as the “failed election” provision, lies around like a loaded weapon. It is the only place in federal law that identifies circumstances in which, even after a popular vote for president has been taken, a state legislature has the power to step in and appoint electors.
The “failed election” provision traces back to the Presidential Election Day Act, first enacted in 1845. That act, after specifying the date for the presidential election, goes on to provide: “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.”
The act, however, does not define what it means for an election to have “failed.” Nor does past practice give any more determinate meaning to this term; this provision has never been invoked, at least since the closely related federal Electoral Count Act was passed in 1887. But the little-known history of the act reveals that one major purpose for it is now anachronistic, and the act needs to be modernized to reflect the limited purposes for which it might remain relevant today….
Two different, contemporary purposes might still warrant retaining a version of this provision, but if so, the provision needs to be rewritten to address these two specific situations in safer, narrowly defined terms.
First, a natural disaster or similar event might make it temporarily impossible for a state to vote on general Election Day. But in many contexts, states will be able to recover from these disasters quickly enough to hold the election within a week. State laws, enacted in advance, should provide for these foreseeable emergencies. Federal law, in turn, should permit a state to choose its electors after Election Day in this rare circumstance when it is impossible for a state to hold elections on Election Day.
Second, it is possible a state might not be able to certify its vote before the date the Electoral College must vote, which would risk depriving the state of its vote. That could happen if unresolved litigation raises legitimate challenges and the judicial process cannot be finished in time to certify a winner before the electors must vote. Leaving open a small window to account for this rare possibility might be necessary, but the scope of this power must be extremely limited. Indeed, one strategy of the Trump campaign was to exploit this possibility by dragging out court cases long enough for state legislatures to “have” to step in….
The American people, not state legislatures, should choose the president. The “failed election” provision, which lies around as one of the greatest threats to that principle, was created in significant part for reasons that no longer apply. To preserve the integrity of presidential elections, Congress needs to modernize that provision and define clearly the extremely limited, highly unlikely circumstances in which it might ever legitimately come into play.