This discussion will appear here in two parts. The second part will appear tomorrow.
Imagine that Americans go to the polls in 2024 and choose a Democrat for President. Now, three years before that voting, a constitutional theory that has existed since the 1890’s is circulating anew, suggesting a way to overturn a Democrat’s victory and put a Republican President in the White House.
That would seem to qualify as a coup, an overthrow of the method that America has used since the late 18th Century to select the President. But it might be carried out without any use of force – entirely unlike the attempted coup on January 6 in the violent attack on the Capitol. And there is a significant chance that today’s conservative-dominated Supreme Court would uphold the scheme as constitutional.
A constitutional fantasy? A good many scholars say, yes, it would be. But there are quite a few conservative thinkers who argue that it is not at all fanciful, but actually achievable. This has made headlines recently, with disclosure of a failed effort within the Justice Department to use the theory to undo President Biden’s 2020 victory. Despite that failure, the theory retains its appeal among many conservative activists.
The theory arises out of an interpretation of the original Constitution from 1787. And for those who believe that the Constitution today means what its draftsmen believed in the beginning (that is, “originalist” interpretation), the scheme can be traced to the Founders’ preference for picking the President not by direct vote of the people, but by the indirect method of the Electoral College.
The theory as expressed today is that America’s founding document would tolerate an override of the peoples’ will at any point in history when the distrust of the presidential election process had reached a sufficient level. The question that is stirred up by the revival now of the theory is this: has America reached that point of untrustworthy elections, or is it about to reach the point?
Very likely, most Americans still believe that their elections are run fairly and with genuine civic integrity. In fact, federal government experts have told the people that the 2020 presidential election was the fairest in history.
So, who believes that was not true? Many who do are among those who sympathize with former President Trump’s unsubstantiated claims that the 2020 election was stolen from him and that America’s elections by the people can no longer be accepted as valid. And some thinkers within this group are, primarily, the ones who now embrace the theory that the time may have come to take the ultimate electoral choice of the presidency away from the people.
The time to understand the theory and what it portends cannot wait; the first steps toward a constitutional coup might occur this fall and early in 2022, when state legislatures draw up new election district maps, in response to the 2020 Census, for elections at the federal, state and local levels. Those maps will control elections for the next ten years, including those in 2022 and 2024. And it will be in the state legislatures, elected by using those new districts, where this revived constitutional theory could get its test between now and 2024. The presidential election, too, will be affected by this process of redistricting, even though the President is elected by voting nationwide.
This first of two articles examines the constitutional and historical sources for the theory. Tomorrow’s article will describe the sequence of steps that would have to unfold for the scheme actually to happen.
The constitutional background:
Articles I and II of the original Constitution provide the methods for conducting elections to federal offices – to the House of Representatives, the Senate and the presidency. (At the time of the founding, the Senate’s members were chosen by state legislatures; that was changed to election by popular voting under the 17th Amendment in 1913.)
The Elections Clause in Article I gives the state legislatures the authority to decide “the times, places and manner of holding” congressional elections, with a backup role for Congress to veto or change those state arrangements. The Electors Clause in Article II gives the state legislatures the power to decide how to “appoint” the electors who will choose the President (in what has come to be known as the Electoral College); this authority is not subject to veto or alteration by Congress, although Congress is authorized to pick the date for choosing electors and the date on which they meet to cast their votes for the presidency.
To the activists now pressing the theory of potential overruling of the people’s choice for President, the differences between those two clauses are seen as critical. They stress what they deem the unchecked power of state legislatures to choose the manner of picking presidential electors, without a veto by Congress.
Interestingly, after the fiasco of the prolonged Tilden-Hayes presidential contest in 1876, Congress in 1887 used its general legislative power to pass a law that creates the procedure for counting the electoral votes that determine the winner of the presidency. (It is that procedure that this year’s January 6 rioting mob at the Capitol tried to stop.)
That suggests that Congress has deemed its power in the presidential election process to decide something more than just setting the dates. To conservatives supporting state legislative authority, however, that action does not take away the “plenary” – that is, exclusive – power of state legislatures to decide how presidential electors are to be chosen.
“Plenary” authority, these activists suggest, is strong enough to allow state legislatures to directly choose the presidential electors, even if they have previously allowed the voters to make that choice (as all states have traditionally done). Since the Constitution itself confers that option on the legislatures, the argument goes, the legislatures do not have to answer to anyone else – to their governor, to their state courts, or even to their state constitution – if they opt to reclaim the right to choose.
The power, it is argued, could even be deployed even if there is no proof of fraud in the voting by the people; the Constitution itself is said to validate this authority. And promoters of the theory claim that history supports their view.
The historical background:
Two decisions of the Supreme Court — one in 1892, the other in 2000 — are usually cited as the sources behind this sweeping claim of authority for state legislatures in choosing presidents.
In the 1892 decision, in the case of McPherson v. Blacker, the Court did say explicitly that the Constitution “leaves it to the legislatures exclusively” to decide on the method of choosing electors, and they may at any time re-claim it for themselves.
In the 2000 decision, in the case of Bush v. Gore, the Court itself brought to an end the heated presidential election contest between Republican George W. Bush and Democrat Al Gore, clearing the way for Bush’s victory in the Electoral College. The state Republican Party in Florida pursued that outcome by relying heavily upon the McPherson precedent, and three members of the Court – Chief Justice William H. Rehnquist and Justices Clarence Thomas and Antonin Scalia – made a point in separate opinions of endorsing the sweep of the McPherson decision on state legislative power.
This year, the McPherson and Bush v. Gore precedents were front and center again in the Supreme Court when it was asked to restore the exclusive power of the Pennsylvania legislature to control how votes were counted in the contest between Donald Trump and Joe Biden. The state Supreme Court had qualified that role, relying on the state’s constitution to do so.
Although the Supreme Court chose to stay out of that controversy, presumably because it arose after the election and also because the controversy as it then stood would not have made a difference in the outcome (Biden won the state without the disputed ballots), three Justices wrote separately to argue that the Court at some point must reaffirm the state legislatures’ “plenary” power in this context. In separate opinions, Justice Thomas and Justices Samuel A. Alito, Jr., and Neil M. Gorsuch, relied upon either or both of those two major precedents. (In an earlier phase of that case before the Court, Justice Brett M. Kavanaugh also seemed sympathetic to the Republican claim at issue there.)
Most recently, both of those Supreme Court precedents figured prominently in an internal debate within the Trump Administration’s Justice Department, when it wrestled with the attempt by one key official there to encourage state legislators to take matters into their own hands in order to find a way for Trump to be declared the winner in the 2020 contest. That attempt was thwarted, but it illustrated that the theory behind it is actively being pressed.
Tomorrow: how a constitutional coup might actually unfold in the choice for President.