Yesterday’s article examined the theory that the Constitution might allow state legislatures to assign themselves the power to appoint the electors who will choose the President in 2024. How might that actually happen?
It is only August, three years before America again chooses its President, but a scheme that might take away that choice from the people could already be starting – in an unusual place, the U.S. Census Bureau.
What could be the opening step will happen this week, when the Bureau releases the first round of local communities’ population data based on the 2020 Census. The Bureau, of course, is not directly involved in pursuing the theory that state legislatures may want to take full control, themselves, over choosing the President next time.
But the Census population data to be handed out will be used by state legislatures as they start drawing up new districting maps that will be used for the next ten years for federal, state and local elections.
A feature long a part of the redistricting process in America – manipulating the placement of voting district lines in order to give the party in power a political advantage at election time (it’s called “partisan gerrymandering”) — is almost certainly going to happen again, especially because of a Supreme Court ruling two years ago. In that 5-to-4 decision, the Court declared that there is nothing in the Constitution that forbids or even limits partisan gerrymandering.
So, quite soon, state legislatures across the country will get to work on the redistricting process, creating the boundaries for 435 districts in the House of Representatives (thus affecting, to a notable degree, seats in the Electoral College that chooses the President), as well as seats in state legislatures and in various local governments’ elected agencies.
The Republicans will have a distinct advantage in that process. Across the nation, the GOP now controls 61 of the individual chambers in state legislatures, the Democrats control only 37, and one chamber is shared between them.
There are two potential checks on partisanship in the coming process. First: some states have turned over some or all of the redistricting process to non-partisan commissions. That kind of transfer was upheld by the Supreme Court in 2015, but only by a 5-4 vote, and two of the Justices in the majority then are no longer on the Court and were replaced by conservatives. Second: some gerrymandering may be challenged in lawsuits based upon state constitutions’ protection voting rights, although adherents of the legislative takeover theory contend that state constitutions cannot interfere with the power given the legislatures by the federal Constitution.
Once new state legislatures have been chosen and go into session, in early 2023 and 2024, the scheme to take control of the presidential election process for 2024 could move forward in a series of steps.
It would be crucial, however, for state legislatures that are attracted to that theory to write new laws to implement it before the 2024 election is imminent. That’s because Congress, using its own powers under the Constitution, has set the date for holding the presidential election every four years, so state laws controlling the method probably would have to be in place in advance.
Such a state law might attempt to simply replace popular voting on election day with action that day by the legislature to pick the electors. The Supreme Court has made clear, in a precedent in 1892, that states have the option not to choose electors by a vote of the people, and that their legislatures may reclaim that power at any time.
Because there may be problems in displacing popular voting altogether, under other parts of the Constitution that protect the right to vote in federal elections, state legislatures might opt instead for enacting a mechanism for legislative appointment in the event that there was no decisive winner in the balloting that occurred on election day. Recall that it took several days in 2020 for the winner to be settled in several states.
Moreover, the federal law that controls the date of the presidential election (enacted in 1845) does have a loophole: it specifies that, if a winner has not been determined on election day, the state legislature may choose the method for selecting electors on a later date. (Congress has never spelled out what such a failure would have to be; that provision has never been used by any state legislature, but it still exists.)
The legislative choice approach could be facilitated if, as is now being done in several GOP-controlled state legislatures, new laws were passed to re-assign the power to do the counting of votes cast on election day and to declare winners. The power would be exercised by the state legislature itself, instead of by officials who have traditionally run elections, such as secretaries of state. (While some states with GOP-controlled legislatures have Democratic governors who might use a veto, it is part of the legislative control theory that governors, and even state constitutions, have no authority to interfere with that theory’s implementation because that power comes directly from the federal Constitution.)
Legislative sessions in 2023 and 2024. Just as many Republican-controlled state legislatures have moved energetically since last November’s election to make it harder for young people and minorities to vote (both groups tend to vote Democratic), those legislatures will be under rising pressure to take full control of future presidential elections. America is so deeply divided by partisan tribalism that future elections are almost certainly going to be close.
The increasing discussion of that takeover theory within conservative political, legal and academic circles practically guarantees that such pressure will occur.
One of the reasons that some GOP lawmakers may be attracted to that theory is that it is based primarily upon interpretations of the federal Constitution, and thus would not have to be triggered by actual findings that the election processes had been infected by fraud or otherwise were mishandled. A mere suspicion of election irregularities, or a legislative conclusion that there has been a failure to produce a clear winner in the balloting, might be treated as sufficient.
Possible special state legislative sessions. If the takeover theory does not move rapidly through regular legislative sessions, sympathetic governors could call the lawmakers into special sessions, dedicated to advancing that project. Some adherents of this theory have also argued that legislatures have the authority, under the federal Constitution, to call themselves into special session even if the governor balks. This depends, again, on the argument that state legislative power in this field is unchecked.
Lawsuits would follow such legislation. It is a certainty that any move by any state legislature to enact its own direct controls on the choice of presidential electors will be met with lawsuits. Adherents of that idea are confident that it will pass muster under the Constitution, and they have developed arguments that they believe will defeat any challenges. Most importantly, they sense that a more conservative Supreme Court could be on their side.
Ultimately, the Supreme Court could have the last word on the validity of the theory. How might that go?
It already is apparent, following a series of Supreme Court actions this year, in the wake of the court challenges by former President Trump and his followers to the election of President Biden, that there are at least three and maybe four Justices who are attracted to the idea that state legislatures are given full power by the Constitution itself to manage presidential elections as they see fit.
That group seems to include Justices Samuel A. Alito, Jr., Neil M. Gorsuch and Clarence Thomas. They voted earlier this year to hear a case from Pennsylvania in which the GOP argued that the state constitution could not be used in any way to inhibit how the state legislature decides to conduct presidential elections. Those three Justices fell one vote short of the four needed to grant such review at that time.
There also have been some preliminary signs that Justice Brett M. Kavanaugh could be sympathetic, too. Those four would have the power, among themselves, to grant review of any appeal seeking to press the “plenary” state legislative power theory in the presidential election context.
Then it would take only one more vote among other conservatives on the Court to establish the constitutionality of that theory. Would Chief Justice John G. Roberts, Jr., or Justice Amy Coney Barrett be willing to support that far-reaching result?
If a Court majority were to reaffirm the 1892 precedent, and validate the authority of state legislatures to make their own appointments of electors, that could occur in time to be implemented in November 2024. It probably would be quite unpopular politically for state legislatures to override the peoples’ choice without conclusive proof that the election was flawed or corrupted. But a determined legislature would have been cleared to do just that.
These two articles have set out the potential scenario for such a coup. A follow-up article, to appear here tomorrow, will outline in detail the arguments that the theory cannot be squared with either the Constitution or federal election law.