As the counting of votes continues, an anti-democratic suggestion has taken hold among supporters of President Trump that Republican state legislatures could prevent a Biden presidency by directly appointing Trump-supporting electors to the Electoral College, rather than by sending a delegation of electors in line with their states’ popular votes. “GET READY TO DO YOUR CONSTITUTIONAL DUTY,”
tweeted conservative radio host Mark Levin on Nov. 5. Soon after, Donald Trump, Jr.,
retweeted Levin. Later that night, Sen. Lindsey Graham
joined the bandwagon. The idea is not entirely new: In September, Barton Gellman in The Atlantic
reported that some state legislators were already considering this gambit—though Pennsylvania Republicans soon
rejected the notion.
There are a host of clear legal problems with this suggestion, including that electors are required to be selected on Election Day, not later (absent circumstances not present here), and that due process requires a state to give effect to the fundamental right to vote for president. What’s more, such a move would justifiably be seen by much of the public as a coup. It is a terrible idea.
But even more fundamentally, the Supreme Court has unanimously undercut the core premise to this argument for legislative superpower. And we should know. We argued the opposite before the court this year, in the context of presidential electors, rather than state legislatures, going rogue—and we lost.
The Supreme Court has unanimously undercut the core premise to this argument.
www.lawfareblog.com
Thankfully, it appears very unlikely that any legislature will accept Mark Levin’s challenge, and select a slate contrary to the votes of its people. But if any legislature were to take up the call, the Supreme Court would be asked to review that unprecedented act. Its ruling should be clear that this move is illegal. Prominent originalist scholars
have noted how far Chiafalo strayed from the framing design. It would be extraordinary now if, in the name of originalism, the justices would sanction an even greater perversion of the original design. The greatest charge against originalism is partisan selectivity. We do not believe that selectivity is inherent to originalism. But few would agree if, after ignoring the Framers in Chiafalo, the Supreme Court invoked the Framers now to defeat a candidate who has won an absolute majority of the public’s vote. Whatever else that result would say, it would certainly not communicate that “[w]e the people rule.”