Why limit yourself to the far-fetched when the utterly fantastical is an option?
President Donald Trump is challenging the outcome of the Nov. 3 presidential election in several razor-thin battleground states, pushing for recounts and filing lawsuits that are very unlikely to overturn Joe Biden’s current leads.
Faced with this prospect, some allies of the president are advocating, or beginning to whisper about, Republican state legislatures taking matters into their own hands and sending slates of Trump electors to Congress regardless of the vote count.
This is a poisonous idea that stands out as radical and destructive, even in a year when we’ve been debating court-packing and defunding the police. The best that can be said for it is that it is almost certainly a nonstarter, which doesn’t mean that it won’t get more oxygen.
Donald Trump Jr. has pushed this option and Sen. Lindsey Graham, now bonded to Trump more firmly and completely than he was to the late Sen. John McCain, says “everything should be on the table.” A conservative in the Pennsylvania House, Daryl Metcalfe, has declared, “Our Legislature must be prepared to use all constitutional authority to right the wrong.”
We may be one presidential tweet away from this gambit becoming orthodoxy for much of the Republican Party.
There is no doubt that the state legislatures have enormous power in this area. Article 2 of the Constitution states that “each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”
As the book “After the People Vote” notes, the Constitution doesn’t require a state’s electors to be chosen based on the popular vote, but this has been the norm for almost 200 years. After 1828, only South Carolina’s Legislature directly appointed electors, continuing the practice through 1860.
In the Florida vote controversy in 2000, the Florida Legislature considered appointing electors when it looked as though, amid all the contention and rival court rulings, that the state might miss the deadline for filing electors.
State legislatures acting in the current context would be an extraordinary imposition. This scenario presumably involves the courts, first, rejecting Trump’s legal challenges because they lack the requisite evidence. So the vote counts in the key states would stay the same and there wouldn’t be compelling evidence of massive fraud, and yet the legislatures would act anyway.
The Republicans control the legislatures in all the key states, and they are subject to pressure from Trump and his supporters, but this would be asking them to defy the will of the people as expressed in a vote that would, by this time, have been litigated and perhaps recounted and audited.
One can only guess that the political reaction against this in the states in question would be thermonuclear. This must be one reason why the Republican leader of the state Senate in Pennsylvania, Jake Corman, has so far been steadfast in saying the Legislature is not going down this route.
Any such move would also be subject to litigation likely to go all the way to the Supreme Court. Even if the power of the legislatures is vast, there will be a dispute over whether they can ignore the results of elections that, prior to an unwelcome outcome, were supposed to determine the state’s electors.
On top of this, the legislatures appointing electors would trigger a historic donnybrook in Congress, which considers objections to electoral ballots under the Electoral Count Act of 1887. If Republicans aren’t united—and certainly a handful of senators, maybe more, would refuse sign up for this gambit—the party wouldn’t be able fend off objections to legislature-appointed Trump electors.
A more sensible path is to give the Trump team the time and space to pursue recounts and litigation. Then, if these efforts don’t produce reversals of vote counts or clear evidence of widespread fraud affecting tens of thousands of votes, to urge the president to fold his tent.
That the Electoral College strategy is even being talked about is a sign of weakness, not strength, and desperation is not a good reason to precipitate a constitutional crisis.
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