Weighing risks to the 2024 Electoral College

Rick and Ned each offer some worries about future presidential elections and mechanics that state legislatures might employ to undermine the election. I wanted to offer brief thoughts about why I’m somewhat less fearful on these two particular concerns.

To Rick’s point about the “independent state legislature doctrine” and the notion that state legislatures would seize the power to appoint their own slate of electors, I think the second step of that two-step process is far less obvious, legally tenuous, and politically infeasible–and in some ways it’s the more dramatic, as there are other bases in the first step, like using state law without reference to the independent state law doctrine, that all point toward the second step.

Congress fixes the date of the choosing of electors, every state holds a popular election, and every state has a mechanism for resolving disputes through the canvass, recount, certification, and judicial process. Almost no state has a statutory mechanism to recapture the appoint of electors after Election Day. States would need to fall back on the “failed to make a choice” clause in the Electoral Count Act–but it becomes hard to say the state “failed” when it made a choice, but the legislature simply disapproves of it. The legal process (Republican Party of Pennsylvania v. Boockvar is one way) helps ascertain a winner, and there hasn’t been a “failure.” The most ardent proponents in 2020 tried to fall back on McPherson v. Blacker with the line from that opinion, “there is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated.” But that language, always cited out of context, comes from the Court quoting a Senate report on the manner of appointment (by district or otherwise), not the timing (even as it uses the language of time).

Now, practically, a legislature can ignore these constraints and do whatever it wants, I suppose, and hope to let Congress sort it out. But the practical problem is this: not a single chamber of a single legislature did so last time. As far as I can tell, no state is trying to implement legislation to allow it to recapture the selection of presidential electors. (UPDATE: I was helpfully pointed to Arizona, which did consider such a proposal this year, but it was not enacted. I also see a related bill in Oklahoma, but one that flatly violates Congress’s rule about the date of choosing electors. Sigh. So they are kicking around….) One can, I suppose, worry that next time around things will look different–state legislatures are prepared to do so in 2024. But the appetite for fringe activity in state legislatures this year–including legislative investigations styled as “audits”–has not led to anyone even broaching this topic by passing some statute to ensure they hold that power in a future election. (I suppose some states think they don’t need it and the Constitution guarantees them that power regardless of timing, but, again, a much more marginal and certainly more debatable proposition.)

To Ned’s point about “gerrymandering” the Electoral College by awarding electors by district, one question is whether a district method is an acceptable method (e.g., Nebraska and Maine) absent a gerrymander. I think so, as the robust discussion around the 12th Amendment speaks in favor of a districting system, and I think there are good reasons for it as more “representative” of the constituents of a state. (But I think there are merits to winner-take-all, too, as well as a proportional system if done correctly.) If it’s acceptable, the real problem is partisan gerrymandering. The risk of partisan gerrymandering in Pennsylvania (divided government with gubernatorial veto) and Michigan (independent commission) is particularly low this cycle.

But I also think the likelihood of enacting this change is low. In many “swing states,” a legislature is likely to look at the map and say, “we can win the whole state next time, why risk splitting our votes if our candidate does win the statewide vote.” This is a unique equilibrium. The places where a political party has the highest incentive to split electoral votes occurs in the places where one political party is in such a minority that is unable to do so (e.g., California, Texas, etc.), and the majority party is not interested in diluting its electoral clout. The places where a political party has the lowest incentive to split electoral votes occurs in the places where it most likely could do so, but as a “swing state” might win all the electoral votes next time and is pragmatically prevented from doing so.

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