This is the first of two parts. It describes the possible scenario this year of some of the state legislatures deciding for themselves who will be their electors choosing the President, rather than leaving the choice to the states’ voters at the ballot box on November 3. Part II, appearing tomorrow, will spell out possible challenges if that happens.
The average American no doubt would be upset, and might even refuse to believe it, if they were to read that the Constitution does not give them a right to vote for President unless their state legislature first agrees to do so. And even less would that citizen be willing to accept that if they once had that right, their state legislature could at any time take it away from them.
But that’s exactly what the Supreme Court said plainly in the majority opinion in Bush v. Gore, ending the constitutional fight over the 2000 presidential election: “The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.”
The Court went on to say, quoting one of its own rulings (in 1892), that “the state legislature’s power to select the manner of appointing electors is plenary; it may, if it so chooses, select the electors itself….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.”
Why bring that up today? Because such a withdrawal of voters’ right is exactly what some of President Trump’s legal and political advisers have been pondering as a way to help him win reelection this year.
This maneuver could be attempted before the voters go to the polls on November 3 of this year, or perhaps even after the voters have already cast their ballots to express their choice.
No matter when the maneuver might be tried, it would certainly cause a political firestorm, and existing law does provide for challenges to it. Would President Trump and his team be willing to try it and set off a strong political reaction? The answer probably depends upon how much they fear he would lose without it. Why not try it, since the polls these days seem to be falling for Trump and rising for Democrat Joe Biden?
Let’s back up a bit, to see what this is all about. Discussion of such a maneuver began and grew intense in recent days, when President Trump indicated repeatedly that he might not accept the results of the November 3 election, and might not voluntarily leave the White House if it appeared that he had lost the election.
He told reporters that there would not need to be a peaceful transfer of the power of the presidency; there would instead be, he said, a “continuation” – that is, a new four-year term for him despite losing.
How could that be? One answer came following Trump’s remarks in an article in Atlantic magazine by a respected Washington journalist, Barton Gellman. It reported that some in the Trump camp have been exploring a scenario in which state legislatures that are controlled by Republicans would take back, for their own use, the method of selecting presidential electors.
Instead of doing what states have been doing for decades, calculating votes their state would have in the Electoral College (the institution that casts the final votes for the presidency) based on the winner of each state’s November 3 voting, the legislature would substitute its own slate of electors explicitly pledged to Trump.
The article did not say whether those discussing the idea had decided whether, if done, it should happen before the voters go to the polls on November 3, or after. If it were to happen before the voters have cast their ballots, it would not then be known whether Trump was going to win or lose on election day. Why risk political outrage if it is not necessary to assure his reelection? On the other hand, if Trump’s polling numbers keep dropping over the next six weeks, why not do it, and try to preempt a potential loss on election day?
An argument can be made that the time to do it would be after election day in the event that Trump had lost in that state. Then, it might be the only way to his reelection.
Let’s assume then that, at one time or the other, the Trump campaign gets Republican-controlled legislatures to go along with the maneuver. If it led to a Trump victory, Joe Biden’s camp no doubt would claim foul if the Democrat had won the balloting in each of those states and yet faced the loss of those states’ electoral votes.
Tomorrow, in Part II: Since it is a constitutional truism that the people are not absolutely guaranteed a right to vote for the presidency, what could the Biden team (or some of his supporters) do to challenge a Republican effort to take that vote away this year?