This is the second of two parts discussing the possible scenario this year of some state legislatures deciding to choose presidential electors, instead of leaving that to the voters. The first part, appearing here yesterday, described the scenario and how it might play out. This part describes how it might be challenged, in court or in Congress.
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If it is a simple constitutional truism that the people are not absolutely guaranteed a vote for the presidency, what challenges are available if state legislators decide to take away that vote, and choose on their own the electors they want, committed to President Trump?
The first task for challengers would be to confront what the Constitution explicitly provides, and then determine if there is a way to try to salvage the voters’ choice, at the polls November 3.
Article II and the Twelfth Amendment together provide the method by which Americans elect a president. It is an indirect method, with the people going to the polls not to pick the president directly, but rather to vote for slates of electors pledged to specific candidates. Under long tradition, reinforced by a Supreme Court decision issued July 6 (Chiafalo v. Washington), states have the power to direct their electors on how to vote when they assemble in their state’s unit of the Electoral College.
Under those arrangements, 48 of the 50 states, plus the District of Columbia, for decades have chosen to award their electoral votes based on the candidate who won the popular vote statewide on election day. The other two states (Maine and Nebraska) don’t do it statewide; they divide the state for the purpose.
That long-used system is allowed but not required by the Constitution. Many parts of the Constitution, of course, protect the right to vote in federal elections and, sometimes, in all elections. In fact, about half of all of the amendments added to the Constitution after the Bill of Rights have guaranteed voting rights – as, for example, for women and for voters aged 18 to 20.
But among all those voting privileges, only the vote for president depends upon the state legislatures’ willingness to allow it. The Constitution’s Article II says explicitly that the choice of presidential electors in each state is to be done “in such manner as the legislature thereof may direct.” (That provision was not changed when the Twelfth Amendment was added in 1804, modifying the method of presidential election.)
And those are the explicit words the Supreme Court has interpreted in a sweeping way – that is, a state legislature has a right to resume itself the power to choose the electors, and it may do so “at any time, for it [the power] can neither be taken away nor abdicated.”
If Republican-controlled legislatures opt this year to do the choosing, and select only pledged Trump electors, to try to assure his reelection, what are the options – constitutional or otherwise – to challenge that? Ultimately, of course, Congress would have the authority to attempt a constitutional amendment to make sure the voters’ choice would be followed in every state. That would not affect the situation this year, though.
The Constitution does leave it to Congress to set the date when the states must send their electoral votes to Congress for the national count to be made, and that date does control how much time the state legislatures would have to choose the electors themselves if they intended to do so.
Under the calendar set for this year, the states are supposed to sort out any controversies over how electors are to be named by December 8, five weeks after the election. If the state legislatures were to decide to take on that role themselves, that would be the deadline to do so, but they also apparently could have chosen to do so before election day. December 8 is a deadline, not the day of decision.
Presumably, if legislatures do take the extraordinary step of choosing the electors, that would become known publicly, and protests and lawsuits predictably would begin.
The electors chosen are to meet in their own states to cast their formal votes on December 14 and they must send their vote tallies to Congress no later than December 23.
A formal process for challenging the validity of electoral votes is specified in a federal law, not in the Constitution. The two houses of Congress meet together on January 6 to count the ballots received from the states. If challenges are made, the two houses go separately to their chambers, have a brief discussion and vote – with a simple majority prevailing – for or against the challenge. If both houses do not uphold the challenge, it fails, and the contested votes are accepted in the final count when the joint session reopens.
It is unclear what will happen this year if there are legal challenges going on in the courts while this schedule is played out under existing federal law. In the disputed George W. Bush-Al Gore election 20 years ago, lawsuits were moving through the state and federal courts, ultimately reaching the Supreme Court, even while the Electoral College process was beginning to play out with the election and the vote-counting.
The Supreme Court ended the legal challenges, and in doing so settled the outcome of the election, on December 12, 2020 – the day that had been set that year as the deadline for states to resolve all controversies over electoral votes. It ruled that the recounting of votes in Florida (the only state where the outcome was disputed in that case) had to stop because it could not continue under procedures that would not treat voters equally.
If the Trump team this year were to wait until after the election to get GOP-led legislatures to name their own electors, presumably any lawsuits challenging that maneuver would have to run quickly through the courts if this year’s December 8 initial deadline is to be met.
A lawsuit to contest the pro-Trump maneuver might not move forward until the Electoral College has met on December 14 to cast their ballots. Challengers would have to prove some legal harm, and that might not be fully realized until the legislatures’ electors actually voted (although it could be argued that their mere selection was enough.)
Who would have a right to sue? Clearly Joe Biden, his running mate Kamala Harris, their campaign organization and any voter or group of voters who could prove they had voted for the Democratic ticket in a state where the legislature had then overridden that vote by selecting Trump electors.
If there is no definite outcome of the election by December 23, when the states’ votes are due to reach Congress, the states still in doubt would inform Congress that they don’t have results yet. That might be necessary, perhaps, if challengers’ lawsuits had not been decided by then.
At that point, another scenario begins to unfold. This one is spelled out in the Constitution. If the choice of a new president has not been settled when the Congress gathers to count the electoral votes on January 6, because no candidate has yet achieved a clear total of at least 270, then the dispute is sent to the House of Representatives for what could be a final vote.
With each state having only one vote in that process, it would take a majority of the state delegations to pick a winner. Although the Democrats now have more members in the House than Republicans overall, the Republicans actually have majorities in more state delegations: 26 of the 50. If that has not changed in the November 6 congressional elections, that would indicate a Trump victory.
It is not out of the question, though, that the legal dispute could still be underway when Inauguration Day dawns on January 20. The court involved would have had to suspend temporary the running of the law that sets the electoral calendar. But, if the outcome is still open on January 20, the Constitution would again play a role, ending Trump’s presidential term promptly at noon that day. Then, a federal law provides that the House Speaker – now, Democrat Nancy Pelosi — becomes the temporary President, to hold office until there is an elected President.
Is there a precedent for such a prolonged electoral impasse? There is. In the disputed election of 1876 between Democrat Samuel Tilden and Republican Rutherford Hayes, a special commission created by Congress to settle it finally voted – two days before Inauguration Day – to award enough disputed electoral votes to Hayes to make him President, by a one-vote margin. (Tilden had clearly won a larger popular vote, but that did not matter.) The commission’s vote apparently was prompted in part by a secret deal that included the removal of U.S. troops from the southern states.
